Delhi District Court
Between vs The on 30 July, 2008
I.D. NO. 313/03
IN THE COURT OF DR. SHAHABUDDIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO.313/03
Date of Institution : 04.09.2003
Date of Decision : 30.07.2008
BETWEEN:
Workman Sh. Santer Pal, c/o. Shramik Ekta Manch, 208, Pocket-D,
Dilshad Garden, Delhi.
. . . . The workman
AND
M/s. Rajesh Transport Co., D-115, South Ganesh Nagar, Near Mother
Dairy Flats, Delhi -92.
. . . . The Management
AWARD
1. The Secretary (Labour), Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the parties
named above for adjudication to this Labour Court vide notification
No. F. 24(1522)/2003/Lab.-13180-84 dated 29.08.03 with the
following terms of reference.
"Whether the services of Sh. Santer Pal, S/o Sh.
Sukhan Lal have been terminated illegally and/or
unjustifiably by the management and if so, to
what relief is he entitled and what directions are
necessary in this respect?"
2. After receipt of the reference, notice was sent to the
workman who filed his statement of claim and averred in the same
that he was employed in the post of Accountant on 25.5.2000 in M/s.
Rajesh Sharma Transport Company which was engaged in transport
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business of carrying milk from Parag Plant, Pratap Pur, Meerut on
behalf of Mother Dairy Depot; that his last drawn salary was
Rs.3000/- per month; that he had unblemished service record; that the
management did not maintain service record of the workman with the
malafide intention; that he was paid through vouchers; that the
workman asked for minimum wages and other facilities from the
management upon which the management got annoyed and
terminated his services on 31.10.2002 without following the due
process of law; that the termination of the workman is illegal and in
violation of section 25 F of Industrial Disputes Act, 1947 (in short
I.D. Act) and that it was against the natural justice. Lastly, a prayer
was made for reinstatement of the workman with full back wages,
continuity of service and other consequential benefits.
3. Notice of the statement of claim was issued to management
and all the claims of the workman were denied strongly in the written
statement (in short W/S) filed on behalf of the management. In W/S,
it has been submitted that the workman had not come before the court
with clean hand; that there was no institute working in the name of
M/s. Rajesh Transport Company; that Rajesh Sharma was only a
commission agent; that the workman was only working with Rajesh
Sharma as a part-time Assistant in his business of commission agent;
that workman came only for 3-4 hours a day on part-time basis; that
the services of the workman were not terminated on 31.10.2002 as
alleged but he left the services on his own; that the workman was
already working somewhere else and he only devoted 3-4 hours as
part-time job with the management; that I.D. Act was not applicable
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to the management.
4. On the basis of the pleadings of the parties, following issues
were framed on 25.04.2005:-
1. Whether respondent is not an establishment as alleged,
if yest, to what effect?
2. Whether the services of the workman have been terminated illegally and unjustifiably?
3. Whether the workman is entitled to any relief, if so, what?
5. In support of his claim, the workman examined himself as WW1 and also submitted his affidavit Ext. WW1/A on record.
6. On the other hand, affidavit of Sh. Rajesh Sharma was filed as MW1/A on record who was examined as MW1 in support of the averments of the management.
7. Oral final arguments were heard from Sh. Avdesh Singh, AR for workman and Proxy AR Sh. Ram Dinay for management on 18.7.08. The written arguments on behalf of both sides were also filed on record.
8. In my considered opinion, the written arguments are almost the repetitions of the averments of both parties in this matter. In the oral arguments also there were almost the repetition of the statement of claim and W/S on behalf of the workman and management respectively.
9. I perused the entire judicial file minutely and my issue wise decision is as under.
Page 3 of 7 I.D. NO. 313/03 ISSUE NO. 110. In my considered opinion, the burden to prove this issue was upon the management. In the affidavit of MW1 namely, Rajesh Sharma, it has been mentioned that he was working as Commission agent and he used to take milk from Parag milk Plant, Partapur, Meerut and used to deliver it to Mother Dairy booths and get the commission from Mother Dairy for this work; that he had no company in the name of M/s. Rajesh Transport Company; that the workman concerned was working with him as a partner in the above stated commission work; that workman used to come to the working place of the deponent only for few hours in a day and was looking after the financial work for which he was paid his share; that the deponent used to do this job as a commission agent on an individual basis; that no Labour Inspector ever visited the work place of the deponent and that no legal demand notice was ever received by the deponent at any point of time from the workman; that the workman was guilty of misappropriation of funds of the deponent and in order to cover up his own wrong, the workman has filed this case against the deponent; that M/s. Rajesh Transport Company and Santerpal were never under the employment of deponent and as such provisions of I.D. Act were not applicable. MW1 has also deposed in support of the facts of his affidavit. To my considered opinion, there is no substantial rebuttal of these averments in the cross-examination of MW1 conducted by AR for workman.
11. WW1, Santerpal, also admitted in his cross-examination conducted on behalf of the management to the effect that he did not Page 4 of 7 I.D. NO. 313/03 know where the office of the management was situated; that there was no sign board of the management at the said address; that the management had not issued any appointment letter to him; that he had not placed on record any document to show that the office of the management was situated at D-115, South Ganesh Nagar in front of Mother Dairy Flat, Patparganj, Delhi; that he did not have any document to show that the management ever existed; that he had sent the demand letter to M/s. Rajesh Transport Company; that 18-20 people were working with the management but no attendance or wages register was maintained by the management. It also shows that workman himself is not aware about the existence of the management as a transport company.
12. In view of the above discussion, I am of the considered opinion that the management has been successful in proving to the satisfaction of this court that the respondent was not an establishment as alleged and hence, there was no question of applicability of provisions of I.D. Act in this matter. Accordingly, issue no. 1 is decided against the workman and in favour of the management.
ISSUE No. 213. In my considered opinion, the burden to prove this issue was upon the workman. The workman claimed that he had been employed on the post of Accountant on 25.5.2000 with the management and that his services were illegally terminated on 31.10.2002 without following the due process of law. It means that the workman allegedly worked for more than two years. In other words he allegedly worked with the management for a continuous Page 5 of 7 I.D. NO. 313/03 period of 240 days during the preceding 12 months from the alleged date of termination of his services by the management. In that way, the initial burden was upon the workman to prove that he worked continuously for 240 days during the preceding 12 months. There is also a recent judgment of Hon'ble Supreme Court on this point given in a case, namely Sita Ram & others vs. Moti Lal Nehru Farmers Training Institute, 2008 LLR page 549. The Hon'ble Supreme Court of India held in para 13 of this Judgment mainly to the effect that it was for the workman to prove that he had actually worked for more than 240 days in the preceding 12 months of the date of his termination. The Hon'ble Delhi High Court also endorsed thid view (in para 30), in a case reported as Automobile Association Upper India vs. P.O. Labour Court II and Another, 130 (2006) DLT 160.
14. In view of the above mentioned judgments of Hon'ble Supreme Court and Hon'ble Delhi High Court, the onus was upon the workman to prove by cogent evidence that he actually worked continuously with the management for the period w.e. f. 25.5.2000 to 31.10.2002.
15. From the evidence on record, I am of the considered opinion that the workman has miserably failed to substantiate continuity of his services with the management for the alleged period. It is also evident from his deposition as WW1 as mentioned above.
16. With due respect, the authorities relied upon by the workman in his written arguments do not help the case of the workman in this matter because to my considered opinion, the facts and circumstances of the authorities relied upon are different from the facts and Page 6 of 7 I.D. NO. 313/03 circumstances of the case under discussion. In view of facts and circumstances of the instant case, I am of the considered opinion that the workman has miserably failed to substantiate his allegation that his services were terminated illegally and/or unjustifiably by the management. Accordingly, this issue is also decided in favour of the management and against the workman.
ISSUE NO. 3 : RELIEF
17. In view of my discussion on issue nos.1 & 2 above, I am of the considered opinion that the workman is not entitled to any relief in this matter and no directions are required to be given. Hence, this issue is also decided against the workman and in favour of the management.
18. The Award is passed to the above effect and the reference is answered accordingly.
19. A copy of this Award be sent to the Secretary (Labour), Govt. of NCT of Delhi as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court today (DR. SHAHABUDDIN)
on 30.07.2008 Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi
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