Delhi District Court
Whether The vs Unknown on 29 March, 2007
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IN THE COURT OF SH. S.K. SHARMA
PRESIDING OFFICER LABOUR COURT-X :
KARKARDOOMA, DELHI.
Ref. No. : F.24(893)/2004-Lab.
Dated : 4.8.04
I.D. No. : 437/05
Between
The Management of
M/s Delhi Transport Corporation,
I.P. Estate, New Delhi.
&
Its workman Sh. Rakesh Singh.
S/o Sh. Dharam Singh,
C/o Delhi Labour Union,
Aggarwal Bhawan,
G.T. Road, Tis Hazari,
Delhi-54.
AWARD
The workman Sh. Rakesh Singh raised an
industrial dispute regarding the termination of his
services by the management of M/s Delhi Transport
Corporation. The appropriate Govt. on being
satisfied regarding the existence of industrial dispute
between the parties, made a reference for
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adjudication. The said reference is as under:
"Whether the services of Sh.
Rakesh Singh Badge No. 26306
S/o Sh. Dharam Singh have
been terminated illegally and/
or unjustifiably by the
management and if so, to what
relief is/are, he/they entitled,
what directions are necessary
in this respect?"
Thereafter, the workman filed statement of
claim. It is stated by the workman in the statement
of claim that he joined the services of the
management w.e.f. 1.1.1999 as a "Retainer Crew
Conductor" on compassionate ground. It is stated
that he was not given the appointment on permanent
basis. It is further stated by the workman in his
statement of claim that on 27.5.2001, he fell ill and
therefore, he went on leave. After getting recovered
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from his illness, on 16.1.2002, he reported to join his
duty and submitted his medical certificate, but, he
was not allowed to join duty and in this way, his
services were illegally terminated by the
management. It is stated by the workman that he
completed 240 days of his continuous service with
the management. The workman issued demand
notice dt. 17.10.2003 to the management but the
same was not replied by the management, nor he
was reinstated.
Notice was issued to the management. The
management put appearance and filed written
statement wherein, it denied the version of the
workman as made in the statement of claim. It is
stated in the W.S. that the workman was appointed
by the management on temporary/ daily wages
basis. It is further stated that the workman
remained unauthorizedly absent from his duty for
184 days from June' 2000 to May' 2001 and he also
remained absent w.e.f. 28.5.2001 to 6.6.01 and as
the workman was under probation period, his
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services were dispensed with as per the terms and
conditions of agreement which was executed at the
time of his appointment.
The workman filed rejoinder wherein, he
denied the version of the management as made in
the written statement and reiterated his averments
as made in his statement of claim.
On 14.9.2005, from the pleadings of the
parties, my ld. Predecessor framed the following
issues :
1. Whether the claimant was temporary daily
wager as alleged by the management ?
2. Whether it is the workman who remained
unauthorizedly absent in the year 2000-2001
as alleged by the management ?
3. Whether the workman is gainfully employed as
alleged by the management ?
4. As per terms of reference.
In order to prove his case, the workman has
examined himself as WW1 and filed his affidavit Ex.
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WW1/A. The workman has also filed documents Ex.
WW1/1 to Ex. WW1/18 in support of his evidence.
In his affidavit Ex. WW1/A, the workman has
supported his case as mentioned in the statement of
claim.
The management in order to prove its case
has examined one Sh. Mohd. Yusuf as MW1 who has
filed his affidavit Ex. MW1/A. In his affidavit Ex.
MW1/A Sh. Mohd. Yusuf has supported the case of
the management as mentioned in the written
statement that the workman was appointed on
temporary/ daily wages. It is also stated in his
affidavit that the workman did not complete 240
days of his continuous service with the management.
I have heard ld. ARs for the parties. I have
also perused the file and the case law relied upon by
the ld. AR for the workman.
My findings on the issues are as under :
Issue No. 1
The case of the workman is that he joined
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the services of the management w.e.f. 1.1.99 and he
was given employment on compassionate ground,
but he was not appointed on permanent basis. The
case of the management is that the services of the
workman were temporary/ daily wages. In support
of their contention, the workman has filed his
affidavit Ex. WW1/A and the management has filed
the affidavit of Sh. Mohd. Yusuf as Ex. MW 1/A.
Now, the question is that whether the workman was
appointed on temporary basis or on permanent
basis. In this regard it is important to note that the
workman in his cross examination has admitted that
he was a daily wager and he was not permanent.
Therefore, from the statement of the workman, it is
clear that he was a daily wager and he was not a
permanent employee of the management. therefore,
I am of the view that it is proved that the workman
was a temporary/ daily wager.
Accordingly, the issue is decided in favour
of the management and against the workman.
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Issue No. 2 :
The case of the management is that the
workman remained unauthorizedly absent for 184
days from June' 2000 to May' 2001. On the other
hand, the workman has denied that he remained
unauthorizedly absent.
The onus to prove this issue is upon the
management. The management has examined Sh.
Mohd. Yusuf as MW 1 who has filed his affidavit Ex.
MW1/A wherein he has stated that the workman
was absent from June 2000 to May 2001 and he did
not attend duty for 184 days. It is important to note
that the workman did not cross examine the MW1
Sh. Mohd. Yusuf on this point. Hence, the testimony
of MW1 regarding unauthorized absence of the
workman remained uncontroverted and therefore, in
my view, there is no reason to disbelieve his
testimony regarding unauthorized absence of the
workman. Accordingly, it is proved that the
workman remained unauthorizedly absent in the
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year 2000-2001.
The case of the workman is that he was ill
from 27.5.01 to 15.1.2002. In this regard he has
filed the photocopies of the medical record. It is
important to note that the said medical record has
not been proved in accordance with law. Moreover,
the said medical record pertains to the period from
28.5.2001 to 15.1.2002 and the case of the
management regarding unauthorized absence of the
workman for 184 days is, from June' 2000 to May'
2001. Under thee circumstances, the said medical
record is of no help to the workman.
The issue is decided accordingly, against
the workman and in favour of the management.
Issue No. 3 :
The case of the management is that the
workman is gainfully employed. On the other hand,
the case of the workman is that he is not gainfully
employed.
The onus to prove this issue is upon the
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management. As discussed above, in order to prove
its case, the management has examined Sh. Mohd.
Yusuf who has filed his affidavit Ex. MW1/A. In this
regard, it is important to note that the management
did not lead any evidence to show that the workman
was gainfully employed. Accordingly, I am of the
view that the management has failed to prove that
the workman was gainfully employed.
Accordingly, the issue is decided in favour
of the workman and against the management.
Issue No. 4 :
The case of the workman is that his
services were illegally terminated by the management
in violation of Section 25 F, G and H of I.D. Act. On
the other hand, the case of the management is that
the workman was a temporary/ daily wager and his
services were dispensed with as per the terms and
conditions of the agreement executed between the
workman and the management at the time of his
appointment.
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It was submitted by the Ld. AR for the
management that there is no violation of Section 25
F, G and H of I.D. Act as the claimant was a
temporary/ daily wager. On the other hand, it was
submitted by the AR for the workman that there is
no distinction between the temporary and a
permanent employee and the termination of the
services of the temporary employee without the
compliance of the provision of Section 25 F of I.D.
Act, is illegal. In this regard, Ld. AR for the
workman has relied upon the judgement of the
Division Bench of the Hon'ble High Court of Delhi
which is reported as "2006 (88) DRJ 75 (DB)"
wherein it was held as under :
"Termination of temporary
employee claimed to be
probationer - There is no
distinction between permanent
employee and a temporary
employee - Termination of
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service without complying with
provisions of Section 25-F, held
to be illegal."
Therefore, in view of this judgement I am of
the view that there is no distinction between the
temporary and permanent employee and therefore,
the termination of the services of the workman which
were temporary, without compliance of the provision
of Section 25-F would be illegal.
It was contended by the Ld. AR for the
management that the workman is not entitled to get
benefit of the provision of Section 25-F of I.D. Act as
he did not complete 240 days of his services with the
management in a year preceding the date of his
alleged termination.
It is well settled position of law to claim
benefit under 25 F of I.D. Act, the claimant is
required to prove that he has worked for 240 days
with the management in a year preceding the date of
his termination. It is important to note that the AR
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for the workman has relied upon the judgement
"2006 (88) DRJ 75 (DB)" (Supra). The perusal of the
said judgement shows that the Division Bench of the
Hon'ble Delhi High Court in para No. 9 of the said
judgement has held that the provision of Section 25
F of I.D. Act has to be complied with, if the workman
had completed 240 days of services in a year
preceding the date of his termination. Hence, from
the judgement relied upon by the ld. AR for the
workman, it is clear that the completion of 240 days
of services with the management is necessary for the
claimant to get benefit U/s 25 F of I.D. Act.
The same view has been held by the Hon'ble
Supreme Court of India in a case which is reported
as " 2006 LLR-250 " wherein it was held as under :
"Industrial Disputes Act, 1947
- Sections 25B & 25F -
Continuous service of one year
and non-payment of
retrenchment compensation at
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the time of termination-
Requirement of 240 days of
continuous service - Burden to
prove is upon workman to
adduce evidence to prove the
said factum- Evidence relied
upon- In this case the workman
did not establish that he has
worked for 240 days in the
preceding 12 calender months-
Hence, benefit of section 25F is
not available to respondent/
workman- Award of the Labour Court and the judgment of the High Court in awarding reinstatement set aside."
Thus, it is clear from the above discussed case law, that the service of 240 days in a year preceding the date of his termination is necessary for the claimant.
# 14 # The onus to prove that the workman has completed 240 days of his service, lies upon the workman as held by the Hon'ble Supreme Court of India in a case reported as "2006 LLR-250" (supra). In this case, the workman has filed his affidavit Ex. WW 1/A. He has also filed documents Ex. WW 1/1 to Ex. WW1/18. Ex. WW1/1 is copy of demand notice. Ex. WW1/2 is the copy of the postal receipt. Ex. WW1/3 is the copy of acknowledgment card. All the said three documents do not show in any manner that the workman worked with the management for 240 days in a year preceding the date of his alleged termination. Ex. WW1/4 is the copy of statement of claim filed by the workman before the conciliation officer. Ex. WW1/5 is the copy of written statement filed by the management in the conciliation proceeding. Ex. WW1/6 is the copy of Rejoinder filed by the workman in the conciliation proceeding. All the said three documents do not show in any manner that the workman worked with the management for 240 days in a year preceding # 15 # the date of his alleged termination. Ex. WW1/7 and Ex. WW1/8 are the copies of ultrasound reports. Both these documents also do not show that the workman worked with the management for 240 days in a year preceding the date of his alleged termination. Ex. WW1/9 the copy of representation which also does not show that the workman completed 240 days of his services with the management in a year preceding the date of his alleged termination. Ex. WW1/10 is copy of medical certificate-cum-fitness. Ex. WW1/11 is copy of O.P.D. card. Ex. WW1/12 is the copy of discharge card. None of these documents shows that the workman completed 240 days of his services with the management. Ex. WW1/13 to Ex. WW1/16 are the copies of letters written by the management to the workman. Ex. WW1/17 is the copy of receipt of application of the workman received by the management. Ex. WW1/18 is the copy of appointment letter issued to the workman by the management. These documents also do not show # 16 # that the workman completed 240 days of his services with the management in a year preceding the date of his alleged termination.
Thus, it is clear that none of the documents filed by the workman shows that he worked with the management for 240 days in a year preceding the date of his alleged termination. Now, we are left with the affidavit of the workman which is Ex. WW1/A wherein, he has stated that he has worked with the management for 240 days. Now, the question is that whether the affidavit of the workman in this regard is a sufficient proof to show that he has worked with the management for 240 days.
The Hon'ble Supreme Court of India in a case reported as "2004 (103) FLR-192" has held as under :
"Industrial Disputes Act, 1947
- Section 25-F, 25-G and 25-H- Termination/ disengagement of workman- Challenge to-On # 17 # ground that he had worked for more than 240 days in the previous year-And termination was without compliance of provisions of section 25-F, 25-G and 25-H- Held,mere filing of an affidavit and giving his own statement before Labour Court to said effect- Not enough evidence to prove said fact."
The Hon'ble Supreme court of India in another case reported as "2006 (8) SRJ 60" has held that it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of employer.
Thus in view of the judgements "2004 (103) FLR-192" (Supra) and "2006 (8) SRJ 60"
(Supra), I am of the view that the workman has not led sufficient evidence to prove that he has worked # 18 # for 240 days with the management.
Now, one more question arises in the present case that whether any domestic enquiry was required to be conducted before the termination of the workman. This question was dealt with in recent judgement of the Hon'ble Delhi High Court which is reported as "2007 I LLJ 262". In that case, the claimant was a Driver on daily rated/ casual basis. His services were terminated by the management as the case of the workman was that he completed 240 days of service and the management did not conduct any enquiry regarding his misconduct in that case. The plea of the workman was not accepted by the Court. In the said judgment, it as held as under:
"Person working as Driver on daily rated/casual basis - His disengagement, did not entitle him to reinstatement or regularisation."
# 19 # The perusal of the said judgement shows that in case of the temporary employees, no domestic enquiry is required to be conducted.
The AR for the workman has relied upon the judgements which are reported as "2006 VI AD (DELHI) 537", "2006 II AD (DELHI) 17" and "2004 VIII AD (S.C.) 444".
I have perused the said judgements. The perusal of the same shows that the said judgements mainly deal with the back wages. The AR for the workman has also relied upon the judgement of the Hon'ble Supreme Court of India which is reported as "1993 Supreme Court Cases (L &S) 723". I have perused the said judgement and I am of the view that this judgement is of no benefit for the workman as he did not complete 240 days of his services with the management.
In view of the above discussion that the workman has not completed 240 days of his services with the management and keeping in view the case law discussed above, I am of the view that the # 20 # workman is not entitled to the benefit of Section 25 F, G and H and accordingly, he has failed to prove that his services were illegally terminated by the management.
In view of the above discussion, I am of the view that the workman is not entitled to any relief.
The Reference is answered accordingly and the Award is passed. The Ahlmad is directed to send the Six copies of this Award to the appropriate Govt. The file be consigned to record room. Announced in open Court on 29th March' 2007.
(S.K. Sharma) Presiding Officer Labour Court-X Karkardooma Courts, Delhi.