Delhi District Court
Sh. Kamal Kishore vs . M/S. Sriram Offset Printers Did No. ... on 6 February, 2013
Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0751442008
Type of Case Direct Industrial Dispute
Date of Institution 18.09.2008
Evidence concluded on 07.11.2012
Final arguments heard on 23.01.2013
Date of Award 06.02.2013
WORKMAN Vs. MANAGEMENT
Sh. Kamal Kishore S/o Sh. Sewa M/s. Sriram Offset Printers, F -
Ram R/o C - 498, Phase - II, 17, Udyog Nagar, Peeragarhi,
Nangloi Extension, New Delhi - Delhi.
110041. Through Delhi Industry
And General Employees Union
(Regd.), 2151 / 3A2B, New Patel
Nagar, Delhi - 110008.
PRESENT:
None for the parties.
AWARD :-
1. The workman Kamal Kishore filed this direct industrial dispute before this court
U/S 10 (4A) of the Industrial Disputes Act against the Management M/s. Sriram
Offset Printers.
2. As per his claim, the workman Kamal Kishoer was working with the
Management M/s. Sriram Offset Printers 15.02.2005 as a "Cutting
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Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08
Man". He pleaded his last drawn salary as Rs.4,500/ per month. It is the case of
the workman Kamal Kishore that on 28.07.2008 his services were illegally
terminated by the Management. This claim does not furnish any other detail of
what happened as a series of conduct between the parties on or around the alleged
date of termination i.e. 28.07.2008. Although several legal pleas have been written
in the claim.
3. A written statement / reply was filed on behalf of the Management M/s. Sriram
Offset Printers with the preliminary objection that this claim was not maintainable
U/S 10 (4 A) of the Industrial Disputes Act or that the claim was false and
frivolous. In reply on merits it was denied that the services of the workman were
terminated on 28.07.2008. A specific plea was taken that he was appointed on
07.02.2005 and he kept working as such till 19.06.2008. His last drawn salary was
Rs.4037/ p.m.
4. In this background of pleadings of the parties, this court vide its orders dated
29.10.2009 framed the following issues :
1. Whether the services of the claimant were
terminated illegally or unjustifiably by the
Management on 28.07.2008? OPW.
2. Whether the workman abandoned himself from the
services w.e.f. 26.07.2008? OPM.
3. Relief.
5. Thereafter the workman Kamal Kishore examined him as WW1 through his
evidence affidavit Ex. WW1/A and almost reiterated his claim in material aspects.
He relied upon five documents. However, these documents were objected to by the
ld. counsel for the Management as these were the photocopies. Out of
these five documents Ex. WW1/1 is the photocopy of ESI card of the
workman. Ex. WW1/2 is the photocopy of the PF Slip. Ex. WW1/3 is
the copy of a demand letter dated 31.07.2008. Ex. WW1/4 is its postal
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Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08
receipt and Ex. WW1/5 is a letter written to the Assistant Labour Commissioner.
6. On perusal of record of this case file, it appears that on 09.03.2011 this court after
discussing the matter with both the parties, fixed a date of 14.03.2011 when this
workman was to join his duties with the Management. On 23.08.2011 ld. counsel
for the Management moved an application that the workman was not ready to
continue with his services pursuant to this court's orders. The workman has also
moved a similar application that the Management was not taking him back on duty.
7. During his cross - examination the claimant / workman admitted that during the
course of service he did not file any written complaint against the Management.
He deposed that his last drawn salary was Rs.4,500/ per month. Regarding his
joining of services, he stated that on the date so fixed by the court for rejoining of
duties, he did not met with the owner of the Management and he intimated this
fact to the guard. He admitted that on 14.03.2011 he went to the Management but
left the factory premises after marking his attendance.
8. After that the respondent / Management showed him a document Ex. WW1/M1x.
Ex. WW1/M1x is a letter written to him by the Management intimating him that he left the factory premises after marking his attendance and without seeking permission of the respondent / Management. When this document was put to this workman, he admitted that his residential address written on the document Ex. WW1/M1x was correct.
9. The Management did not examine any witness in its favour and no ME was led altogether.
10. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
11. The Hon'ble Supreme Court in case Workmen of Nilgiri Coop.
Marketing Society Limited Vs. State of Tamil Nadu & Ors. 2004 LLR 351 has observed as follows : AWARD Page 3 of 11 Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08
49. "It is a well settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
50. "In N.C. John Vs. Secretary Thodupuzha Talul Shopand Commercial Establishment Workers' Union and Others [1973 Lab. I.C. 398], the Kerala High Court held :
"The burden of proof being on the workmen to establish the employer - employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer - employee relationship."
51. In Swapan Dos Gupta & Others vs. The First Labour Court of West Bengal and Others, [1975 Lab. IC 202] it has been held that "Where a person asserts that he was a workman of the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company, but of some other person."
12. The law was also elaborated by the Hon'ble Delhi High Court in UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 and in Automobile Association of Upper India Limited Vs. PO Labour Court & Anr. 2006 LLR
851.
13. Limited Vs. PO Labour Court & Anr.
In Automobile Association of Upper India (SUPRA) it was observed by the Hon'ble Delhi High Court that, 'it is well settled that the primary burden of proof to establish a plea rests on a person so claiming in this behalf reference can be appropriately made to the judicial pronouncement in III (2001) SLT 561; (2001) 9 SCC 713 (715), State of Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar, III (2004) SLT 180; 2004 LLR 351 (para 49), Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu, 2001 LLR 148, Dhyan Singh Vs. Raman Lal, 1996 Lab. I.C.202, Swapan Vs. First Labour Court,West Bengal, and 1973 Lab. I.C. 398 N.C. John Vs. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is AWARD Page 4 of 11 Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08 claiming the same.''
14. In UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 (SUPRA), it was held by the Hon'ble High Court, 'Now I shall deal with the second issue relating to burden of proof : Principles regarding burden of proof are stipulated in Chapter - VII of Indian Evidence Act, 1872 (Section 101 to 114A). General Principal, which is laid down in these sections particularly Section 101 and 102 is that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court in order to establish the existence or non - existence of a fact contended to by a party. Burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. Dealing with aforesaid Principles contained in Indian Evidence Act, Mr. O.P. Malhotra in his book entitled "The Law of Industrial Disputes", Fifth Edition (Volume 1) Page - 842 states as under : 'The expression 'burden of proof' has two distinct and often blurred meanings viz. (i) the burden of proof as a matter of law and pleadings. This, burden, as it has been called, for establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, and (ii) the burden of proof in the sense of introducing evidence. In the Indian Evidence Act, Sec. 101 uses the expression in the former sense while Sec. 102 uses it in the latter sense. The former type of onus viz. The burden of proof of the facts in issue is usually known as the general burden of proof or the burden of proof on pleadings. This type of burden of proof has been called by jurists, the 'legal burden', the legal or persuasive burden is the burden borne by the party who will loose the issue unless he satisfies the Tribunal of the facts to the appropriate degree of conviction and it is aptly termed the "Risk of Non Persuasion" by Vigmore. The phrase 'legal burden' was coined by Lord Denning while the phrase 'persuasive burden' was used by Dr. Glanville Williams. Other jurists have referred to it as the "burden of proof on the pleadings". This burden is entitled to be called the legal burden because its incident is determined by the substantive law, and AWARD Page 5 of 11 Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08 the adjective persuasive gives some indication of its real nature. The pleadings do not always indicate which party bears the burden, and the answer to a somewhat controversial question is assumed if it is said to be "fixed", for the epithet is designed to emphasis the fact that this burden does not shift in the course of a trial a matter of words about which there is room for two views in the case of issues to which certain rebuttable presumptions of law are applicable. The latter type of onus is called the professional or the tactical burden. The burden of proof in the first sense is fixed at the beginning of the trial by the state of pleadings and it is settled as a question of law. Remaining unchanged, throughout the trial exactly where the pleadings place it and never shifts in any circumstances whatsoever. The burden of proof in the second sense, however, constantly shifts as one scale of evidence or the other preponderates".
The point of consideration is as to whether these rules of evidence would be applicable even in adjudication pleadings under the Industrial Law. This question was decided by Supreme Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. (1979) II LLJ 194 wherein Supreme Court observed that through the Adjudicatory Authorities under the Act have all the trappings of a court, they are not hide bound by the statutory provisions of the Evidence Act Section-11 (3) of the Industrial Disputes Act confers on them powers of a Civil Court under the Code of Civil Procedure only in respect of matters specified therein. Such Authorities are created for adjudication of Industrial Disputes between the parties arrayed before them. Their function being of a quasi - judicial nature, they have to adjudicate such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with Rules of Natural Justice. Therefore, any party appearing before anyone of such Authorities must make a claim or demur the claim of the other side. When there is a burden upon the party to establish a fact so as to invite a decision in its favour, it has to lead the evidence. The obligation to lead evidence to establish an averment made by a party is AWARD Page 6 of 11 Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08 on the party making the averment. The test would be who would fall if no evidence is led. Such party, therefore, must seek opportunity to lead evidence.
15. In the light of this law this court is of the view that the requirement of evidence by the workman and the Management is not simultaneous. It is a primary duty of the claimant to show that at least a prima facie case exists in his favour and thereafter if he succeeds in doing that the Management's evidence would be taken into consideration either in rebuttal or in the establishment of an alternative factual circumstances put forward by it in defence. It is clear that burden of proving facts keeps shifting from one party to the other.
ISSUE NO. 2 :
16. In this issue this court has to adjudicate upon the factum if the workman abandoned himself from the services w.e.f. 26.07.2008.
17. In this issue the Management has to prove that the workman abandoned his services w.e.f. 26.07.2008. But the Management did not examine any witness nor did it lead its evidence at the time of filing documents. A document i.e. Form 9 (Revised) was filed on record but it is not clear as to why the same was not exhibited on record during the course of evidence. Therefore, this document would be treated as "Orphan Document" and would not be considered for any adjudication.
18. For the reason of failure of the Management to examine any evidence, its onus to prove this issue remained undischarged and hence this issue is held to be "Not Proved" by the Management.
ISSUE NO. 1 :
19. In this issue this court has to adjudicate upon the factum if the services of the claimant were terminated illegally or unjustifiably by the Management on 28.07.2008.
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20. The facts of this case are quite peculiar because the claim of this claimant / workman describes several legal propositions in para 3 discussing as to why the termination of services of this claimant / workman were against the law. But this entire claim does not give details of facts as to what did happen between the parties on the alleged date of termination i.e. 28.07.2008. This claim gives only the date of appointment and the date of termination of the services of the claimant. The same defect was present in the evidence affidavit also.
21. The documents relied upon by the claimant as Ex. WW1/1 and Ex. WW1/2 were the photocopies and the Management had put objections to it. But despite that objection the originals were never brought on record. It has not been clear before this court as to what would be a more appropriate place in this claim to prove those documents in original other than this court adjudicating his claim of industrial dispute. Without the production of original documents this court receives a doubt regarding truth and veracity of the documents so produced in the form of photocopies by the claimant / workman.
22. During the pleadings, the Management has also accepted the date of appointment of the workman as 07.02.2005. There was a bit confusion in the date of termination of services. The workman claimed it as 28.07.2008 and on the other hand, the Management stated it to be 26.07.2008 and stated that after 26.07.2008 the workman remained absent from the duties.
23. The evidence before the court is highly deficient as to what had happened between the parties on 26.07.2008 and 28.07.2008 or around these two dates. The workman had also pleaded that his salary was not paid. But even for that purpose no evidence was placed on record.
24. Therefore, this court in this evidence - deficient conditions, can have only an approximation regarding facts and circumstances of the case and nothing is proved to the limits of logical expectancy. On the basis of the pleadings and the proof whatever they have adduced, this court is of the view that this claimant / workman had worked with the Management nearly for five years.
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25. The point of last drawn salary is also disputed. The workman pleaded it as Rs.
4,500/ per month and the Management pleaded it as Rs.4,037/ per month. But the Management proved nothing despite opportunity. Therefore, this court holds that it is also an obscure and ambiguous area in this case.
26. The Management has neither pleaded nor proved that any enquiry was ever held by it in the circumstances of absence of this workman. The Management appears to have not complied with the law as laid down by the Hon'ble High Court in Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour) and Ors. MANU/DE/0541/2005 and by the Hon'ble Supreme Court in Punjab and Sind Bank Vs. Sakattar Singh (2001) 1 SCC 214 Management was obliged to hold an enquiry in case a workman stopped attending his duties. In the present case it is neither the pleadings nor the evidence tendered by the Management to show that any such enquiry was ever held.
27. Therefore, this court holds that the service of this workman was concluded in a set of circumstances which were not purely legal. But these circumstances were against the wishes and expectations of the workman so as to constitute 'retirement' within the meaning of Section 2 (oo) of the Industrial Disputes Act. Section 2 (oo) of the Industrial Disputes Act reads as under : Section 2 (oo) Industrial Disputes Act defines the retrenchment as follows : "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the AWARD Page 9 of 11 Sh. Kamal Kishore Vs. M/s. Sriram Offset Printers DID No. 280/08 workman as a result of the non -
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill - health.
RELIEF :
28. These are two cases pending against the same Management. In the case titled as Sh.
Rajender Singh Vs. M/s. Sriram Offset Printers baring DID No. 279/08 the workman Rajender Singh joined his services with the Management on 01.07.2003 and his last drawn wages were Rs.8,000/ per month and his services were terminated by the Management on 28.07.2008. This court after considering the entire facts and circumstances of that case granted an amount of Rs.15,000/ as compensation to the said claimant Rajender Singh. In the present case the claimant Kamal Kishore started working with the Management since 15.02.2005 and his last drawn wages was Rs.4,500/ per month. The services of this claimant Kamal Kishore were terminated on 28.07.2008.
29. In these ambiguous and amorphous set of circumstances, this court is not in a position to formulate a well caliberated relief to the workman. But to provide a response to the parameters he pleaded in his claim, an amount of Rs.9,000/ is deemed to be proper as compensation to be given to him against the termination of his services.
29. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
30. The documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
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31. File be consigned to the record room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 06.02.2013 AWARD Page 11 of 11