Delhi District Court
Smt. Shanti Devi W/O Sh. Dori Lal vs M/S Ndmc on 30 September, 2014
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX, KARKARDOOMA
COURTS, DELHI.
Ref. No. : F. 24 (306)/06/Lab./125862
Dated : 05.07.2006
I.D. No. : 427/09
Unique I.D.No. 02402C0355132006
Smt. Shanti Devi W/o Sh. Dori Lal,
C/o Mazdoor Kishan Sabha,
H.No.1, Akbar Lane, Bijali Ghar,
New Delhi110001. ...............Workman
Versus
M/s NDMC,
Palika Kendra, Sansad Marg,
New Delhi. ...............Management
Date of institution of the case : 13.07.2006
Date on which reserved for Award : 10.09.2014
Date on which Award is passed : 30.09.2014
A W A R D
The workman Smt. Shanti Devi, raised an industrial dispute
regarding the termination of her services by the management of M/s
NDMC. The appropriate Government on being satisfied regarding the
existence of industrial dispute between the parties, made a reference for
adjudication. The said reference is as under :
"Whether the services of Smt. Shanti Devi W/o Sh.
Dori Lal have been terminated by the management
I.D No. 427/09 Page 1 out of 35
illegally and/or unjustifiably and if so, to what sum
of money as monetary relief along with
consequential benefits in terms of existing
Law/Govt.notifications and to what other relief is
she entitled and what directions are necessary in
this respect?"
Thereafter, notice was issued to the workman. In the statement
of claim filed by the workman, it was stated that she was appointed with
the management as a Safaikaramchari on 19.08.1989 and getting a sum
of Rs.2,886/ per month as her last drawn wages; that at the time of
joining the management had not provided any legal facilities to the
workman such as appointment letter, Identity Card, medical leave, earned
wages, etc. which were being demanded by the workman from the
management on account of which the management got annoyed with the
workman and terminated her services on 25.10.2000 without giving any
notice; that in the year 1986, the management had changed Temporary
Muster Roll to Regular Muster Roll and had regularized the Regular
Muster Roll in its services with it but the management had not
regularized the workman and she had apprehension that her job had been
given to someone else; that her muster roll card had also been misplaced
by the management; that the management had admitted in writing in the
office of the Assistant Labour Commissioner, Kasturba Gandhi Marg,
New Delhi that the management had called her on 25.11.1995 through
I.D No. 427/09 Page 2 out of 35
letter at 10.A.M. but had asked her to go away; that the management had
assured in the office of the Assistant Labour Commissioner, Labour
Department to appoint the workman on duty which was in writing but the
management had not complied with its assurance; that at that time two
employees namely S/Sh.Dharam Pal and Karan Lal had appeared on
behalf of the management before the concerned office on authority given
to them by the management in this regard; that there were many
discrepancies in the appointment of Safaikaramcharies with the
management; that vide muster roll card No. 1414 Laxmi W/o Sh. Charan
Singh and Sh. Sunil S/o Sh. Suman had been appointed as also vide
muster roll card No. 1407 Sh. Parvesh S/o Sh.Mahesh and Sh.Krishna
S/o Sh. Chander Pal had been appointed; that in this manner by
appointing two persons on single muster roll card the management had
given proof of corruption in the matter of appointment of
Safaikaramcharies on muster roll card with it; that she was the active
member of the union and also participated in every programme of the
union, but the management has indulged in anti labour and illegal
proceeding against the workman; that the management had also not given
any reply to her last demand letter; that many workmen who had been
appointed after her and who were junior to her were still working with
the management whose names were Smt.Rani W/o Sh. Hukum Chand,
Smt. Munni W/o Sh. Lacchi Ram and Sh.Ramdeen along with others.
Hence, the workman has claimed for reinstatement, continuity of service
along with all consequential dues.
I.D No. 427/09 Page 3 out of 35
Notice of the filing of statement of claim was sent to the
management which had appeared and contested the claim filed by the
workman by filing its written statement which was later on amended on
the moving of an appropriate application on behalf of the management,
on record. In the amended written statement the management has taken
the preliminary objections that the claim statement had not been filed
within the time prescribed nor it was accompanied by the relevant
documents and list of witnesses as required under the rules and the
reference order; that the claim was therefore liable to be rejected and in
the absence of a proper claim statement a 'no dispute' award was liable to
be passed; that however, if such course of action was not acceptable at
this stage to this Hon'ble Court then it was submitted without prejudice
that the claimant be first directed to file relevant documents and list of
witnesses so as to make the claim statement complete and then only the
respondent be required to file its reply; that therefore, the present reply
was being filed with the reservation of right to file a more detailed reply after the claimant had filed the relevant documents and the list of witnesses; that the claim was liable to be dismissed as the claimant had not worked for a continuous period of two hundred forty days preceding the alleged date of termination and in fact the claimant had worked on TMR basis as a beldar and that also for specific job; that in fact, as and when such work was over, her engagement on TMR basis also came to an end; that the present reference had been made mechanically to this Hon'ble Court without application of mind to the true facts and I.D No. 427/09 Page 4 out of 35 circumstances of the case and thus deserved to be dismissed with heavy costs. On merits it was submitted that the claimant was taken on temporary muster roll w.e.f. 07.12.1990 and she was engaged on muster roll as a Safaikaramchari for a specific period from time to time and that also when the work of such nature was available; that as far as payment to the claimant was concerned she was paid on daily wages basis as per the rates fixed by the Govt.of NCT of Delhi from time to time for such category of workers; that there arose no question of her being provided with the same facilities that regular and confirmed employees of NDMC were entitled to as she was only a daily wages working as a Safaikaramchari for specific work and such engagement used to end as and when the specific work was over, for which she was engaged; that it was reiterated that the claimant never worked for the period that was required to be entitled to the relief under the policy in question framed by the NDMC; that the claimant had worked only for the following durations: S.No. Date from Up to No. of days worked 1. 07.12.90 06.03.91 86 2. 21.08.92 31.10.92 68 3. 01.02.92 05.02.92 5 4. 01.01.93 31.01.93 31 5. 01.01.94 29.09.94 27
6. 23.08.99 31.01.2000 160 that thus the claimant was not covered under the said I.D No. 427/09 Page 5 out of 35 policy as well as in this para of the claim; that the question of any valid notice did not arise in the above facts and circumstances as the claimant had no legal right to claim service or reinstatement; that the question of the claimant's participating in the trade union activities were denied for want of knowledge; that the claimant was gainfully employed to the knowledge of NDMC and moreover the alleged claim filed after more than 11 years of the alleged termination proved that no action of the management was illegal or arbitrary. All other allegations were denied. Hence, it was prayed that the statement of claim be dismissed.
In rejoinder, all the averments of the statement of claim were reaffirmed and of the amended written statement of the management were denied by the workman.
On the pleadings of the parties vide order dated 27.11.2006 the following issues were framed:
(i) Whether the claimant has completed service of continuous period of 240 days in a year preceding the alleged date of termination.
(ii) As per terms of reference.
No other issue arose or pressed for and the case adjourned for workman evidence.
However, consequent to the amendment of the written statement on the part of the management, as abovesaid, vide order dated 21.02.2009 the following additional issues have been framed, on record viz.
I.D No. 427/09 Page 6 out of 35
(iii) Whether the workman has completed 240 days of services
prior to the alleged termination?
(iv) Relief.
In support of his case, workman herself appeared as WW1 in workman evidence, tendered her affidavit by way of evidence Ex.WW1/1 as also relied upon documents Mark A to E, Mark G to M, Mark O to Q and Ex.WW1/F in the same, on record.
After examining WW1, evidence on behalf of the workman has been closed, on record.
In support of its defence the management has led the evidence of Sh.Naresh Kumar, Sanitary Inspector of the management as MW1 in management evidence, who has tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents Ex.MW1/1 Colly (page nos. 1 to 5), Mark A and B in the same, on record.
After examining MW1, evidence on behalf of the management has been closed, on record.
It is seen from the record that an application has also been moved on behalf of the workman for summoning/production of certain documents/record on the part of the management as mentioned therein viz. attendance record of the workman for the period of her employment with it viz. with effect from 19.08.1989 to 25.10.2000 along with the details of her employment with the management for the said period as mentioned on her part in the same to which it is seen from the record that I.D No. 427/09 Page 7 out of 35 no reply has been filed on the part of the management to the same and in response whereof only the copies of the attendance record/muster roll in respect of the workman with effect from December, 1990 to April, 1991 has been filed on the part of the management, on record, along with copies of handwritten alleged details/duty period of the workman for the months of January, 1993, September, 1994, February, 1992 and with effect from 23.08.1999 to 31.01.2000 have been filed on the part of the management, on record, with no attendance record/muster rolls of the management in respect of the workman for the entire period of her employment viz. with effect from 19.08.1989 to 25.10.2000 as alleged by her in the instant case and as asked by her vide her subject application along with the details of her working with the management for the said period as mentioned on her part in the same, as abovesaid, having been filed on the part of the management, on record, pursuant to the same.
Final arguments have been heard. Written submission have also been filed on the part of the parties, on record.
My issuewise findings are as under: ISSUE No. 1 as also the Additional Issue No. 3 as framed on record viz. Whether the workman has completed 240 days of service with the management in the year preceding the date of her alleged termination of services on the part of the management.
It is seen from the record that the workman has appeared in workman evidence as WW1, tendered her affidavit by way of evidence I.D No. 427/09 Page 8 out of 35 Ex.WW1/1 as also relied upon documents Mark A to E, Mark G to M, Mark O to Q and Ex.WW1/F in the same. In her affidavit by way of evidence Ex.WW1/1 she has reiterated the contents of her statement of claim and deposed to the effect that she was working with the management as a Safaikaramchari on 19.08.1989 and getting sum of Rs. 2,886/ per month and at the time of joining the management had not provided any appointment letter, wages slips, leave book etc. and also not providing any benefits such as ESI, PF etc. and the workman demanded for the same thereafter the management got annoyed from the workman and terminated her services on 25.10.2000 prior given any notice and since then she was unemployed; that in the year 1986, the management had changed Temporary Muster Roll to Regular Muster Roll and regularized the Regular Muster Roll, but the management had not regularized the workman and she had apprehension that her job had been given to someone else and her muster roll card had been misplaced by the management intentionally and the labour inspector Kasturba Gandhi Marg, Delhi had admitted in writing that the management had been called at 10.A.M. and thrown out by the letter dated 25.11.1995; that the management had assured to the Assistant Labour to appoint the workman, but the management had not appointed to the workman; that at that time two workers namely S/Sh.Dharam Pal and Karan Lal had appeared before the concerned office and there was many discrepancies in the appointment of the Safaikaramcharies, in which the muster roll card No. 1414 in the name of Smt.Laxmi W/o Sh. Charan Singh and Sh.
I.D No. 427/09 Page 9 out of 35 Sunil S/o Sh. Sunil had been appointed and Sh. Parvesh S/o Sh.Mahesh and Sh.Krishna S/o Sh. Chander Pal were appointed on one muster roll card No. 1407; that there was corruption in the appointment of two persons on one muster roll card; that the workman was an active member of the union and also participated in every programme of the union, but the management was doing the illegal work against the workman; that the management had also not given any reply of her last demand letter; that the many workers, which were the juniors from her were still working in the said management, the names of the workers were (i) Smt. Rani W/o Sh. Hukum Chand (ii) Smt. Munni W/o Sh. Lacchi Ram and Sh.Ramdeen etc.who were doing the job with the said management and who had joined the management after her appointment; that she may be reinstated in her service with full back wages and continuity in service alongwith consequential benefits.
Mark A being copy of muster roll card of the management in respect of the workman, Mark B being copy of office order bearing No.GCIII/HE1/3527/D dated 06.12.1990 of the management in respect of appointment of certain employees/safaikaramcharies on muster roll with it, Mark C being copy of representation dated 23.09.2004 of the workman to the management in respect of issuance of duplicate section card on the part of the management to her, Mark D being copy of another representation dated 02.11.2000 of the workman to the management for issuance of duplicate muster roll card in her respect on the part of the management to her, Mark E being copy of a letter dated 10.11.1994 of I.D No. 427/09 Page 10 out of 35 the management to the workman in respect of appointment as a daily wages Safaikaramchari with the management, again Mark E being copy of letter dated 23.01.2004 from the Chief Minister's Office forwarding an application/representation of the workman to the management for appropriate action, Mark G being copy of office order No. O.S. (E)/4037/SCIII dated 19.09.1995 of the management in respect of taking of certain class D post temporary muster roll workers who have completed 750 days muster roll services upto 31.03.1995 on regular muster roll against the post as mentioned in their respect in the same, Mark I being copy of letter of the management to one Smt. Rani W/o Sh. Hukum Chand, Mark J being copy of letter dated 22.01.1996 of the management in respect of appointment of certain regular muster roll Safaikaramcharies and its allied categories as Safaikaramcharies and its allied categories as mentioned therein with it, Mark H being copy of circular dated 10.07.2007 of the management in respect of intimation to one Smt. Rani W/o Sh. Hukum Chand of available accommodation in the concerned type/category for allotment to employees such as her, Ex.WW1/F being copy of representation dated 23.01.2004 of the workman to the management in respect of issuance of duplicate muster roll card in her respect on the part of the management to her; Mark K being the period of working of the workman with the management in the months of January, 1993, September, 1994, February, 1992 as given by the management; Mark L, M, O, P being copies of letters dated 01.10.2004, 23.09.2004, 01.10.2004 and 26.02.2004 respectively of the I.D No. 427/09 Page 11 out of 35 workman to the management in respect of her working with it as mentioned in the same, Mark Q being alleged noting of the management in respect of appointment of the workman as temporary muster roll Safaikaramchari with it with effect from 19.08.1989.
This witness has been cross examined at length on behalf of the management in workman evidence, in which she has deposed that she gave application in the NDMC for job about three years ago; that she did not know whether she was the member of the union or not; that she was appointed as Beldar on temporary muster roll; that she was employed as daily wager; that she was getting her remunerations on daily basis; that she did not know English; that she knew the contents of her affidavit Ex.WW1/1; that she did not know what facilities were being not provided to her by the management; that she did not make any complaint in the Labour office or to the union against the management prior to filing of the present dispute; that she did not have any other documents to show that she worked continuously for 240 days in any year with the management or immediately prior to the alleged date of her termination; that no termination order in writing was given to her by the management; that it was correct that for whatever period she was appointed by the management, after completion of the said period, her services were dispensed with; that her services were terminated in February, 2002; that she did not apply anywhere else for the job; that it was incorrect to suggest that she was deposing falsely.
In her additional statement recorded in workman evidence on I.D No. 427/09 Page 12 out of 35 21.02.2009 she has deposed that she had completed more than 240 days prior to her termination by the management and records, attendance register and payment register had not been given to her despite she having demanded the same from the management in writing.
In her cross examination in the same she has deposed that she did not remember the exact date when she completed 240 days of her services with the management; that the workers who had been appointed after her and were junior to her, were regularized namely Smt.Rani, Smt.Premwati, Smt.Munni and Smt.Shobha etc.; that they all were working at the post of Sweeper; that she did not remember the date when she submitted her application for demanding aforesaid record; that it was wrong to suggest that she was deposing falsely.
Thereafter, workman evidence has been closed, on record. In management evidence, the management has led the evidence of Sh. Naresh Kumar, Sanitary Inspector of the management as MW1, who has tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents Ex.MW1/1 Colly (page nos. 1 to 5), Mark A and B in the same, on record. In his affidavit by way of evidence the MW1 has reiterated the contents of the amended written statement of the management and has deposed that the aforesaid claimant was not entitled to any claim as the claimant had not worked for a continuous period of two hundred forty days preceding the alleged date of termination and in fact the claimant had worked on TMR basis as a beldar and that also for specific job; that in fact, as and when such work was over, her I.D No. 427/09 Page 13 out of 35 engagement on TMR basis also came to an end; that the aforesaid claimant never worked for the period that was required to be entitled to the relief under the policy in question framed by the NDMC; that the claimant had worked only for following durations: S.No. Date from Up to No. of days worked 1. 07.12.90 06.03.91 86 2. 21.08.92 31.10.92 68 3. 01.02.92 05.02.92 5 4. 01.01.93 31.01.93 31 5. 01.01.94 29.09.94 27
6. 23.08.99 31.01.2000 160 that thus the claimant was not covered under the said policy; that the claimant was engaged as a Safaikaramchari as a temporary muster roll for a specific job and was paid as per the rate fixed from G.N.C.T.D. of Delhi from time to time for daily rated workers; that the question of the claimant being entitled to the facilities the regular employees were entitled to did not arise in the facts and circumstances wherein the claimant was simply engaged on temporary muster roll basis as a Safaikaramchari.
Ex.MW1/1 Colly (page nos. 1 to 5) being the attested copies of muster roll of the workmen employed as temporary muster roll Safaikaramcharies including the workman with the management with effect from December, 1990 to April, 1991; Mark A being the alleged working/duty period of the workman with the management for the month I.D No. 427/09 Page 14 out of 35 of January, 1993, September, 1994 and February, 1992; Mark B being the alleged working of the workman with the management with effect from 23.08.1999 till 31.01.2000.
This witness has been cross examined at length on behalf of the workman in which he has deposed that he was conversant with the facts of the instant case; that it was correct that the work of Safaikaramachari was available for the entire year with the management; that, however, sanction was given only for six months in a year at a time; that he had not filed any document, on record, to the effect that the services of the workman were to be utilized for a period of only six months in a year; that there was a policy for regularization of the services of such employees but only for those who had completed work of 500 days with the management; that it was wrong to suggest that the workman had worked w.e.f. 19.08.1989 to 25.10.2000; that it was wrong to suggest that the complete record of the attendance of the workman with the management as alleged by the workman had not been intentionally produced by the management; that it was wrong to suggest that the workman had worked for 240 days in any year of service with the management or that the record of the workman with the management in this regard had not been intentionally produced by the management; that it was wrong to suggest that the management was in the habit of giving breaks in the service/employment of the workman in order to deny the legal benefits of the service to the workman; that it was wrong to suggest that he was deposing falsely.
I.D No. 427/09 Page 15 out of 35 Thereafter, the management evidence has been closed, on record.
It is seen from the record that it is the case of the workman by way of her statement of claim as also affidavit by way of evidence Ex.WW1/A in the workman evidence, on record that she was appointed on the post of a Safaikaramchari on 19.08.1989 and getting a sum of Rs.2,886/ per month/her last drawn wages were Rs. 2,886/ per month; that the management had not provided her any appointment letter, wages slips, leave book etc. at the time of her joining her services and also not providing any benefits such as ESI and PF etc. to her; that the workman had demanded for the same, thereafter, the management had got annoyed from the workman and terminated her services as a Safaikaramchari with it on 25.10.2000 without giving any notice to her in this regard; that the workman was unemployed since then; that in the year 1986 the management had changed temporary muster roll to regular muster roll and had regularized the regular muster roll but the management had not regularized the workman and she had an apprehension that her job had been given to someone else; that her muster roll card had been misplaced by the management intentionally and the Labour Inspector, Kasturba Gandhi Nagar, Delhi had admitted in writing that the management had called the workman at 10:00 A.M and thrown her out by the letter dated 25.11.1995; that the management had assured the Labour Department to appoint the workman, but the management had not appointed to the workman; that at that time two workers namely S/Sh.Dharam Pal and I.D No. 427/09 Page 16 out of 35 Karan Lal had appeared on behalf of the management before the concerned office and there were many discrepancies in the appointment of the Safaikaramcharis with the management; that vide muster roll card No. 1414 in the name of Ms.Laxmi W/o Sh. Charan Singh and Sh.Sunil S/o Sh. Suman had been appointed as also Sh. Parvesh S/o Sh. Mahesh and Sh.Krishna S/o Sh. Chander Pal had been appointed on one muster roll card No. 1407, which was indicative of corruption in the matter of appointment of employees with the management in view of two persons being appointed on one muster roll card; that the workman was an active member of the union and also participated in every program of the union but the management had adopted anti labour practices qua the workman; that the management had also not given any reply to her last demand letter; that many workers, who were junior to the workman were still working with the management, the names of the workers were (i)Smt. Rani W/o Sh. Hukum Chand, (ii) Smt. Munni W/o Sh. Lacchi Ram and Sh. Ramdeen etc. who were doing the work with the management being done by the workman and who had joined the management after her appointment; that she may be reinstated in service with full backwages, continuity of service along with consequential benefits, whereas it is the case of the management in opposition to the same by way of its amended written statement and affidavit by way of evidence Ex.MW1/A of its MW1 Sh. Naresh Kumar, Sanitary Inspector along with Ex.MW1/1 Colly (page nos. 1 to 5), Mark A and B in management evidence, as abovesaid, that the claimant/workman had not worked for a period of 240 days I.D No. 427/09 Page 17 out of 35 preceding the alleged date of termination of her service and in fact the claimant/workman had worked on temporary muster roll basis as a beldar and also for specific job; that in fact, as and when such work was over, her engagement on TMR basis also came to an end; that the claimant was taken on temporary muster roll w.e.f. 07.12.1990 and she was engaged on muster roll as a Safaikaramchari for a specific period from time to time and that also when the work of such nature was available; that as far as payment to the claimant was concerned she was paid on daily wages basis as per the rates fixed by the Govt.of NCT of Delhi from time to time for such category of workers; that there arose no question of her being provided with the same facilities that regular and confirmed employees of NDMC were entitled to as she was only a daily wages working as a Safaikaramchari for specific work and such engagement used to end as and when the specific work was over, for which she was engaged; that the claimant never worked for the period that was required to be entitled to the relief under the policy in question framed by the NDMC; that the claimant had worked only for the following durations: S.No. Date from Up to No. of days worked 1. 07.12.90 06.03.91 86 2. 21.08.92 31.10.92 68 3. 01.02.92 05.02.92 5 4. 01.01.93 31.01.93 31 5. 01.01.94 29.09.94 27
6. 23.08.99 31.01.2000 160 I.D No. 427/09 Page 18 out of 35 that thus the claimant was not covered under the said policy; that the claimant was engaged as a Safaikaramchari as a temporary muster roll for a specific job and was paid as per the rate fixed from G.N.C.T.D. of Delhi from time to time for daily rated workers; that the question of the claimant being entitled to the facilities the regular employees were entitled to did not arise in the facts and circumstances wherein the claimant was simply engaged on temporary muster roll basis as a Safaikaramchari.
It is further seen from the record that an application has also been moved on behalf of the workman, on record, for production of certain documents/record from the management as mentioned therein viz. attendance record of the management in respect of the workman for the period with effect from 19.08.1989 to 25.10.2000 with the details of working of the workman with the management and the departments of the management in respect of the same in her respect mentioned in the same as follows: Sl. No. Period Location Official concerned (1) 19.08.89 Mandi House Insp.Mukandi to 1990 NDMC (2) 1991 to Kasturba Insp.Hari Singh 1992 Gandhi Marg NDMC (3) 1992 to Ring Road Insp.Kaushik 1993 I.D No. 427/09 Page 19 out of 35 (4) 1993 to 1 Mohan Singh Insp.Ved 2000 Place, New Delhi
2.Sarojini Nagar Insp.Roshan
3.Raj Nagar on the allegation that the same were necessarily required to be produced on the part of the management for the just and proper adjudication and disposal of the matter in issue to which no formal reply has been filed on behalf of the management in opposition to the same, on record, and merely photocopies of certain documents as mentioned in its management evidence, as abovesaid, viz. Ex.MW1/1 Colly (page nos. 1 to 5) and Mark A and B, as abovesaid, had been filed, on record, which are the attested copies of the attendance register/muster roll register of the management in respect of the workmen including the workman for the period with effect from December, 1990 to April, 1991, Ex.MW1/1 Colly (page nos.1 to 5), the alleged detail of working/duty of the workman with the management for the months of January, 1993, September, 1994, February, 1992, Mark A and alleged detail of working of the workman with the management for the period with effect from 23.08.1999 to 31.01.2000, Mark B which viz. Mark A and B, I find from the record are not proved in the management evidence, on record, by virtue of being not the attendance record of the management in respect of the workman for the subject period as mentioned in the same and being merely alleged copies of handwritten details of working of the workman with the management for the same with not even the originals of the same produced, on record, or the record from which the said information I.D No. 427/09 Page 20 out of 35 has allegedly been derived viz. attendance records of the management in respect of workmen employed on Temporary Muster Roll basis with it for the alleged/subject period produced on the part of the management in the management evidence, on record, or even the author/attestator of the same viz. Mark A and B produced on the part of the management in the management evidence, on record, in respect of their authenticity and for their admissibility and proving in the management evidence, on record, thereby/thus no attendance record of the workman having been filed on the part of the management for the period subsequent to April, 1990 till 25.10.2000 as specifically asked by the workman vide her subject application, as abovesaid, in this regard against the management, on record, in support of its allegation of the workman being employed on Temporary Muster Roll basis as a beldar and also for a specific job, that, in fact, as and when such work was over, her engagement on Temporary Muster Roll basis also came to an end and of her having worked with the management only for specific periods viz. with effect from 07.12.1990 to 06.03.1991, 21.08.1992 to 31.10.1992, 01.02.1992 to 05.02.1992, 01.01.1993 to 31.01.1993, 01.01.1994 to 29.09.1994 and 23.08.1999 to 31.01.2000 as alleged and of her having not worked with the management for a period of 240 days preceding the date of the alleged termination of the services of the workman on the part of the management as alleged by the workman, as alleged and in controversion/rebuttal of the case of the workman of having been employed on the post of a Safaikaramchari with the management on I.D No. 427/09 Page 21 out of 35 19.08.1989 and working on the said post with the management with effect from the same till 25.10.2000 when her services are alleged to have been terminated illegally on the part of the management in violation of the relevant provisions of the Industrial Disputes Act, 1947 (as amended upto date) in her respect on the part of the management on the said date despite opportunities given to the management in this regard and without any explanation on its part in this regard so much so that it is seen from the record that the management has chosen not to even file any reply in opposition to the subject application moved on behalf of the workman, as abovesaid, on record.
It has been held vide citation Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. 2006 LLR 851 Delhi High Court: "10. 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. V. Pratamsingh Narsinh Parmar, III (2004) SLT 180: 2004 LLR 351 (Para 49), Nilgiri Coop.
Marketing Society Ltd. v. State of Tamil Nadu; 2001 LLR 148, Dhyan Singh V. Raman Lal;
I.D No. 427/09 Page 22 out of 35 1996 Lab. I.C. 202, Swapan v. First Labour Court, West Bengal; and 1973 Lab. I.C. 398 N.C., John v. 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 claiming the same."
It has further been held vide the above mentioned citation that :
"14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved I.D No. 427/09 Page 23 out of 35 by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman".
Vide citation Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda, AIR 2010 Supreme Court 1236 it has been held: "13. The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the Labour Court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions I.D No. 427/09 Page 24 out of 35 precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.
14. Section 25B of the Act defines "continuous service". In terms of subsection (2) of Section 25B that if a workman during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days.
The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty Vs. Assistant Executive Engineer [(2006) 1 SCC 106]: (2005 AIR SCW 6103), has observed:
I.D No. 427/09 Page 25 out of 35 "However, applying general principles and on reading the aforesaid judgments, we find that this court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of dailywaged earners, there will be no letter of appointment or termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15. Applying the principles laid down in the above case by this court, the evidence produced I.D No. 427/09 Page 26 out of 35 by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 198687 was not I.D No. 427/09 Page 27 out of 35 completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, in spite of the direction issued by the Labour Court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during crossexamination. In this regard, it would be pertinent to mention the observation of three Judge Bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195]; (2004 AIR SCW 5184), where it is observed:
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
16. It is not in dispute that the respondent's service was terminated without complying with I.D No. 427/09 Page 28 out of 35 the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The section reads "25G. Procedure for retrenchment. Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
The Labour Court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were nor produced by the appellants.
I.D No. 427/09 Page 29 out of 35 The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus the procedure laid down in Section 25G has also not been followed. The findings on facts by the Labour Court cannot be termed as perverse and need no interference.
17.It is also the case of the appellants that there is unexplained delay in approaching the Labour Court in adjudicating the imaginary grievance by the respondentworkman. In our view, there is no merit in this contention. The workman had approached the Conciliation Officer for resolving the dispute between the employer and the employee and it is only when the conciliation proceedings failed that the matter was referred to the Labour Court for final adjudication."
In view of my above observations as also the case law, as above, an adverse inference is drawn against the management and in favour of the workman that in case the subject documents/records viz. attendance record of the workman with the management with effect from 19.08.1989 to 25.10.2000 with the details of working/attendance of the workman with the management and the departments of the management I.D No. 427/09 Page 30 out of 35 in respect of the same qua the workman as specifically asked for by the workman against the management and as mentioned in her subject application moved for production of the same against the management, as abovesaid, on record, had been produced on the part of the management the same would have gone against the contentions of the management of the workman having been employed on temporary muster roll basis as a beldar and that also for a specific job and that in fact as and when such work was over, her engagement on Temporary Muster Roll basis also came to an end and of her having worked with the management only for specific periods with effect from 07.12.1990 to 06.03.1991, 21.08.1992 to 31.10.1992, 01.02.1992 to 05.02.1992, 01.01.1993 to 31.01.1993, 01.01.1994 to 29.09.1994 and 23.08.1999 to 31.01.2000 and had not worked for a period of 240 days with the management in the year preceding the date of her alleged termination of services on its part as alleged by her viz. 25.10.2000 in the instant case, as alleged by the management vide its amended written statement and affidavit by way of evidence of its MW1 Sh.Naresh Kumar, Sanitary Inspector of the management along with Ex. MW1/1 Colly (page nos. 1 to 5) and Mark A and B, as abovesaid, in management evidence, on record. I accordingly, find that the workman has been able to discharge the onus which was upon her to prove the instant issue viz. of her having worked for a period of 240 days with the management in the year preceding the date of her alleged termination of service on its part as alleged in the instant case viz. 25.10.2000 as required under the provisions of Section 25 B of the I.D No. 427/09 Page 31 out of 35 Industrial Disputes Act, 1947 (as amended upto date) for being entitled to the protection of the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amended upto date) as on the said date. The instant issues are accordingly decided in favour of the workman and against the management.
ISSUE NO.2 Admittedly, the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amended upto date) which envisage as follows: "25F.Conditions precedent to retrenchment of workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and I.D No. 427/09 Page 32 out of 35
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]."
have not been complied with on the part of the management qua the workman on the date of her alleged termination of services on its part viz. 25.10.2000 as alleged by her in the instant case by virtue of it being the case of the management of the workman being employed on temporary muster roll as a beldar and that also for specific job and in fact as and when such work was over, her job on temporary muster roll basis also came to an end and of having not worked with the management for a period of 240 days preceding the alleged date of termination of her services on the part of the management as alleged by the workman in the instant case.
It is further seen from the record that the workman has alleged both in her statement of claim as also vide her affidavit by way of evidence Ex.WW1/A in workman evidence that many workers who were junior to her were still working with the management; that the names of the workmen were (i) Smt.Rani W/o Sh. Hukum Chand (ii) Smt. Munni W/o Sh. Lacchi Ram and Sh. Ramdeen etc. who were doing the job being done by the workman with it and who had joined the management after her appointment viz. violation of the provisions of Section 25 G of the I.D No. 427/09 Page 33 out of 35 Industrial Disputes Act, 1947 (as amended upto date) on the part of the management qua her on the date of her alleged termination of service on its part as alleged by her in the instant case, as abovesaid, to which I find from the record there is no rebuttal on the part of the management either in its written statement filed in opposition to the statement of claim of the workman or by way of affidavit by way of evidence of its MW1 Sh. Naresh Kumar, Sanitary Inspector of the management in management evidence, as abovesaid, so much so that even the seniority list of the workmen including the workman employed with the management in the category of the workman have not been produced on the part of the management, on record, in controversion/rebuttal of the aforesaid contention/allegation of the workman against it. Consequently, I find that there is noncompliance of the provisions of Section 25G of the Industrial Disputes Act, 1947 (as amended upto date) on the part of the management in respect of the workman as on the date of her alleged termination of services on its part as alleged by her in the instant case, as abovesaid.
In view of my above observations and findings, I find that the termination of the services of the workman with the management on 25.10.2000 as alleged by the workman in the instant case is illegal. ADDITIONAL ISSUE NO.4.
It is seen from the record that the workman has alleged by way of her affidavit by way of evidence Ex.WW1/A in workman evidence that she has been unemployed from the date of her illegal I.D No. 427/09 Page 34 out of 35 termination of service on the part of the management viz. 25.10.2000 as alleged by her in the instant case to which there is no rebuttal on the part of the management so much so that it has not even been alleged on the part of the management by way of affidavit by way of evidence of its MW1 Sh. Naresh Kumar, Sanitary Inspector of the management Ex.MW1/A in management evidence that the workman had been gainfully employed during the said period nor any evidence led on the part of the management in this regard in its management evidence, on record.
In view of my above observations and findings, it is felt appropriate that the relief of reinstatement in service, however, along with 50% of backwages and continuity of service be awarded to the workman against the management since it cannot be held that the workman has remained totally unemployed during the period with effect from the date of termination of her services on the part of the management as alleged till the date of passing of award.
The reference is answered accordingly and the award is passed. Ahlmad is directed to send six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in the open Court (CHANDRA GUPTA)
on 30.09.2014 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
I.D No. 427/09 Page 35 out of 35