Delhi District Court
Sh. Vivek Bhardwaj vs . M/S. Creative Eye Limited Did No. ... on 9 April, 2012
Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0145122010
Type of Case Direct Industrial Dispute
Date of Institution 24.05.2010
Evidence concluded on 27.02.2012
Final Arguments heard on 30.03.2012
Date of Award 09.04.2012
WORKMAN Vs. MANAGEMENT
Sh. Vivek Bhardwaj S/o Sh. B.R. The Chief Executive Officer, M/s.
Sharma, R/o Flat No. 291, Sector - Creative Eye Limited, GH - 5 & 7,
A6, Pocket - I, Narela, Delhi - 110 Flat No. 277, Paschim Vihar, Delhi
040. - 87.
PRESENT:
None for the parties.
AWARD :-
1. The workman namely Vivek Bhardwaj filed this direct industrial dispute before this
court U/S 10 (4A) of the Industrial Disputes Act against the Chief Executive
Officer, M/s. Creative Eye Limited.
2. As per his claim, the workman Vivek Bhardwaj was working with the Management
M/s. Creative Eye Limited as a "Computer Operator" from October, 1997. He
claimed to have been working there till December, 2008 when he was
asked by the Management to proceed on leave for three months. He
rejoined his duties on 01.04.2009 and worked there with the
Management at its Mumbai office till 30.07.2009. Thereafter, the
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Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10
Management had been assuring him that his services would not be terminated and
that he would be allowed to resume his duties. Thereafter he was kept waiting for
resumption to his duties since 31.07.2009 but the Management did not allow him to
do the same.
3. A reply / written statement was filed purportedly on behalf of the Management. A
preliminary objection was taken that this court had no territorial jurisdiction as the
matter pertains to the area of Mumbai. It was admitted that this claimant / workman
was working with the Management since 05.10.1997 and continued to be so till
December, 2008. After December, 2008 the claimant / workman suddenly stopped
reporting to his duties. Thereafter, the Management closed its Delhi office and the
Management asked him to join his duties at Mumbai office, but he did not do the
same. The Management stated to be waiting for this claimant / workman since then.
The Management has specifically written that it was ready to allow him to join his
duties.
4. In this background of the pleadings of the parties, this court vide its orders dated
15.02.2011 framed the following issues :
1. Whether the workman has abandoned his duties, if yes, from what
date and period? OPM.
2. Whether the services of the workman were terminated illegally and /
or unjustifiably by the Management? OPW.
3. Relief, if any.
5. These issues were subsequently amended on 15.09.2011 as follows :
1. Whether this court has the territorial jurisdiction to entertain and try
this claim? OPM.
2. Whether the workman has abandoned his duties, if
yes, from what date and period? OPM.
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Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10
3. Whether the services of the workman were terminated illegally and /
or unjustifiably by the Management? OPW.
4. Relief, if any.
6. After framing of the issues, the workman Vivek Bhardwaj examined himself as
WW1 and almost reiterated his claim. He relied upon five documents two of which
i.e. Ex. WW1/1 and Ex. WW1/2 were related to a journey by train from Mumbai to
Delhi. Ex.WW1/3 collectively were several receipts of contribution of
Employees Provident Fund Scheme. Ex. WW1/4 is the photocopy of a statement of
account of the claimant / workman and Ex. WW1/5 is a demand notice sent by this
claimant / workman to the Management.During the cross - examination he stated
that the Management wanted him to sign resignation letter which he was not
interested in.
7. One Sh. Anil Kumar Marwaha was examined as MW1 purportedly on behalf of the
Management.
8. In this case, the respondent / Management is a limited company. The claimant
impleaded the respondent / Management as M/s. Creative Eye Limited i.e. a limited company. This court has seen the material available on record. There is not even a single piece of paper showing that the written statement or the so called Management's affidavit was really filed by the respondent /Management Company. It appears to have been filed by some"Management" with illegible signs. Similarly MW1 Sh. Anil Kumar Marwaha has nowhere filed any authorization from the Board of Directors / Managing Director / Directors of this company. He has not filed any Resolution of any Board of Directors of the said respondent / Management company. There is no Articles of Association showing the constitution of the Board of Directors. Everything has been kept in dark.
9. The Management has not given a chance to this court to look into the fact as to who is defending this claim of the workmen. Everything cannot run by presumption. It cannot be presumed here that whoever appeared in the name of the respondent / Management was really the AWARD Page 3 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 respondent / Management.
10. A company is a legal persona and has a definite identity. There is a specific legal procedure to be followed by a company in instituting / defending legal claims. But the same has not been duly followed here in this case. There is no linkage between the legal persona impleaded in these proceedings and the people contending that they were appearing for this legal persona. Link or relation of this nature cannot be thrust forcibly by the appearing persons.
11. This court has no objective mechanism to ascertain the identity of the person or persons who apparently defended or tried to defend this claim.
12. It is not sufficient for a party just to file an authorization in Form 'F' Industrial Disputes Act. That party has to give its identification and authentication also. The party which authorizes its attorney / AR to appear before this court has to give its own particulars also. For each party e.g. a natural person, a legal person, a society, a trust, a limited company or a private limited company, this requirement of identification may vary. But in all cases, it is a sine qua non so that the court is in a position to identify the parties and ascertain that the proceedings before it are not collusive in nature. In the present case, the respondent / Management has totally failed in giving any identification of its authenticity or genuineness.
13. This view of this court is also substantiated by Part 16 Instructions to Civil Courts in Delhi Delhi High Court Rules. The observations of this court are in tandem with Rules contained therein.
14. The same is the intention of the legislature enshrined in Section 119 CPC where all unauthorized persons are restrained from addressing the courts during adjudication.
15. Conversely, this evidence in the name of the Management's evidence does not bind the Management itself. In case any adverse order is passed against the Management, then no law would make that adverse order binding on the Management because legally the Management had not participated nor did anyone appeared in this case on behalf of the Management. AWARD Page 4 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 Consequently, if the evidence led by the Management is taken on record, it would simply pave the way for this Management to accept or reject the court's verdict, and that too as per its own choosings. This evidence does not bind the respondent / Management.
16. In these circumstances, this court has no hesitation in rejecting this piece of evidence led by the so called Management as being inadmissible in law. It is totally insufficient to link it to the respondent / Management which is in fact a company i.e. a person incorporate.
17. The evidence of the Management has been rejected for the reasons as aforesaid.
Now the evidence available in this case is only the one that was led by the claimant. This court has to see if the case is proved only on the basis of this evidence. This court would also consider that aspect of evidence which was obtained during the cross - examination of the claimant because it was the claimant's admission on oath.
ISSUE NO. 1 :
18. In this issue this court has to adjudicate upon the factum if this court has the territorial jurisdiction to entertain and try this claim.
19. The Management has not tendered any 'admissible' evidence related to its existence and identity. Whatever evidence it has led has been rejected by this court being inadmissible in law. Therefore, this issue is held to be "Not Proved" by the Management.
ISSUE NO. 2 :
20. In this issue this court has to adjudicate upon the factum if the workman has abandoned his duties, if yes, from what date and period. It was for the Management to show that this claimant had abandoned his services.
21. In this case this court has already rejected the evidence led by the AWARD Page 5 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 Management being inadmissible in law. Therefore, this issue is held to be "Not Proved" by the Management.
ISSUE NO. 3 :
22. In this issue this court has to adjudicate upon the factum if the services of the workman were terminated illegally and / or unjustifiably by the Management.
23. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
24. 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 :
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."
25. The law related to the onus during the course of evidence in a Labour Adjudication was laid down 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 AWARD Page 6 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 Court & Anr. 2006 LLR 851.
26. 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 claiming the same.'
27. 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 AWARD Page 7 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 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 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 AWARD Page 8 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 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 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.
28. In the present case the workman has specifically stressed that he has been working with the Management since October, 1997 and he continued to be so till 30.07.2009. He claims a service to be of nearly 12 years but he has nowherer stated his last drawn salary. He has placed on record a photocopy Ex. WW1/4 which was duly countersigned by a bank. Therefore, this document Ex. WW1/4 is taken in evidence. It shows his last drawn salary as Rs.6919/ p.m. The document Ex. WW1/4 is the document filed and relied upon by the workman. As per this document he was receiving his salary from the Management at a monthly interval and the amount of the salary was Rs.6919/ p.m. He used to get this salary till 09.01.2009 and thereafter no such salary was deposited in that account.
29. The reply by the Management was not taken into consideration because of the lack of the Management's credentials but despite that this reply stated that this workman worked with the Management only till December, 2008. It appears that the salary paid in January, 2009 was for the period of December, 2008, the date which was relied upon by the reply to his claim. Therefore, this court holds that the view that this claimant / workman worked with the Management from October, 1997 to December, 2008 is in the vicinity of the reality. This court finds this information as the only information AWARD Page 9 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 to be chosen and relied upon for the purpose of this adjudication.
30. The circumstances in which the services of this workman came to an end are not very clear and transparent. The Management alleged an abandonment on the part of the workman but the same could not be proved because the evidence of the Management was found inadmissible.
31. This court is of the view that once the factum of relationship in the nature of 'employer and employee' is admitted by the Management, the burden is shifted to it and it has to prove on record the other details related to that relationship. This is very much mandatory in view of Section 106 the Indian Evidence Act also.
32. In the present case, there is no evidence to be read in support of the Management's case. The Management has nowhere pleaded or proved that the service of this claimant was terminated consequent to some settlement. Therefore, this court is of the opinion that the termination of services was effected in a coercive manner and it amounted to "retrenchment" as defined in Section 2 (oo) of the Industrial Disputes Act.
33. The services of a workman can be terminated under Section 2 (oo) of the Industrial Disputes Act only in accordance with Section 25 F of the Industrial Disputes Act and by granting him a compensation to be calculated under the guidelines of that statute.
34. It is neither a pleading nor a proof by the Management that it was ever done by it.
Therefore, this court is of the view that at the time of retrenchment from the services of the workman the compensation as desired by the language of Section 25 F of the Industrial Disputes Act was not paid to this workman. This court is further of the view that it should be paid now.
RELIEF :
35. This court is of the view that compensation amount should be determined after having regard to the date of appointment, the date of AWARD Page 10 of 11 Sh. Vivek Bhardwaj Vs. M/s. Creative Eye Limited DID No. 153/10 termination, the total length of employment of the workman, his last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. inflation and the devaluation of money) and the circumstances in which he was retrenched.
36. It is hereby directed that a compensation in accordance with Section 25 F of the Industrial Disputes Act be calculated taking this claimant's service extending from 05.10.1997 to 31.12.2008. For this purpose his last drawn salary be taken as Rs.6919/ p.m.
37. This court is further of the view that the money payable to this workman in the year 2008, the date of the alleged retrenchment due to the inflation and devaluation of money would have grown almost one and a half time of its original amount.
38. Hence this court directs that this workman be given a sum one and a half time of the amount of compensation as calculated in accordance with Section 25 F of the Industrial Disputes Act. (As calculated in para no. 36.)
39. A copy of this award be sent to the office of the Labour Commissioner for necessary action.
40. 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.
41. File be consigned to the record room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 09.04.2012.
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