Delhi District Court
Between vs State on 31 July, 2008
1 DID NO. 450/2006
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI
DID NO. 450/2006
BETWEEN
The Claimant
Sh. Saleem Hasmi S/o Sh. Sarif Hasmi,
Through Rastriya Rajdhani Kshetra Engineering
and General Majdoor Union Registered,
C-139, Karampura,
New Delhi - 110015.
AND
The management of
M/s. Ecko Line,
B-70/23, lawrence Road,
Delhi-100035
DATE OF INSTITUTION OF THE CASE : 19.10.2005
DATE OF RESERVING THE AWARD : 31.07.2008
DATE OF ANNOUNCEMENT OF AWARD : 31.07.2008
AWARD
1. The workman has filed statement of claim U/s. 10 (4A) of the
Industrial Disputes Act on 19.10.2005 stating therein that he has been
employed with the management since March 1998 as Tailor @ Rs.
7,000/- per month average on piece rate basis. The workman was
working sincerely and diligently to the satisfaction of the management
and never gave any chance of complaint to the management. The
management was not providing the legal facilities i.e appointment
letter, attendance card, leave book, earned leave, C.L. ESI card, PF
Contd.....
2 DID NO. 450/2006
etc. and the workman was orally demanding the same from the
management. The workman alongwith other workers made complaint
to the labour authorities through his union on which Labour Inspector
visited the management on 16.05.2005 and 26.05.2005 and instructed
the management to provide the statutory facilities, on which
management got annoyed with the workman and the management
forcibly obtained the signatures of workman on blank papers, vouchers
and ESI forms and complaint in this respect was made to police
station Keshavpuram on 20.05.2005. On 10.06.2005, the
management terminated the services of the workman without issuing
any notice on charge-sheet and without payment of compensation. On
17.06.2005, the workman sent a notice of demand to the management
but the management did not send any reply to the same. The workman
through his union presented a claim before the conciliation officer but
the management did not participate in the conciliation proceedings.
The workman is unemployed since the date of his termination. It is
prayed that an award be passed thereby reinstating the workman in
service with full back wages and continuity of service.
2. The notice of statement of claim was issued to the management
and the management has filed WS and has contested the same. In the
WS, the management has stated that the workman has not come to
the court with clean hands. It is denied that the workman has worked
with the management from March 1998 @ Rs. 7,000/- as salary as
Contd.....
3 DID NO. 450/2006
alleged. It is stated that the workman was working w.e.f. 05.05.2005
and he started absenting from duties w.e.f. 25.05.2005 without any
intimation or sanction of leave. The workman was directed vifde letters
dt. 10.06.2005 and 13.08.2005 to resume duty through Labour
Department but he never turned up. It is denied that the management
was not providing statutory facilities to the workman as alleged. It is
stated that Labour Inspector had visited on 09.06.2005 and necessary
reply was sent on 10.06.2005 and again on 13.06.2005 to the Labour
Department with the request that the workman may be advised to
report for duty, in case he is interested he may join the duty. It is
denied that the services of workman have been terminated illegally. It
is stated that workman is not entitled to any relief.
3. The workman has filed rejoinder to the written statement/reply of
management. In the rejoinder workmen have reiterated the contents of
statement of claim and have controverted the allegations of
management as stated in the WS/reply.
4. From the pleadings of parties following issues were framed on
01.09.2006:-
1. Whether the workman has worked continuously for 240
days in a year with the management, if so its effect? OPW
2. Whether the workman abandoned the job of the
management w.e.f. 25.05.2005 as stated in para 2 of PO of
W.S., if so its effect? OPM
3. Whether the workman is entitled to the reliefs claimed, if
so to what reliefs? OPW
4. Relief.
Contd.....
4 DID NO. 450/2006
5. To prove his case workman examined himself as WW1.
6. Management has examined Sh. Gautam Prasad, Manager as
MW1.
7. I have heard AR for parties and carefully perused record. My
findings on the specific issues are as under:
ISSUES NO. 1 AND 2
8. Since both these issues involve common discussion of facts
and law hence for the sake of brevity both these issues are being taken
together. In the statement of claim the workman has stated that he has
been employed with management since March 1998 as Tailor and the
management was not providing the statutory facilities to the workman
and the workman was demanding the same from the management and
the workman alongwith other workers made complaint to Labour
Authorities through Union on which Labour Inspector visited the
management on 16.05.2005 and 26.05.2005 on account of which
management got annoyed and terminated the services of workman on
10.06.2005. In the W.S. the management has taken the plea that the
workman joined the management w.e.f. 05.05.2005 and he started
absenting from the duties w.e.f. 25.05.2005 without any intimation and
prior sanction of leave and the workman was directed vide letters dt.
10.06.2005 and 13.06.2005 to resume duties through Labour
Department but the workman has not turned up.
Contd.....
5 DID NO. 450/2006
9. The plea of AR for management is that it is for the workman to
prove that there existed relationship of employer and employee
between the parties and that the workman has worked continuously for
240 days in a year with the management.
10. In Workmen of Nilgiri Coop. Marketing Society Ltd. vs. State
of Tamil Nadu and Ors., 2004 LLR 351 Hon'ble Supreme Court held
that:
36. In a given case it may not be possible
to infer that a relationship of employer and
employee has come into being only because
some persons had been more or less
continuously working in a particular premises
inasmuch as even in relation thereto the
actual nature of work done by them coupled
with other circumstance would have a role to
play.
38. The control test and the organization
test, therefore, are not the only factors which
can be said to decisive. With a view of elicit
the answer, the court is required to consider
several factors which would have a bearing on
the result: (a) who is appointing authority; (b)
who is the pay master; (c) who can dismiss;
Contd.....
6 DID NO. 450/2006
(d) how long alternative service lasts; (e) the
extent of control and supervision; (f) the
nature of the job, e.g. whether, it is
professional or skilled work; (g) nature of
establishment; (h) the right to reject.
11. In Range Forest Officer v. S.T. Hadimani, 2002 (93) FLR 179
(SC), the Hon'ble Supreme Court held that it was then for the claimant
to lead-evidence to show that he had in fact worked for 240 days in the
year preceding his termination. Filing of an affidavit is only his own
statement in his favour and that cannot be regarded as sufficient
evidence for any Court or Tribunal to come to the conclusion that a
workman had, in fact, worked for 240 days in a year. No proof of
receipt of salary or wages for 240 days or order or record of
appointment or engagement for this period was produced by the
workman. On this ground alone, the award is liable to be set aside.
12. In Rajasthan State Ganganagar S. Miils Ltd. v. State of
Rajasthan and another, 2004 (4) LLN 845; Municipal Corporation,
Faridabad v. Siri Niwas, 2004 LLR 1022 (SC): 2004 (4) LLN 785 and
Madhya Pradesh Electricity Board v. Hariram, 2004 (4) LLN 839:
2005 LLR 1 (SC), the Hon'ble Supreme Court reiterated the principle
that burden of proof lies on the workman to show that he had worked
continuously for 240 days in the preceding one year prior to his alleged
retrenchment and it is for the workman to adduce an evidence apart
from examining himself to prove the factum of his being in employment
of the employer.
Contd.....
7 DID NO. 450/2006
13. In Surendranagar District Panchayat and Anr. v. Jethabhai
Pitamberbhai, 2006 LLR 250 the Hon'ble Supreme Court held that
when the workman apart from examining himself in support of his
contention has not produced any proof in the form of receipt of salary
or wages for 240 days or record of his appointment or engagement for
that year to show that he has worked with the employer for 240 days to
get the benefit under section 25F of the Industrial Disputes Act, in the
absence of evidence on record the Labour Court and the High Court
have committed an error in law and fact in directing reinstatement of
the respondent-workman.
14. Hence, as per aforesaid decisions it is for the workman to prove that he has been employed with the management for the period as alleged and that his services were illegally terminated by the management.
15. In order to prove his case the workman examined himself as WW1 and he adduced evidence by way of affidavit Ex. WW1/A. The workman/WW1 denied suggestion of management in the cross - examination that he joined management on 05.05.2005 and he has not worked continuously for 240 days in a year with the management. The workman has relied on the report dt. 05.07.2005 of Labour Inspector Ex. WW1/1 wherein Labour Inspector has stated that he had visited the management on 16.05.2005 and 26.05.2005 and he found 26 Contd.....
8 DID NO. 450/2006employees as named in the said report, working with the management. The workman has also relied on complaint to police dt. 20.06.2005 made by Union Ex. WW1/2, copy of notice of demand dt. 17.06.2005 Ex. WW1/3 and copy of claim filed before the Conciliation Officer Ex. WW1/5. In order to prove his employment with the management the workman has relied on receipts/challans Ex. WW1/7 to Ex. WW1/39. The plea of the AR for management is that the documents filed by the workman do not prove that he has worked continuously for 240 days in a year with the management and the receipts/challans Ex. WW1/7 to Ex. WW1/39 do not belong to the management. The workman/WW1 admitted in the cross - examination that Ex. WW1/7 to Ex. WW1/39 do not bear any stamp of the management. Thereafter, workman/WW1 further voluntarily stated in the cross - examination that Ex. WW1/7 to Ex. WW1/39 were issued to him as he was working on piece rate basis. The management examined Sh. Gautam Prasad as MW1 who adduced evidence by way of affidavit Ex. MW1/A. The plea of the workman is that he has been in the employment of the management since March 1998, but the management has pleaded that the workman joined the management w.e.f. 05.05.2005. MW1 has relied on the attendance register from January 2005 to March 2005 Ex. MW1/1 collectively and payment of wages register from January 2005 to March 2005 Ex. MW1/2 collectively. MW1 stated in the cross - examination that he joined management in December 2006. MW1 further stated in Contd.....
9 DID NO. 450/2006the cross - examination that the records produced by him Ex. MW1/1 and Ex. MW1/2 bear the name of the workman. Thereafter MW1 further stated in the cross - examination that he can only say on the basis of records produced by him that since when the workman was working with the management and he has no idea about the records prior to January 2005. However, MW1 denied suggestion of workman in the cross - examination to the effect that the workman has been employed with the management since March 1998. Thereafter MW1 stated in the cross - examination that the management might have been maintaining records prior to January 2005 and he further voluntarily stated in the cross - examination but the same are not available. The management did not prefer to produce its records prior to January 2005 in order to rebut the contention of the workman that he has been in the employment of management since March 1998. The workman has proved a prima facie case that he was in the employment of management and in the circumstances onus shifted on the management to rebut the claim of the workman by producing its records that the workman was not in the employment of management since March 1998.
16. In the case of Bank of Baroda vs. Ghemarabhai Harjibhai Rabari, 2005 LLR 443 the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, Contd.....
10 DID NO. 450/2006the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case it would be the responsibility of the Management to rebut the same.
17. Although, it is for the workmen to prove that there existed relationship of employer and employee between the parties and that he has worked continuously for 240 days in preceding one year prior to termination of his services but if the management does not issue any documents to the workman relating to his employment in that case it was held in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. 2006 LLR 851 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 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.
Contd.....
11 DID NO. 450/2006
18. In Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi, 2006 LLR 1080, Hon'ble Supreme Court held
10. In R.M. Yellatti v. The Asst. Executive Engineer, JT 2005 (9) SC 340: 2006 LLR 85 (SC), the decisions referred to above were noted and it was held as follows:
"Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated 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 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 daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (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 facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be-the ground for the tribunal to draw an adverse inference against the management."
Contd.....
12 DID NO. 450/2006
19. As per decisions in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. (Supra) and Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi (Supra) it is for the workman to call upon the management to produce the relevant record in order to prove that he has been employed with the management for the period as alleged.
20. In para 3 of the affidavit Ex. WW1/A the workman has stated that the management had not issued him the letter of appointment, attendance card, leave book and the management was also not providing facilities of ESI and PF etc. It is to be noted that the management has admitted the employment of workman under the management. However, the management has pleaded that the workman was in the employment of management since 05.05.2005 and not from March 1998. The management has not given any suggestion to workman/WW1 in the cross - examination that the management had issued him letter of appointment wherein his date of appointment is mentioned as 05.05.2005. The management in its evidence has also not produced any copy of appointment letter which was issued by the management to the workman. The management has failed to prove that any letter of appointment was ever issued to workman by the management. The management did not produce its records prior to January 2005 in order to prove that the workman was not in the employment of management prior to the same hence on that Contd.....
13 DID NO. 450/2006account the name of the workman has not been mentioned in the said records. As the management has not issued letter of appointment to the workman and the management has also not proved that they were providing facilities of ESI and PF to the workman in the circumstances, in the absence of any records the only course for proving the length of employment of workman is production of its records by the management. The management has not produced any records on the pretext that the same are not available (as stated by MW1 in the cross
- examination). In the circumstances, the management has failed to rebut the contention of workman that he has been in the employment of management since March 1998 and that the management has failed to prove that the workman has not worked continuously for 240 days in a year with the management.
21. The plea of the workman is that he was demanding statutory facilities from the management and he alongwith other workers had also made complaint to Labour Authorities on which Labour Inspector had visited the management on 16.05.2005 and 26.05.2005 and the management had terminated the services of workman on 10.06.2005. The management has taken the plea that the workman himself started absenting from the duties w.e.f. 25.05.2005 without intimation or prior sanction of leave. In para 1 of reply on merits in the W.S. the management has stated that the workman was directed vide office letters dt. 10.06.2005 and 13.08.2005 to resume the duties through Contd.....
14 DID NO. 450/2006Labour Department but he has not turned up. MW1 stated in the cross
- examination that he does not have any clear idea as to whether Labour Inspector visited the management on 16.05.2005 and 26.05.2005 and on those days the management could not produce any records. MW1 further stated in the cross - examination that he cannot say if the persons named at point A to A in report of Labour Inspector Ex. WW1/1 were working with the management or not and thereafter MW1 further voluntary stated in the cross - examination that as on 16.05.2005 and 26.05.2005 he was not in the employment of management. In his report dt. 05.07.2005 Ex. WW1/1 the Labour Inspector has named workers at point A to A who were found working with the management and MW1 has not specifically denied that the said persons were in the employment of management on 16.05.2005 and 26.05.2005. In the cross - examination of WW1 also no suggestions have been given to the effect that the report of Labour Inspector Ex. WW1/1 is a fabricated document or that the Labour Inspector had not visited the management on 16.05.2005 and 26.05.2005. Rather in para 4 of reply on merits in the W.S. the management has stated that the Labour Inspector visited the management on 09.06.2005 and necessary reply was sent on 10.06.2005 and again on 13.08.2005. On one hand the management has taken the plea that the workman started absenting himself from the duties from 25.05.2005 but in the cross - examination MW1 stated that he cannot say if the workman has worked with the management till Contd.....
15 DID NO. 450/200609.06.2005. MW1 has not specifically denied in his cross - examination that the workman has not worked with the management till 09.06.2005. The management has relied on attendance register Ex. MW1/1 collectively and the plea of the management is that the name of the workman is mentioned in the said register in the month of May 2005. Perusal of attendance register Ex. MW1/1 collectively shows that it has not been maintained in the manner wherein the workmen were signing the said register to mark their presence. The attendance register Ex. MW1/1 collectively does not bear any stamp of the management and it is not signed by any official of the management. Section 25D of the I.D. Act, 1947 provides that it shall be duty of every employer to maintain muster roll and to provide for making of entires therein by the workmen who may present themselves for work at the establishment at the appointed time during the normal working hours. Perusal of attendance register Ex. MW1/1 collectively shows that it has not been maintained as provided by Section 25D of the I.D. Act, 1947.
22. In para 3 of the affidavit Ex. MW1/A the management has stated that they sent letters dt. 10.06.2005 and 13.08.2005 to the workman and directed him to resume the duty. MW1 stated in the cross - examination that the management has not filed any letter on record which was sent to workman thereby directed him to join the duty. The management has not proved any such letters dt. 10.06.2005 and 13.08.2005 which were allegedly sent by the management to workman.
Contd.....
16 DID NO. 450/2006The management has failed to prove that the letters dt. 10.06.2005 and 13.08.2005 were sent to the workman thereby directing him to resume the duty. The management has failed to prove that the workman voluntarily absented from the duties of the management w.e.f. 25.05.2005. The management has not proved that the workman had unauthorizedly absented from the duties and the management had sent him any letter thereby directing him to join the duties or that the management had issued him charge-sheet for unauthorizedly remaining absent from the duties. Both these issues are accordingly decided in favour of the workman and against the management. ISSUES NO. 3 & 4
23. Since both these issues involve common discussion of facts and law hence for the sake of brevity both these issues are being taken together. In findings on issues no. 1 and 2 above it has been held that workman has worked continuously for 240 days in a year with the management and the management has failed to prove that the workman abandoned the job of the management w.e.f. 25.05.2005. In the circumstances, the management has failed to rebut the plea of the workman that his services were terminated illegally by the management on 10.06.2005.
24. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory Contd.....
17 DID NO. 450/2006rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
25. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
26. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005-LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be Contd.....
18 DID NO. 450/2006recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
27. Section 2(oo) of the Industrial Disputes Act 1947 reads as under:
"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 reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the 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.
28. Section 25F of the Industrial Disputes Act 1947 provides that:
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 -
Contd.....19 DID NO. 450/2006
(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
(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.
29. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workman have been terminated illegally by the management.
30. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workman.
31. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-LLR-275 it was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he Contd.....
20 DID NO. 450/2006was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
32. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
33. In Pramod Kumar and another v. Presiding Officer and another-2006-I-LLJ 158 in Para 10 and 11 our own Hon'ble High Court observed that:
10.In the case of Haryana Tourism Corpn. Ltd. vs. Fakir Chand and Ors., AIR 2003 SC 4465: 2003 (8) SCC 248: 2004-I-LLJ-265, Supreme Court directed payment of compensation of Rs.
70,000/-, instead of reinstatement with 25% back wages taking into consideration factors like (a) workers were daily wagers, (b) workers were not recruited through employment exchange or regular mode of selection, (c) services of the workers were terminated long back, and (d) considering nature of work, the workers must have done similar work at least intermittently.
11. In a number of matters, this Court has also examined the same issue and it has been repeatedly held that where a long period has Contd.....
21 DID NO. 450/2006lapsed since the date of termination, compensation should be paid in lieu of reinstatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma v. Nehru Yuva Kendra Sangathan, 2002-II-LLJ-401 (Del) and K.H. Pandhi v. Presiding Officer, Addl. Labour Court & Anr., 2004-II-LLJ-877 (Del), and Pal Singh v. NTPC Ltd. 2002-IV-LLJ (Suppl)-1482 (NOC):2002 (96) DLT 877.
34. In the statement of claim the workman has stated that he is unemployed since the date of termination of his services. The workman adduced evidence by way of affidavit Ex. WW1/A and in para 11 of the affidavit Ex. WW1/A the workman has stated that he is unemployed since the date of termination of his services. In para 1 of the statement of claim the workman has stated that he was employed by the management as Tailor and @ Rs.7,000/- per month average piece rate. In the cross - examination the workman/WW1 stated that he was not getting any fixed salary from the management and he was being paid on piece rate basis. The workman/WW1 further admitted in the cross - examination that he was not getting wages of Rs.7,000/- per month and he was being paid on piece rate basis.
35. In North East Karnataka Road Transport Corporation v. M. Nagangouda, 2007 LLR 340, it was held that gainful employment of a workman during interregnum will also include either self-employment or earning some amount from agricultural pursuits to maintain himself.
Contd.....
22 DID NO. 450/2006
36. Although the workman has taken the plea that he has been unemployed since the date of termination of his services but the workman has not proved that after termination of his service by the management he had made efforts to secure alternate employment. The workman has not proved that after termination of his services by the management he had applied to any other managements for job and if, he had applied to any other managements which other managements were applied by him for the job and whether he sent any application to any management for job or whether he had appeared for interview in the said managements for job. In the cross - examination of MW1 the workman had asked the question to the effect that whether the management is willing to reinstate the workman on which MW1 stated that the management will think about the same. MW1 has not categorically stated that the management is willing to accept the services of workman. Moreover, as per the case of the workman himself he had made complaints against the management on which Labour Inspector had visited the management on 16.05.2005 and 26.05.2005 on which management was annoyed with the workman and the management had terminated his services. In view of atmosphere of hostility existing between the parties would not be conducive for working by the parties in harmonious manner and looking at the fact that the management has not categorically stated that they are willing Contd.....
23 DID NO. 450/2006to accept the services of the workman, in the circumstances no order of reinstatement of workman in the service of management is being passed.
37. In the cross - examination the workman has himself stated that he was not getting any fixed salary and he was not getting salary of Rs.7,000/- per month from the management and he was being paid on piece rate basis. Looking at the nature of work performed by the workman and that he was working only on piece rate basis, in the circumstances, it cannot be said that the workman would have remained wholly unemployed during the intervening period of his disengagement from the management. As the workman has himself admitted that he was not getting fixed salary of Rs.7,000/- per month and he was being paid on piece rate basis in the circumstances, payment of compensation would serve the ends of justice. The workman will be paid a sum of Rs.10,000/- (rupees ten thousand only) for each year of service rendered by him with the management i.e from the year 1995 to 2005 i.e the workman shall be entitled to a sum of Rs.70,000/- (rupees seventy thousand only) on that account and the workman shall be entitled to a sum of Rs.10,000/- (rupees ten thousand only) for each year of his disengagement from the management i.e from the year 2005 to till date for the loss of work and earning suffered by him on account of unemployment thrusted upon him by the management, hence the workman shall be entitled to Contd......
24 DID NO. 450/2006a sum of Rs.30,000/- (rupees thirty thousand only) on this account i.e in total the workman shall be entitled to a sum of Rs.1,00,000/- (rupees one lac only) from the management. Copies of award be sent to appropriate Govt. for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 31.07.2008.
(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI 25 DID NO. 450/2006 31.07.2008 Pr. Workman in person.
None for management.
Award dictated and announced separately. Copies of award be sent to appropriate Government for publication as per law. File be consigned to record room.
POLC/31.07.2008