Delhi District Court
Between The vs The on 25 January, 2011
IN THE COURT OF DR. SHAHABUDDIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS,
EAST DISTT., DELHI
ID No.199/07(old), 122/09(new)
Unique Case ID No. 02402C0772562007
BETWEEN THE WORKMAN
Sh. Lal Jee,
S/o Sh. Hari Nandan
As represented by Azad Hind Mazdoor Union,
L256 J.J. Colony, Wazirpur,
Delhi110052.
AND THE MANAGEMENT OF
M/s. Shiva Industries,
C91/1, Wazirpur Industrial Area,
Delhi110052.
Date of Institution : 04.12.2007
Date on which award reserved : 25.01.2011
Date of passing of award : 25.01.2011
AWARD
1.The Secretary (Labour), Govt. of National Capital Territory of Delhi, has referred this dispute arising between the parties named above for adjudication to this Labour Court vide Notification No. F.24(1624)/ 06/Lab./409296 dated 23.11.2007 with the following terms of reference.
"Whether services of Sh. Lal Jee, S/o Sh. Hari Nandan have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing ID No.199/07(old), 122/09(new) Page 1 of 12 Laws/Govt. notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. The main facts as mentioned in the statement of claim filed by the workman are to the effect that he had been working regularly with the management since year 1997 at the post of 'Lacker Machineman' drawing last wages @ Rs. 2845/ per month; that he had worked with the management honestly and sincerely and did not give any chance of any complaint to the management during the tenure of his service; that during his employment with the management, he met with an accident on 28.07.1999 and received serious injury in his right hand; that due to this reason, he took his treatment from ESI hospital, Delhi w.e.f. year 1999 till 25.02.2006; that he was declared fit by the doctors concerned to resume his duties w.e.f. 27.02.2006; that he went to the management on 28.02.2006 for resuming his duties but the management did not take him back on duty and in this way, terminated his services illegally w.e.f. 28.02.2006 without any justified reasons; that various legal facilities like appointment letter, annual leaves, PF facilities etc., were also not provided to him by the management; that he was completely unemployed since the date of his illegal termination. Lastly, a prayer was made for his reinstatement with full back wages and all other consequential benefits as per law.
3. The averments of statement of claim of the workman were strongly denied in the written statement (in short WS) filed on behalf of the management. It has been mentioned in the WS, inter alia, that the ID No.199/07(old), 122/09(new) Page 2 of 12 services of the workman were never terminated illegally by the management, as alleged in Statement of Claim; that the workman had come to the management on 27.02.2006 and presented his fitness certificate; that the workman was offered duties on 27.02.2006 but he did not show his interest in his job and himself started absenting from his duties w.e.f. 27.02.2006 without any justified reasons; that in this way, the workman himself left his job at his own will and accord; that whatever was due to him till he actually worked with the management, the same was paid to him as per rules; that nothing was due to him against the management. Lastly, a prayer was made to dismiss his statement of claim.
4. In the rejoinder filed to WS, averments made in the statement of claim were reiterated and those made in the WS were denied.
5. On the basis of pleadings of the parties, following issues were framed on 01.09.2008:
1. In terms of reference.
2. Whether the claimant himself had been absenting voluntarily as is alleged in the WS? OPM
3. Relief
6. From the side of the workman, he examined himself as WW1 and also filed his affidavit Ext. WW1/A on record in support of his contentions and then evidence of the workman was closed.
7. From the side of the management, MW1 Sh. Hemant Gupta filed his affidavit before this court on 14.09.2010 in lieu of his examination in chief but he did not produce himself to depose on oath in support of this affidavit and also did not appear thereafter for his cross examination by ID No.199/07(old), 122/09(new) Page 3 of 12 and on behalf of the workman before this court on 24.01.2011 without any justified reasons. Even no other witness appeared to depose on behalf of the management on 24.01.2011 despite several calls given since morning. Due to these reasons, the evidence of the management was closed as per order of this court dated 24.01.2011. Accordingly, the affidavit of MW1 filed by him on record in lieu of his examination in chief cannot be taken into consideration because he had not deposed before this court on oath in support of that affidavit and also did not turn up for his crossexamination by and on behalf of the workman.
8. Oral final arguments were heard in this case today on 25.01.2011 from Ld. Authorised representative of the workman Sh. S.K. Shukla (in short Ld. ARW) and from Ld. Authorised Representative of the management Sh. R.R. Handa( in short Ld. ARM).
9. The main submissions of Ld. ARW, during the course of oral final arguments, were mainly to the effect that the workman herein had been working regularly with the management since year 1997 at the post of 'Lacker Machine' drawing last wages at the rate of Rs. 2845/ per month ; that he met with an accident on 28.07.1999 while working with the machine of the management during the course of his duties; that due to such accident, he received serious injury in his right hand and he had to take treatment for the same regularly and from time to time for such serious injury w.e.f. 28.07.1999 till 25.02.2006; that he had taken such treatment earlier from ESIC hospital, Delhi and he was operated six times due to which his right hand also became 3 inches short; that he had obtained fitness certificate from the doctor concerned to resume his ID No.199/07(old), 122/09(new) Page 4 of 12 duties w.e.f. 27.02.2006; that when he went to the management on 28.02.2006 for joining his duties again, the management did not allow him to resume his duties and also did not pay his back wages and various other dues; that management asked him to come to join his duties time and again w.e.f. 28.02.2006 onwards but ultimately refused to give him any duties and in this way, his services were terminated by management illegally and without any justified reasons w.e.f. 28.02.2006; that due to these reasons, he had sent a legal demand notice dated 15.05.2006 to the management by Registered AD post as well as by UPC asking his reinstatement as well as payment of his entire back wages with all other dues but his request was not allowed by the management; that in this way, his services were terminated illegally by the management in violation of the provisions of Section 25F of Industrial Disputes Act, 1947 (in short I.D. Act). Lastly, a prayer was made for his reinstatement with full back wages and all other consequential benefits as per law.
10. On the other hand, the main submissions of Ld. ARM, during the course of oral final arguments were, interalia, to the effect that the workman has filed a false and baseless case against the management in this matter; that his services were never terminated by the management illegally, as alleged; that he himself absented from his duties w.e.f. 27.02.2006 and himself left his job at his own will and accord; that he continuously remained absent from his duties without any information to the management in this regard; that whatever facilities were due to him till he actually worked with the management, the same were provided to him as per rules from time to time; that he himself was responsible for ID No.199/07(old), 122/09(new) Page 5 of 12 remaining unemployed for the alleged period; that there was no violation of provisions of Section 25F of ID Act from the side of the management, as alleged by the workman; that nothing was due to workman against the management. Lastly, a prayer was made to dismiss his statement of claim.
11. I perused the entire judicial file minutely in view of the above mentioned rival submissions and my issuewise decision is as under: ISSUE NO. 1
12. In my considered opinion, the primary burden of proof of this issue was upon the workman. In coming to this conclusion, I also find support from an important judgment of Hon'ble Delhi High Court given in the case of UCO Bank vs. Presiding Officer & Another 1999 V AD (Delhi)
514. In para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that principles regarding burden of proof are stipulated in Chapter VII of Indian Evidence Act, 1872 (in short Evidence Act) and that Sections 101 to 114 A of Evidence Act were relevant on this aspect and it was further held in this judgment that the General Principal, which is laid down in these Sections, particularly under Sections 101 and 102 of Evidence Act, was that he who asserts must prove i.e. the burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court to establish the existence or nonexistence of a fact contended to by a party. It was further held in this judgment that the 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 ID No.199/07(old), 122/09(new) Page 6 of 12 incapable of proof.
13. On this point, I also find support from an important judgment of Hon'ble Allahabad High Court given in the case of Canara Bank Lucknow vs. Union of India & Ors. 1998 LAB.I.C. 2923 (Allahabad High Court). It was held in para 11 of this judgment mainly to the effect that section 101 of Evidence Act postulates that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of Sections 102, 103 and 106 respectively of the Evidence Act pertaining to burden of proof in such like cases.
14. Now turning to the evidence of workman himself on record pertaining to this issue, he has filed his affidavit Ex. WW1/A on record and also deposed orally on oath before this court as WW1 on 26.02.2010 and 21.05.2010 respectively in support of the contentions of this affidavit and more particularly in support of his contentions as mentioned by him in his statement of claim. He has also relied upon the documents Ext. WW1/1 to Ext. WW1/3 respectively as well as upon the documents mark 1 to Mark 50 respectively in support of his contentions and mainly to the effect that he had been working with the management regularly since year 1997 at the post of 'Lacker Machineman' and that he met with an accident on 28.07.1999 while working on the machine of the management during the course of his duties which resulted into serious ID No.199/07(old), 122/09(new) Page 7 of 12 injury in his right hand due to which he had to take his treatment regularly w.e.f. 28.07.1999 till 25.02.2006 from time to time. He has further deposed to the effect that when he went to the management to resume his duties w.e.f. 28.02.2006, he was not allowed duties by the management intentionally and ultimately his services had been dispensed with by the management illegally w.e.f. 27.02.2006 without any valid and justified reasons. This witness was cross examined at length by Ld. ARM. I have carefully gone through his examination in chief as well as his cross examination. In my considered opinion, there is no substantial rebuttal from the side of the management, during the course of his cross examination, on the various points deposed by him in his affidavit Ext. WW1/A on record supported by him on oath before this court as WW1.
15. In my further considered opinion, there is also no substantial rebuttal, from the side of the management, of the documents of the workman relied upon by him in support of his case.
16. Due to the above mentioned reasons and taking into consideration the entire material on record, I am of the considered opinion that the workman has been successful to prove this issue in his favour by way of cogent evidence, both oral as well as documentary. Hence, this issue is decided in favour of the workman and against the management. ISSUE NO. 2
17. In my opinion, the primary burden of proof of this issue was upon the management. In coming to this conclusion, I also find support from an important judgment of Hon'ble Delhi High Court given in UCO Bank's ID No.199/07(old), 122/09(new) Page 8 of 12 case (Supra) & that of Hon'ble Allahabad High Court given in Canara Bank's Case (Supra). As already mentioned, there is no evidence of the management at all on record worth consideration, either oral or documentary, in support of the fact that the claimant/workman herein himself absented from his duties voluntarily, as alleged in the WS. Accordingly, the management has miserably failed to prove this issue in its favour by way of any cogent evidence, either oral or documentary. For this reason, this issue is also decided in favour of the workman and against the management.
ISSUE NO. 3 : RELIEF:
18. Now the question arises as to what relief is to be given to the workman against the management in the facts and circumstances of this case.
19. Admittedly, the relations between the workman and the management were not cordial at the time of termination of services of workman by the management. The workman admittedly worked with the management w.e.f. year 1997 till 28.07.1999 when he met with an accident in the premises of the management while working with the machine of the management during the course of his duties. The workman was working at the post of ''Lacker Machineman' with the management during the tenure of his service. In my considered opinion, he is well versed in his occupation and he can join such duties even at this stage with some other concern/management. In my further considered opinion, there is no dearth of such duties available to the workman like the present one in ID No.199/07(old), 122/09(new) Page 9 of 12 most of the cities of India and more particularly in Delhi region. The partial employment of the workman somewhere else cannot be completely ruled out w.e.f. the date of his illegal termination till date. In view of the above mentioned reasons and taking into consideration the entire facts and circumstances of this case, I am of the considered opinion that reinstatement of workman with the management with back wages would not be an appropriate relief in this matter at this stage in the given facts and circumstances of this case. Further, there are number of decisions of Hon'ble Supreme Court of India as well as of various Hon'ble High courts to the effect that even if workman succeeds to prove before the court that his services had really been terminated illegally by the management, the workman was not always entitled to claim reinstatement with back wages in all the situations.
20. In coming to the above conclusion, I also find support from the judgement of Hon'ble Delhi High Court given in the case of Rameshwar Dayal vs. Presiding Officer Labour Court No. VI, Delhi & Another 2007 (3) LLJ 729 (Delhi High Court). In this judgement, the Hon'ble Delhi High Court came to the conclusion that a lumpsum amount of Rs. 50,000/ (Rs. Fifty Thousand) as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropriate relief.
21. In Kishan Lal & Others vs. Govt. of NCT of Delhi & Others, 2007 VI AD (Delhi) 13, the Hon'ble Delhi High Court held that in lieu of grant of relief of reinstatement and full back wages, the management was ID No.199/07(old), 122/09(new) Page 10 of 12 directed to pay to each of the workmen a lumpsum compensation of Rs. 40,000/ (Rs. Forty Thousand) towards full and final settlement of all claims of each workman.
22. The Hon'ble Supreme Court held in Mahavir Singh vs. U.P.Electricity Board & Others 1999 (IX) SCC 178 (Supreme Court) mainly to the effect that awarding of 50% of back wages towards settlement of all claims of the workman was justified in that case.
23. In P.G.I of Medical Education & Research, Chandigarh vs. Raj Kumar & Others, AIR 2001 Supreme Court 479, the Hon'ble Apex Court observed that a discretion was available to an Industrial Tribunal in the matter of grant of back wages and such discretion was to be excercised in a judicial and judicious manner depending upon the facts and circumstances of each case.
24. In Indian Railway Construction Company Ltd. vs. Ajay Kumar, AIR 2003 Supreme Court 1843, the Hon'ble Supreme Court of India awarded one time lumpsum compensation to the workman towards full and final settlement of all his claims.
25. On the basis of above mentioned discussion and taking into consideration the overall facts and circumstances of this case and further in the light of above mentioned authorities, I am of the considered opinion that a one time lumpsum compensation in sum of Rs. 1,00,000/ (Rs. One Lac) to the workman in this matter towards full and final settlement of all his claims would meet the ends of justice. Accordingly, the management is directed to pay a onetime lumpsum compensation in ID No.199/07(old), 122/09(new) Page 11 of 12 sum of Rs. 1,00,000/ (Rs. One Lac) to the workman towards full and final settlement of all his claims in this matter within one month from the date of publication of this Award, failing which the same shall be recoverable by workman from the management at simple interest @ of 10% per annum to be calculated from today till such payment is made.
26. An award is passed to the above effect in favour of workman and against the management and the reference answered accordingly.
27. A copy of this Award be sent to the Secretary (Labour), Govt. of NCT of Delhi for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court today (DR. SHAHABUDDIN)
i.e. on 25.01.2011 Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi
ID No.199/07(old), 122/09(new) Page 12 of 12