Delhi District Court
Workman Filed Statement Of Claim U/S 10 ... vs Jethabhai Pitamberbhai (2005) 8 ... on 6 September, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
I.D. NO.693/06
Date of Institution : 25.07.2005
Award reserved on : 17.8.2007
Date of Award :6.9.2007
BETWEEN
MANAGEMENT OF : SMT. VEENU GULATI M/S GULATI OFFSET
PRINTERS, B-3/11, MODEL TOWN -1, DELHI-09.
AND
ITS WORKMAN : SH. RAVINDER KUMAR S/O SH. SHIVBACHAN
PRASAD R/O E-1/C, GALI NO.14, PREM NAGAR, NEW DELHI.
C/O GENERAL MAZDOOR UNION, T-43, KARMPURA NEW DELHI-
15.
AWARD
1. Workman filed statement of claim U/s 10 (4A) of the Act
against M/s Gulati Offset Printers (hereinafter called the management)
pleading therein following facts :
He worked with the management for two years as paperman at
the wages of Rs.3000/- per month. Management did not give him legal
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facilities such as, Employee State Insurance and Provident Fund
contributions, maintenance of service record. His signatures were
obtained forcibly on blank papers & stamped vouchers at the time of his
appointment. When he asked the management to cancel those
documents on which his signatures were obtained forcibly and also to
issue appointment letter management withheld his wages w.e.f.
December 2004 to February 2005 and terminated his services on
2.3.2005. He complained to the labour office on 3.3.2005 against the
management. Management refused to pay his earned wages w.e.f.
December 2004 to February 2005 and also refused to reinstate him. He
sent a demand notice to the management on 22.3.2005 by registered
post. Management neither replied to the notice nor reinstated him.
Termination of his services is unlawful. He has prayed for his
reinstatement with continuity of service and full back wages and his
earned wages from December 2004 to February 2005.
2. Management contested his claim vide its written statement. It is
stated that he was engaged as helper w.e.f. 1.1.2005 for a period of 3
months and his employment come to an end on expiry of the period of
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employment which neither amounts to retrenchment nor dismissal. It is
further pleaded that claim is not maintainable as he did not serve the
management for 240 days.
It is denied that the management did not maintain his service
record. It is pleaded that his name was entered on the attendance register
and he was getting payment of wages. He was also covered under the
Employees State Insurance. It is stated that Provident Fund Act was not
applicable to the management. It is denied that management obtained
signatures of the claimant on blank papers or stamped vouchers. It is
denied that workman demanded appointment letter or cancellation of
those documents. It is denied that the management did not pay his
wages from December 2004 to February 2005.
It is also stated that proprietor of the management became a
widow at a young age who struggled hard to establish her business with
only four workers. It is stated that workman alongwith other his three
co-workers is running a printing press at Karol Bagh. It is denied that he
is entitled to any relief.
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3. Following issues were framed :
1. Whether the services of the workman was terminated on
2.3.2005 unlawfully and unjustifiably as alleged in para
2 of the statement of claim? OPW
2. Whether the workman's employment was for a fixed
duration which got expired as alleged in para 1 of the
preliminary objection of WS? OPM
3. Whether the claim is not maintainable as per objections
of written statement?OPM
4. Relief.
4. Workman examined himself as WW-1 and his co-worker
Deedar Singh as WW-2 and thereafter closed his evidence. Management
examined Smt. Veenu Gulati as MW-1 and thereafter closed its
evidence.
5. I have carefully perused the case file and also heard Ld.
Authorised Representative for both parties.
ISSUE NO. 3
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6. It is stated on behalf of the management that after
commencement of conciliation proceedings the conciliation officer was
to submit his report to the appropriate government as per Section 12 (4)
and thereafter appropriate government was to consider the same as per
Section 12 (5) of the Act. On the contrary the conciliation officer
wrongly advised the workman to file claim U/s 10 (4A) of the Act.
There is substance in contention of the management as is clear from the
provisions of section 12 (4) and 12 (5) of the Act which are reproduced
below :
Section 12 (4) : If no such settlement is arrived at, the
conciliation officer shall, as soon as practicable after the
close of the investigation, send to the appropriate
Government a full report setting forth the steps taken by
him for ascertaining the facts and circumstances relating
to the dispute and for bringing about a settlement thereof,
together with a full statement of such facts and
circumstances, and the reasons on account of which, in
his opinion, a settlement could not be arrived at.
Section 12 (5) : If, on a consideration of the report
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referred to in sub-section (4), the appropriate Government
is satisfied that there is a case for reference to a Board,
[Labour Court, Tribunal or National Tribunal], it may
make such reference. Where the appropriate Government
does not make such a reference it shall record and
communicate to the parties concerned its reasons therefor.
7. Ld. AR for management has further contended that worker can
file claim under section 10(4A) of the Act directly in the court only if
there is a written order of discharge, dismissal, retrenchment or
termination as the word order means written order and since there is no
written order of termination, the claim is not maintainable. There is
nothing in the Act which supports the contention of the management that
the order means written order. Communication of discharge, dismissal,
retrenchment or termination may be oral also.
ISSUE NO. : 1& 2
8. These are connected issues and thus taken up together for
adjudication.
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9. Workman has pleaded that he worked with the management for
two years. He has not given any date, month and year of his
employment in the statement of claim. Management has denied his case
and alleged that he was appointed as helper on 1.1.2005 for a fixed
period of three months and his employment came to an end on
31.3.2005. Therefore his case is covered U/s 2 (oo) (bb) of the Act. It
is also denied that claimant is a 'workman' having not completed 240
days of service. Claimant has alleged that his services were terminated
unlawfully as he was not given any notice nor retrenchment
compensation. Management has stated that section 25 is not applicable
to him as he did not work for 240 days with it.
10. In Bhogpur Co-operative Sugar Mills Ltd. v. Harmesh Kumar
2007 LLR 183 SCThe Hon'ble Apex Court held that :
"For applicability of section 25 F of the I.D. Act,
the workman is bound to prove that he had been
in continuous service of 240 days during twelve
months preceding the order of termination."
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11. In Sri Niwas (SCC pp.197-198, para 13) our own Hon'ble High
Court observed as follows :
"13. The provisions of the Evidence Act,
1872 per se are not applicable in an
industrial adjudication. The general
principles of it are, however, applicable. It
is also imperative for the Industrial
Tribunal to see that the principles of
natural justice are complied with. The
burden of proof was on the respondent
workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. In terms of Section 25F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied. Section 25 F postulates the following conditions to be fulfilled by an employer for effecting a valid retrenchment-
(i) one month's notice in writing indicting the reasons for retrenchment or wages in lieu thereof;
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(ii) payment of compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months.' It was further observed (SCC p.198, para 14)-
'14.... As noticed hereinbefore, the burden of proof was on the workman.
From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act.'
12. It is amply clear from the aforesaid judgments as well as the following judgments that onus is on the workman to prove that he had worked for atleast 240 days in a year preceeding the date of alleged termination of his employment.
In Range Forest Officer v. S.T. Hadimani (2002) 3 Supreme Court Cases 25 the Hon'ble Apex Court held :
".........in our opinion the Tribunal was 9 not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year proceeding 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."10
In case of Surendra Nagar District Panchayat and Another Vs Jethabhai Pitamberbhai (2005) 8 Supreme Court Cases 450, the Hon'ble Apex Court observed as follows :
"The 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 evidence apart from examining himself to prove the factum of his being in employment of the employer... From the tenor of the judgment of the Labour Court and the High Court, it is apparent that the judgments have proceeded on the premise as if the burden of proof lies on the employer to prove that the employee had not worked with him for 240 days in the preceding year immediately before the date of his termination. The Labour Court and the High Court committed an error in placing the burden on the employer to prove that the workman had not worked for 240 days with the employer."11
In Ravi N. Tikku v. Deputy Commissioner (S.W.) & Ors. 2006 LLR 496 recently our own Hon'ble High Court discussed the issue of onus of proof of employment and observed as follows :
"It has been repeatedly held that so far as an industrial claim is concerned, its procedure is guided by the general principles of the law of evidence that he who asserts must prove. Based on the rule of Roman Law - 'el incumbit probatio, qui dicit, non qui negat' - the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and no upon the party who denied it, for a negative does not admit of direct and simple proof. It is well settled that the onus and burden of proof of establishing the employment is consequently on the workman."
In R.M. Yallatti V. Assistant Executive Engineer 2006 (108) FLR 213 SC it was held by the Hon'ble Apex Court that it has repeatedly held that the burden of proof is on the claimant to show that he had worked for 240 days in a year. I quote the relevant observations :
"The above decisions however make it 12 clear that mere affidavits or self-
serving statements made by the claimants/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."
13. How the worker can prove that he was the workman of the respondent management was clarified by our own Hon'ble High Court in the case of M/s Automobile Association of Upper India vs. P.O. Labour Court II & Anr. 2006 LLR 851 wherein it was held that workman can prove his employment by production of appointment letter, written agreement or by circumstantial evidence which can be in the nature of attendance register, salary register, leave record, deposit of PF 13 contribution, employees state insurance contribution. It was also held that the workman can call upon the management to produce these records and on failure of the management to produce such record, an adverse inference can be drawn against the management.
14. Claimant filed an application calling for original record of attendance register, leave register, appointment letter for the period 2003 to 2004. Management in its reply stated that it is in possession of the attendance register for the period April 2003 to 2005 which is being produced. It is further stated that he only worked for 3 months in the year 2005. It is also stated that all its employees were old and no fresh appointment was made in the year 2003 hence no appointment letter was issued to the claimant.
15. Claimant in his testimony has relied upon photocopies of several documents. None of these documents prove the duration of his employment wth the management. Proprietor of the management appeared in the witness box as MW-1. She had brought attendance register and wages register for the period April 2003 to March 2005.14
She stated that as soon as a person is employed his name is entered in the attendance register. Nothing helpful to the workman could be elicited from the mouth of this witness during her cross-examination.
16. Claimant was confronted with document Ex.WW1/4 in his cross-examination. He admitted that Ex.MW1/4 is original letter of his appointment and bears his signatures at point A. This document reads that the claimant was appointed on 1.1.2005 for a period of three months at the wages of Rs.2870/- per month. Claimant in his cross-examination stated that last date of his employment was 2.3.2005 and thereafter he did not go to the management. I quote the same :
"Ex.WW1/M4 is the original letter of appointment which bears my signatures at point A. It is correct to suggest that the last day of employment with the management was 2.3.2005 and threreafer, I did not go to the establishment."
17. Apart from oral testimony of the workman that he had worker for two years with the management there is absolutely nothing on record 15 to show that he worked for 240 days immediately preceeding 2.3.2005. His affidavit alone is not sufficient as held in Range Forest Officer (supra) being self serving statement.
18. Claimant has also alleged that termination of his employment is violative of not only section 25 F but also of section 25 G of the Act. Hon'ble Apex Court in Bhogpur Co-operative Sugar Mills Ltd. (supra) held that said provisions would not be applicable in case where section 2 (oo) (bb) is attracted. I quote :
"The said provisions, however, would have no application in a case where section 2 (oo) (bb) of the Act is attracted.
The said provision reads, thus :
"2(oo) 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 induce
(a) - (b) *** (bb) termination of the service of the workman as a result of the non-renewal of the contract of 16 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,"
9. Termination of services of a workman as a result of non-renewal of the contract of employment on its expiry or termination of such contract of appointment under a stipulation in that behalf contained therein would, thus, not attract the definition of the term 'retrenchment'. See Municipal Council, Samrala v. Sukhwinder Kaur, 2006 (110) FLR 1155 (SC) and Municipal, Samrala v. Raj Kumar, (2006) 3 SCC 81."
19. The claimant stated that the cause of termination of his employment was that he demanded appointment letter from the management and cancellation of those documents on which management obtained his signatures forcibly. There is no evidence that the management obtained his signatures forcibly on any document. He himself admitted his letter of appointment as Ex.MW1/4. He admitted 17 that he signed the same at point A. So if letter of appointment was issued to him non issuance of which was allegedly cause of termination of his services, he stood falsified.
20. In Dilip H. Shirke v. Zilla Parishad Yeotnal (1990 Labour IC
100) it was observed :
"The amended sub clause (bb) would apply only to such cases where the work ceases with the employment or the post itself ceases to exist or such analogous cases where the contract of employment is found to be fair, proper and bonafide".
Claimant has not even alleged that his fixed term employment was vitiated by malafides as whimsical hiring and firing.
21. Disengagement of workman after expiry of fixed term was upheld in Director IMD, U.P. . vs.. Pushpa Srivastava 1992 (65) FLR 671 and Diwakar Sharma ..vs.. University of Delhi 2000 Lab. IC 628 (Delhi).
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22. In view of aforesaid it is clear that management has been able to prove that claimant was appointed for a fixed period of 3 months and his case is accordingly covered U/s 2 (oo) (bb) of the Act. Claimant has not been able to prove that he had worked atleast for 240 days immediately preceeding the date of alleged date of termination of his services. As such, he is not a workman eligible for statutory benefits under the Act.
23. These issues are accordingly decided in favour of the management and against the workman.
ISSUE NO. : 4
24. As such the workman is not entitled to any relief. File be consigned to record room.
Announced in open court
on 6.9.2007 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS: DELHI
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