Delhi District Court
Its vs 2001 To 28.02.2002? Opm on 20 November, 2010
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL
DISTRICT & SESSIONS JUDGE / PRESIDING OFFICER
LABOUR COURT KARKARDOOMA COURTS, DELHI.
ID NO. 445/10 (New) 247/03(Old)
Date of Institution :29.03.2003
Date of Arguments:Written Arguments
Date of Award :20.11.2010
IN THE MATTER BETWEEN:
M/s Parvati Steel Industries Ltd.
A-27, Rajasthani Udyog Nagar
G.T. Karnal Road, Delhi-33
The management
AND
ITS WORKMAN
Sh. Jawahar Shah
S/o Sh. Khedan Shah
C/o Delhi Pradesh Rajdhani Mazdoor Union
A-10, Nanda Road,
Adarsh Nagar, Delhi-33
The workman
AWARD
The Secretary (Labour), Government of NCT of Delhi
vide its order No. F 24(3678)/2002-Lab./27365-69 dated
05.03.2003 referred an industrial dispute between the above
mentioned parties to the Labour Court with the following
terms of reference:
"Whether the services of Sh. Jawahar Shah S/o Shri
Khedan Shah C/o Delhi Pradesh Rajdhani Mazdoor
Union, A-10, Nanda Road, Adarsh Nagar, Delhi-33 have
been terminated illegally and/or unjustifiably by the
management, and if so, to what sum of money as
monetary relief alongwith consequential benefit in
terms of existing laws/Government notification and to
ID No.445/10 1 of 13
what other relief is he entitled and what directions are
necessary in this respect?"
2. The facts in brief of the workman case, are that he was
employed by the management in the month of March'1990 at
the post of Supervisor and his salary was Rs.2,700/- per
month. His last drawn salary was Rs.3,000/- per month.
Although, he had been performing his duties with the
management satisfactorily yet the management did not issue
him any appointment letter despite of his repeated request
and did not pay for overtime duties and also failed to provide
legal benefits. The management instead of providing all
these facilities to the workman terminated his services on
16.03.2002 without serving any notice and without paying
any wages in lieu of notice. The management also did not
cooperate in filling of the ESI form when he sustained injuries
in his right leg due to accident. He sent a demand notice
dated 30.04.2002 to the management. The workman made a
claim dated 07.06.2002 before the conciliation officer but the
conciliation proceedings failed due to non cooperative
attitude of the management. As the management
terminated the services of the workman, he is entitled for
reinstatement in service. The workman prayed for passing
an award in his favour directing the management for his
reinstatement in service with back wages, along with all
other consequential benefits.
3. The management admitted that the workman had been
working with the management as Supervisor. It was pleaded
that initially workman joined his duties in August 1995 to May
ID No.445/10 2 of 13
1997. Thereafter, he joined the management in August 1998
and continued his duties up to March 1999. Again he joined
the services with the management in the month of November
1999 and continued to work till March 2000. And lastly, he
joined the management as Supervisor on 01.10.2001 on
probation for a period of five months up to 28.02.2002. It
was also admitted that his last drawn salary was Rs.3,016/-
per month. The management issued appointment letter to
the workman. Work and conduct of the workman was not
satisfactory. He was provided all the legal facilities including
ESI, PF, bonus, etc. Although he was appointed up to
28.02.2002 yet he did not report for duty after 24.02.2002.
His services stood determined on expiry of probation period.
No amount towards earned wages was payable to the
workman at the end of his service tenure. Demand notice
dated 30.04.2002 was received and reply was sent to the
workman promptly. The management denied all other
material allegations and prayed for dismissal of his
statement of claim.
4. On the pleadings of the parties, following issues were
framed:
1. Whether workman was engaged on probation from
01.10.2001 to 28.02.2002? OPM
2. Whether workman is not covered within the
definition of Section 2(s) of the I.D. Act? OPM
3. As per terms of reference.
5. In support of his case, workman examined himself as
ID No.445/10 3 of 13
WW1. He filed and proved his affidavit as Ex. WW1/A and
relied on documents Ex. WW1/1 to Ex. WW1/25 and also
placed reliance on document Mark A to Mark G.
In order to prove its case, the management examined
Shri Mukesh Bhatia, the Manager of the management as
MW1. He filed and proved his affidavit as Ex. MW1/A and
placed reliance on documents Ex. MW1/1 to Ex. WW1/17 and
Ex. MW1/M1 to Ex. MW1/M5.
6. After closing of evidence, this case was adjourned many
times for arguments but AR for the parties opted not to
address any oral argument instead, both the parties filed
their written submissions.
7. On perusal of the pleadings of the parties, analysing the
evidence and material placed on record and considering the
written arguments submitted by the parties, I have formed
my opinion on the issues and that are discussed here in
below issue-wise:
FINDINGS ON ISSUE NO.1
8. The burden to prove this issue was on the management
and it had to prove that the workman was engaged on
probation from 01.10.2001 to 28.02.2002. On analysing the
evidence, I find that management has placed on record the
appointment letter and MW1 proved the appointment letter
as Ex. WW1/M5. On perusal of this document, I find that it is
dated 01.10.2001 and by this appointment letter, workman
was appointed as Supervisor for five months from 01.10.2010
to 28.02.2010. Management has also proved application of
ID No.445/10 4 of 13
the workman which is Ex. WW1/M4. The same bears
signatures of the workman at point A. The workman in his
cross-examination, admitted that he was working with the
management as a Supervisor. He also admitted that his
application Ex. WW1/M4 dated 30.01.2001 for his
appointment w.e.f. 01.10.2001 was signed by him. He also
admitted his signatures on appointment letter. He continued
to admit that he worked with the management till
28.02.2002. The workman in this way controverted his plea
made in the statement of claim that no appointment letter
was issued to him. Ex. WW1/M5 has established that he was
appointed on probation for fixed term.
In view of the above reasons, discussion and evidence
on record, and particularly discussed here in above this issue
is decided in favour of the management and against the
workman and it is held that the management engaged
workman on probation from 01.10.2001 to 28.02.2002.
FINDINGS ON ISSUE NO.2
9. The burden to prove this issue was on the management
and management had to prove that workman is not covered
under the definition of workman as provided U/s 2 (s) of the
Act. On analysing the evidence, I find that workman himself
admitted that he was working with the management as
Supervisor. MW1 in his affidavit and cross-examination
stated that the workman had been working with it as a
Supervisor. MW1 stated that at the time of joining services,
the salary of the workman was Rs.2,700/- per month and in
the year 2002 at the time of termination of his services, his
salary was around Rs.3,000/-.
ID No.445/10 5 of 13
10. Section 2(s) of the Act provides as under:
"2.Definitions.- In this Act, unless there is anything
repugnant in the subject or context. -
(a) to (r)***
[(s) "workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work
for hire or reward, whether the terms of employment be
express or implied, and for the purposes of any proceeding
under this Act in relation to an industrial dispute, includes
any such person who has been dismissed, discharged or
retrenched in connection with, or as a consequence of, that
dispute, or whose dismissal, discharge or retrenchment has
led to that dispute, but does not include any such person -
(i) ***
(ii)***
(iii)who is employed mainly in a managerial or
administrative capacity, or
(iv)who, being employed in a supervisory capacity, draws
wages exceeding one thousand six hundred rupees per
mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested
in him, functions mainly of a managerial nature.]"
11. It has not been pleaded on behalf of the workman that
his designation was ornamental or he was not performing his
duties as Supervisor. In these circumstances, provisions of
Section 2(s) (iv) of the Act are attracted on the facts of
present case and accordingly, it is held that workman is not
covered under the definition of workman. Resultantly, this
issue is decided in favour of the management and against the
workman.
FINDINGS ON ISSUE NO.3:
12. It has been argued on behalf of the management that
burden to prove issue no.3 that service of the workman were
terminated illegally and/or unjustifiably was on the workman.
ID No.445/10 6 of 13
The management relied on a number of case in this regard
including Surendra Nagar District Panchayat & Another
vs. Jetha Bhai Pitambar Bhai 2006 LLR 250. It was held
there that:
"On the face of the aforesaid authorities, 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. The burden of
proof having been on the workman, he has to adduce an
evidence in suport of his contention that he has complied
with the requirement of section 25B of the Industrial
Disputes Act."
13. Counsel for the management further relied on a case
Surendranagar Distt. Panchayat and Anr. vs. Gangaben
Laljibhai and Others 2006 (110) FLR 548. It was held
therein that:
"It was held in all these cases that the burden of proof lies
on the workman to show that he had worked continuously
for 240 days for the preceding one year and it is for the
workman to adduce evidence apart from examining himself
to prove the factum of being in employment of the
employer."
14. Management further relied on a case M/s Automobile
Association Upper India vs. The Presiding Officer
Labour Court-II & Another 2006 LLR 851. It was held by
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 v. First Labour Court, West Bengal, and 1973 Lab.
I.C. 398 N.C., John v. TTS & CE Workers Union. Thus burden
ID No.445/10 7 of 13
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."
15. Since I am also of the view that burden to prove lies on
the workman to prove that he had been in continuous service
of the management for a period of 240 days in one calendar
year preceding the date of termination of his services
therefore, I am not burdening this award by mentioning some
more rulings relied on by counsel for the management.
16. It has been pleaded on behalf of the management that
the claimant has been performing his duties intermittently
with the management and his broken service cannot be
considered. He relied on a case D.G.M., Oil & Natural Gas
Corpn. Ltd. & Anr. vs. Ilias Adulrehman 2005 LLR 235. It
was held by apex court therein that:
"A perusal of the evidence adduced by the workman
himself shows that he went in search of employment to
different places and whenever there was a temporary
employment available in different Departments of the
appellant-Corporation; be it the field work or the work in
the Chemistry Department, he accepted the employment
and worked in these Departments not in one place alone
but at different places like Baroda and Mehsana. It has
come on record that the Management did not try to
accommodate the appellant in a permanent job but could
not do so because of lack of qualification. In such
circumstances we think the Industrial Tribunal was justified
in coming to the conclusion that the number of days of
work put in by the respondent in broken periods, cannot be
taken as a continuous employment for the purpose of
section 25F of the Act as has been held by this Court in the
case of Indian Cable Co. Ltd. (supra). We are aware that
the judgment of this Court in Indian Co. Ltd. (supra) was
rendered in the context of section 25G of the Act, still we
ID No.445/10 8 of 13
are of the opinion that the law for the purpose of counting
the days of work in different Departments controlled by an
apex Corporation will be governed by the principles laid
down in the judgment of Indian Cable Co. Ltd. (supra), and
the Industrial Tribunal was justified in dismissing the
Reference."
17. It has also been pleaded on behalf of the management
that termination of services of the workman does not amount
to retrenchment as he was engaged only for a fixed tenure of
service and termination of his services is covered U/s 2(oo)
(bb) and in this situation, it was not obligatory for the
management either to assign any reason or to give any
notice or offered or pay wages in lieu of notice and
retrenchment compensation. The management relied on a
case Punjab State Electricity Board vs. Darbar Singh
2006 LLR 68. The Apex Court held:
"Recently, the question was examined in Batala
Cooperative Sugar Mills Ltd. vs. Sowaran Singh, 2005 (7)
Supreme 165.
Section 2(oo) (bb) reads as follows:
"(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 include-
(a) ..............
(b) ..............
(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".
10. The materials on record clearly establish that the
engagement of the workman was for specific period and
conditional. It was clearly indicated that on appointment of
a regular employee, his engagement was to come to an
end."
18. Counsel for the management further relied on a case
ID No.445/10 9 of 13
The Haryana State Agricultural Marketing Board vs.
Subhash Chand & Anr. 2006 LLR 393. The Apex Court held
that:
"If termination of service of workman in view of exception
contained in clause (bb) of Section 2 (oo) of Industrial
Disputes Act was not a retrenchment, question of
applicability of Chapter VA of the Act would not arise."
19. Counsel for the management further relied on a case
Bhogpur Co-operative Sugar Mills Ltd. vs. Harmesh
Kumar 2007 LLR 183. It was held therein by Apex Court
that:
"Termination of services of a workman as a result of non-
renewal of the contract of employment on its expiry under
a stipulation does not attract the definition the terms
'retrenchment'."
20. Let, us examine the evidence and material placed on
record in this regard. On perusal of file, I find that workman
in his cross-examination admitted that he was getting the
facility of ESI & PF and he was issued ESI Card. He also
submitted his signatures on the wages for the month of
October 2001 Ex. WW1/M1 and M2. He continued to admit
that he filed two ESI cards Ex. WW1/24 & 25. He denied the
suggestion that he had been in service of management from
August 1995 to March 1996; August 1997 to March 1998;
November 1999 to March 2000. MW1 in his affidavit Ex.
MW1/A stated that workman had been on the muster roll of
the management for a period August 1995 to May 1996;
06.08.1998 to March 1999; April 1999 to October 1999;
02.11.1999 to March 2000; and from 01.10.2001 to
28.02.2002.
ID No.445/10 10 of 13
21. On analysing the evidence on record, I am of the view
that workman could not established on record that he had
been in continuous service of the management for 240 days
preceding the date of termination of his service in one
calendar year. The reasons which support my decision are
firstly, that workman himself placed on record two ESI cards
Ex. WW1/24 & 25. Ex. WW1/24 contains the date of
appointment as 01.08.1995 and Ex. WW1/25 contains the
date of appointment as 06.08.1999. Thus, it stands
established on record that services of workman were availed
by the management intermittently and not regularly.
22. Secondly, management has also filed and proved two
appointment letters one dated 06.08.1998, Ex. MW1/7 and
another appointment letter dated 30.09.2001 Ex. WW1/M4.
This has further strengthened the plea of the management
that services of the workman were being availed by the
management intermittently and not regularly.
23. Thirdly, the workman deposed contrary to his plea as
such there is contradiction in the pleadings and evidence in
his statement of claim. He specifically pleaded that he was
not provided any appointment letter despite of repeated
request and reminders by him. In cross-examination he
admitted his signatures on appointment letter and the
management succeeded in proving not only one appointment
letter but also two appointment letters.
24. Fourthly, since it has been established on record that
services of the workman were being availed intermittently, a
ID No.445/10 11 of 13
case law relied on by the counsel for the management
D.G.M., Oil & Natural Gas Corpn. Ltd. & Anr. vs. Ilias
Adulrehman (supra) is applicable on the facts of present
case.
25. Fifthly, the evidence on record has further established
that services of the workman were availed only for specefic
period and his service come to an end after expiration of
period of his tenure.
26. Sixthly, the workman even admitted signatures on the
appointment letter Ex. WW1/M5 wherein it has been
specifically mentioned that he was being appointed on
probation for specific tenure. Thus as held in a case The
Haryana State Agricultural Marketing Board vs.
Subhash Chand & Anr. (supra), it was not obligatory on the
part of the management either to assign any reason or to
issue any notice or pay wages in lieu of notice period or
retrenchment compensation.
27. Lastly, in the written arguments, no other point has
been pleaded on behalf of the workman which requires more
discussion.
In view of the reasons, discussion and evidence on
record and particularly discussed here in above, issue no.3 is
decided in favour of the management and against the
workman.
ORDER
28. Consequent upon the decision of all the issue in favour of the management and against the workman, terms ID No.445/10 12 of 13 of reference are answered in favour of the management and against the workman and it is held that the workman could not established or proved that the management terminated his services either illegally and/or unjustifiably. Therefore, he is not entitled to get any relief. No other direction is necessary in this regard.
An award is accordingly passed.
29. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to record room.
Announced in the Open Court on 20th November, 2010 (DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi ID No.445/10 13 of 13