Delhi District Court
Rajesh Singh vs M/S Techbooks Electronics Services ... on 9 February, 2015
IN THE COURT OF MS. ILLA RAWAT : POLCV: KARKARDOOMA
COURT: DELHI
ID No : 84/05
Unique Case ID No. 02402C0246182005
In the matter of :
Rajesh Singh
S/o Sh. Devender Singh
C/o Sh. T. S. Rajpoot, Adv.
Chamber No.Y67, Civil Side,
Tis Hazari, Delhi 110 054.
........ Workman
VERSUS :
M/s Techbooks Electronics Services Pvt. Ltd.
A193, Okhla Phase I,
New Delhi.
........ Management
Date of Institution : 07.05.2005
Date of reserving award : 09.02.2015
Date of pronouncement : 09.02.2015
A W A R D
A reference no. F.24(3306)/03/Lab./612226 Dt.29.03.2005 was
sent by Sh. Narendra Kumar, Secretary (Labour), Govt. of NCT of Delhi
for adjudication and disposal of the industrial dispute between the
workman and management by formulating the following issue :
"Whether the services of Sh. Rajesh Singh, S/o Sh.
Devender Singh have been terminated by the
management illegally and/or unjustifiably and if so to
what sum of money as monetary relief alongwith
consequential benefits in terms of existing laws/Govt.
Notifications and to what relief is he entitled and what
directions are necessary in this respect ?"
ID No : 84/05 1/10
2. A notice of the aforesaid reference was sent to the workman
for filing statement of claim. The workman filed his statement of claim
stating that he was working with the management as Data Computer
Operator since 17.10.2001 and that his last drawn salary was Rs.4000/
per month. He further stated that though he was doing his duties
diligently, the management was not providing legal facilities such as
minimum wages as prescribed by Delhi Government, annual leaves,
weekly leaves, overtime, conveyance allowance, house rent etc. to him
and that he demanded the aforesaid facilities from the management, due
to which the management got annoyed and illegally terminated his
services without conducting any domestic enquiry, notice or charge sheet
in violation of Sec.25F of Industrial Disputes Act, 1947. The workman
further stated that his wages from 01.07.2003 to 17.10.2003 were not
paid by the management and that he was turned away on 01.07.2003 and
was not permitted to resume his duties, though he regularly went to his
work place and that he was also not permitted to mark his presence from
17.06.2003. The workman stated that when he questioned the
management as to why he was not being permitted to mark his presence
and had not been paid his dues, he was told to continue to perform his
duties and was assured that his presence would be marked later on. On
16.10.2003, workman again asked the management for his wages and on
this that he was told that his services had been terminated w.e.f
17.03.2003. He was also not paid his dues and was further not permitted
to mark his presence and that the management denied that the workman
was their employee and claimed that he had been working for M/s
Techbook International even though workman had no concern with said
firm. The workman further stated that during his tenure of employment,
ID No : 84/05 2/10
the management had obtained his signatures on several blank papers and
yet did not give him any document from which he could establish his
relationship as an employee of the management. The workman further
stated that he got sent a demand notice through his union to the
management by way of registered A.D and Speed post, but their was no
reply given by the management and thereafter, he made a complaint to
Asstt. Labour Commissioner, where the management also appeared
pursuant to notice issued to them, but did not settle the matter. The
workman states that he is unemployed since the date of his illegal
termination. In last a request is made that directions may be given to the
management to reinstate his services with continuity of service and full
back wages.
3. A notice of the aforesaid statement of claim was sent to the
management. The management contested the claim of the workman by
filing written statement stating that the there was no relationship of
employee and employer between the claimant and the management. It is
also stated that claimant has suppressed material facts in as much as he
has concealed the fact that he had been appointed on temporary basis for
a very brief period and that his services were used by the management as
and when required in the exigencies of work and that claimant never
completed 240 days of continued service with the management in a
calender year. It is denied that any demand notice was received by the
management. It is also stated that the claimant is even otherwise
gainfully employed and is not entitled to any money from the
management. On merits, the claimant's assertion that he was a regular
employee of the management has been challenged. Rest of the averments
made in the claim petition by the workman have also been converted on
ID No : 84/05 3/10
merits. At last, a request is made by the management that claim filed by
the workman may be dismissed as same is devoid of any merits.
4. The workman did not file rejoinder despite opportunity.
Therefore, on 09.04.2007 as per pleading of the parties, following issues
were framed for adjudication and disposal of the case :
1. Whether the claimant is a 'Workman' as enshrined, U/s
2(S) I.D Act ?
2. Whether there existed relationship of workman and
management between the claimant and the
respondent ?
3. Whether the services of the workman were terminated illegally and/or unjustifiably ?
4. Relief in terms of reference.
5. The opportunity was given to the workman to lead workman evidence. The workman examined himself as WW1 and tendered his affidavit as Ex.WW1/A and relied upon the documents Ex.WW1/1 to Ex. WW1/5. Document Ex.WW1/1 is ESI Card of the workman, document EX.WW1/2 is demand notice and its receipt is Ex.WW1/3, document Ex.WW1/4 & Ex. WW1/5 are photocopies of copy of statement claim and rejoinder filed by the workman before the office of Asstt. Labour Commissioner Thereafter, he was cross examined by the management.
6. The management examined MW1 Sh. Sanjay Lakhera, who tendered his affidavit as Ex.MW1/A. He faced cross examination conducted on behalf of the workman and produced document Ex.MW1/W1(Colly) i.e the ESI returns for 01.04.2002 to 30.09.2002, ID No : 84/05 4/10 01.10.2002 to 31.03.2003 and 01.04.2003 to 30.09.2003.
7. A.Rs of both parties addressed their respective oral arguments. I have considered their submissions and perused the record. My findings on the issues are as follows:
(A) FINDINGS ON ISSUE No.1 & 2 :
"Whether the claimant is a 'Workman' as enshrined, U/s 2(S) I.D Act ? ?"
AND "Whether there existed relationship of workman and management between the claimant and the respondent"
Issue no.1 & 2 are taken up together as they are inter connected.
The initial onus was on the workman to show from the record that he is covered within the definition of workman as provided u/s 2 (s) of the ID Act, 1947. The workman has stated that he was working as Data Computer Operator with management w.e.f 17.10.2001and that he was not permitted to mark his presence since 17.06.2003. He further stated that though he reported for work regularly he was not permitted to join duties since 01.07.2003 and on 16.10.2003 he was told by the management that his services had been terminated w.e.f 17.03.2003. He was also not paid his wages and other entitlements from 01.07.2003 onwards.
On the other hand the management had denied that the claimant was its regular employee and further denied having any employeremployee relationship with the workman.ID No : 84/05 5/10
The workman has filed his affidavit reiterating the averments made in his statement of claim. During his crossexamination, conducted on behalf of the management, the workman, who was examined as WW1, stated that he had not given any request in writing to seek employment from the management and that he did not have any documentary proof showing that he was getting Rs.4000/ per month as salary. He also stated that he never demanded legal facilities from the management in writing. He further admitted that he did not have any proof to show that he worked with the management continuously from 17.01.2001 to 17.10.2003, or that he had worked continuously for a period of 240 days for the management. He also admitted that management had never taken his signatures on blank papers and voucher and that no termination letter had been given to him. He further stated that no company official verbally told him not to come to the office of the management. He volunteered to state that when he went for work on 17.10.2003 he was not allowed to enter the premises. During his further crossexamination the workman also stated that he had worked in a computer shop for about a month after his alleged termination. Though, workman claimed that he never got employment again after his alleged termination, he could not prove that he had taken any effective steps to procure employment by getting himself registered with employment exchange etc. The workman also stated that his family expenditure was around Rs.3000/ per month, which was borne by his father, but then he also stated that his father was a retired person and that his wife and mother were non working and thus he could not explain as to how the monthly expenses of the family were being met.
On behalf of workman much reliance has been laid upon the ESI card Ex.WW1/1 to emphasize that the said card was issued to him by ID No : 84/05 6/10 the management as he was their regular employee. This submissions was reiterated by the A.R for the workman during arguments addressed before the court. However, this submission is belied by the documents, which workman got produced from MW1 i.e. the ESI returns for the period 01.04.2002 to 30.09.2002, 01.10.2002 to 31.03.2003 and 01.04.2003 to 30.09.2003. None of these returns find mention of the name of the workman therein.
Even otherwise, even a temporary or casual employee, who has worked for management for one day is entitled to benefit of ESI as per the observation made by Hon'ble Delhi High Court in case titled as "DSOI through its Secretary Vs. Employees' Provident Fund Organisation 2014" LLR 702, wherein it was held that : "definition of "employee" as provided U/Sec.2(f) of the Employees Provident Fund and miscellaneous provisions Act, 1952 does not exclude "casual employee".
Although the said judgment was passed in a case challenging the order of Employee's Provident Fund Appellant Tribunal, the observations made therein are relevant in the present case, since it has been clearly held in the said case that "casual employee" employed even for one day or for more than one day or in connection with the work of the establishment against wages would not be excluded from the coverage of the act. Thus, the fact that the workman herein is holding an ESI card by itself does not give rise to conclusion that he was a regular employee of the management who had worked for a period of 240 days prior to termination of his services by the management.
ID No : 84/05 7/10It is significant to note that the workman has not summoned any other record from the management or from any other office to show that he was in service with the management for about two years and that he had completed 240 days of work with the management in the year preceding date of his termination. The workman could have proved the fact that he was in service with the management by summoning incidental records in the nature of attendance register, salary register and leave record etc. from the management and the employee's provident fund record from the concerned department, however, the workman did not have the requisite record summoned from any of the concerned departments to show that he was in service with the management for at least 240 days.
It is noteworthy, in his claim petition the workman has stated that he was stopped for marking his attendance only on 17.06.2003, thereby giving rise to presumption that from 17.10.2001, the date he claims to have joined service with the management, till 17.06.2003 the workman had marked his presence as and when he went to attend his duties with the management. In these circumstances, non summoning of the attendance record by itself creates a doubt regarding the claim made by the workman. The workman has also not examined any other co worker in support of his contentions that he had worked for the management for a continuous period of 240 days. Further, even though the workman has stated that he was not permitted to enter the premises of the management since 01.07.2003, during his crossexamination he has admitted that no company official had told him verbally not to come to the office. Even his claim that his signatures were taken on blank papers appears to be false in light of the facts that which have emerged during his crossexamination.
ID No : 84/05 8/10The workman has only filed his affidavit, which replicates his statement of claim and hence, cannot be considered as sufficient evidence in view of the case law titled as Range Forest Officer Vs. S.T. Hadimani II (2002) SLT, 154.
AR for the workman has raised a contention that since the management did not produce the Attendance register or the payment register in the court an adverse view is liable to be taken against the management. This contention made by A.R for the workman cannot be sustained in light of observation made in the case titled as Manager, Reserve Bank of India Vs. S. Munj & Ors., (2005) 5 SCC 100, wherein Hon'ble Supreme Court of India held that an adverse inference can be drawn against the management for non production of the register or the other relevant documents only if the management is asked to produce the same but fails to produce the same.
In light of the foregoing observation both issues No.1 & 2 are decided in favour of the management and against the workman.
(B) FINDINGS ON ISSUE NO.3 "Whether the services of the workman were terminated illegally and/or unjustifiably ?
The onus to prove this issue was on the workman but as observed while deciding issues no.1 & 2, the workman has failed to prove that he had worked with the management for 240 days in the year preceding to 16.10.2003, i.e the date of his alleged termination from the service ; hence, issue no.3 is decided against the workman.
ID No : 84/05 9/10(D) RELIEF IN TERMS OF REFERENCE:
In view of the above observations, the only conclusion that can be drawn is that the workman is not entitled to any relief. Hence, a no relief award is passed and the reference is answered accordingly.
A copy of the same be sent to the appropriate Government for its publications as per rules.
ANNOUNCED IN THE OPEN COURT (ILLA RAWAT)
On 9th February, 2015 POLCV:KKD:DELHI
ID No : 84/05 10/10