Delhi District Court
I) M.C. D. vs . Ram Kumar & Anr. 2002 Llr 1171 on 24 February, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 119/2000
B E T W E E N
The workman Sh. Ashok Kumar Sharma
C/o Sh. Vishwa Nath Sharma
TypeIII/13, ScheduleB,
President Estate,
New Delhi.
A N D
The Management of M/s Mrignaini Emporium,
B8, Baba Kharag Singh Marg,
New Delhi.
Ref.: F.(5505)/99Lab./658286 dated 21.2.2000.
A W A R D
1. Workman Sh. Ashok Kumar Sharma raised an
industrial dispute against his illegal termination from services,
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which was referred to this court for adjudication by the
Secretary (Labour), Government of National Capital Territory
of Delhi, in the following terms of reference :
"Whether the services of Sh. Ashok Kumar Sharma
have been terminated illegally and/or unjustifiably
by the management, and if so, to what relief is he
entitled and what directions are necessary in this
respect?"
2. Brief facts of the case as made out from the record
are that the workman was working as packer with the
management with effect from 1.7.96. However, no appointment
letter was given to him despite his repeated demands. It is
alleged that on 1.11.97, Deputy Chief Manager of the
management Sh. F.H. Shakeel ordered the workman to serve his
friends at his residence but he protested against this as it
became a practice as he was being used as domestic servant and
ultimately he refused this as he was employed to perform work
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at the office of management only. It is claimed that due to this
refusal, management became annoyed and he was ordered not to
enter its office with effect from 2.12.97 and his services were,
as such, illegally terminated. The workman repeatedly
approached the management seeking his employment but to no
use. Thereafter, the workman filed a civil suit but the same had
to be withdrawn on the advice of the advocate. The workman
served a demand notice on the management vide letter dated
4.8.99 but to no use. Thereafter, workman raised an industrial
dispute before the conciliation officer but the same could not be
settled and ultimately came to be referred to this court in the
above terms of reference. It is claimed that the workman is
unemployed since the date of his termination. It is prayed that
since his termination is illegal, management may be directed to
reinstate him with all consequential benefits including continuity
of service and full back wages.
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3. Management contested the claim and filed its
written statement contending that there is no relationship of
workman and employer between the parties as he was never
employed by Mrig Nayani Madhya Pradesh Government
Emporium. He was only engaged by Madhya Pradesh Pavilion,
Pragati Maidan on daily rates for the purposes of cleaning and
other allied work. It was a temporary employment as the
Madhya Pradesh Pavilion is not permanent establishment in
Pragati Maidan and it was to be opened during the trade fair in
1996 only. Workman was paid wages for his work on daily rate
basis and he served only for one hundred thirty days from 1.7.96
to November, 1996 and he was paid wages by the government
of Madya Pradesh. After trade fair of November, 1996 ended,
his services were disengaged. However, Madhya Pradesh
Laghu Udyog decided to open a temporary outlet of Mrig
Nayani Emporium on trial basis at Pragati Maidan and he was
again engaged afresh in Mrig Nayani Emporium Extension
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Counter on daily basis. That counter was opened in Pragati
Maidan but it was not found viable and, as such, the same was
closed in November, 1997. The extension counter was opened
on 19.12.96 and was closed in November, 1997. After the
closure of the extension counter, the services of the workman
were automatically disengaged. It is repeatedly claimed that
there is no relationship of workman and employer between the
parties and in any case, he had not worked for two hundred forty
days either with the management or with Madhya Pradesh
Pavilion. It is denied that he was working honestly and
sincerely and had unblemished record of service. It is also
denied that Mr. F.H. Shakeel asked him to work at his residence.
Other allegations contained in the statement of claim have also
been denied and it is repeatedly claimed that the claim is false
and the same may be dismissed.
4. Workman filed rejoinder to the written statement,
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wherein he denied the allegations contained in the written
statement and reasserted the averments made in the statement of
claim.
5. On the pleadings of the parties, following issues
were settled for trial by my learned predecessor vide orders
dated 22.3.2001 :
I) Whether there is no employer and employee
relationship between the parties?
II) As per terms of reference.
6. In support of his case workman has examined
himself as WW1, and has placed on record his own affidavit
Ex.WW1/A, along with documents Ex.WW1/1 to 5.
7. Workman has also examined another witness Sh.
Munna Lal as WW2, who has also deposed about the
employment of the workman with the management.
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8. On the other hand, management has examined Sh.
R.P. Singh as MW1, who has placed on record his affidavit
Ex.MW1/A, along with documents Ex.MW1/1 and 2.
9. I have heard the arguments at the bar and have
carefully gone through the file.
10. My findings on the issues are as under :
ISSUES NO.1 & 2:
11. Both issues shall be disposed of together as they
are interconnected.
12. It is submitted by learned authorized representative
(Ld. AR) for the workman that the workman was employed by
the management with effect from 1.7.96 to 2.12.97 as packer. It
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is submitted that he has been terminated illegally as he refused
to work as domestic help at the residence of a senior officer. It
is repeatedly claimed by him that his termination is illegal and
unlawful. Written submissions have also been placed on record
by the workman, copy of which has been supplied to the
management. My attention has been invited to the following
authorities :
I) M.C. D. Vs. Ram Kumar & Anr. 2002 LLR 1171
II) Statesman Ltd. & Anr. Eighth Industrial
Tribunal, West Bengal & Ors. 2005 LLR 198
III) Nagar Mahpalika (Now Municipal Corpn.) Vs.
State of U.P. & Ors. 2006 LLR 764
IV) Management of M/s Brahmaputra Board Vs.
Ashok Kumar & Anr. 2006 LLR 672
V) Jaipur Development Authority & Anr. Vs.
Mahesh Kumar & Anr. 2006 LLR 1154
13. On the other hand, Ld. AR for the management
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submitted that workman was never employed by the
management and he was an employee of Madhya Pradesh
Pavilion and not of the management, that is, Mrig Nayani
Emporium. It is also submitted by him that in any case, he was
appointed only for a specific work and specific period, that is,
for the period of trade fair for the year 1996 and when the trade
fair was over, his employment automatically came to an end.
My attention has been invited to the crossexamination of the
workman, wherein he admitted that the services of employees
automatically came to end after the conclusion of trade fair.
My attention has been invited to the following authorities :
I) Himanshu Kumar Vidyarthi Vs. State of Bihar
1997 IV AD SC 196
II) Ajay Kumar Sharma Vs. Presiding Officer,
Labour Court No. VI, Tis Hazari & Anr. 133
(2006) DLT 24
14. Section 25 B of the Industrial Disputes Act
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(hereinafter to be referred as the 'Act') defines "continuous
service" as under :
"Definition of continuous service - For
the purpose of this chapter
(1) a workman shall be said to be
in continuous service for a period if he is,
for that period, in uninterrupted service,
including service which may be interrupted
on account of sickness or authorised leave
or an accident or a strike which is not
illegal, or a lockout or a cessation of work
which is not due to any fault on the part of
the workman;
(2) where a workman is not in
continuous service within the meaning of
clause (1) for a period of one year or six
months, he shall be deemed to be in
continuous service under an employer
(a) for a period of one year, if the
workman during a period of twelve
calendar months preceding the date with
reference to which calculation is to be
made, has actually worked under the
employer for not less than
.......................................................................
.....................................................................
(ii) two hundred and forty days, in
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any other case;
...................................................................... ....................................................................."
15. Section 25 F of the Act, provides conditions to be complied with at the time of retrenchment of a workman and lays down as under : "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
(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 : 11 : (RC) is served on the appropriate Government for such authority as may be specified by the appropriate Government by notification in the Official Gazette"
16. Section 2(oo) of the Act defines "retrenchment" 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 nonrenewal 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"
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17. In an authority reported as S.M. Nilajkar & Ors.
Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27, Hon'ble Supreme Court dealt with the question of workmen appointed against a project or scheme and observed in paragraphs 12 & 14 as under : "12. "Retrenchment" in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well settled that Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term "retrenchment" a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term "retrenchment", and therefore, termination of service of a workman so long as it is attributable to the act of the : 13 : (RC) employer would fall within the meaning of "retrenchment" dehors the reason for termination. To be excepted from within the meaning of "retrenchment" the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within categories (a), (b), (bb) and (c) would fall within the meaning of "retrenchment.
14. The engagement of a workman as a daily wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto the occurrence of some event, and therefore, the workman ought to know that his employment was short lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of the employer his employment was coming, to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the : 14 : (RC) employer to prove the above said ingredients so as to attract the applicability of subclause (bb) above said. In the case at hand, the respondent employer has failed in alleging and proving the ingredients of sub clause (bb) as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or dailywagers in a project. For want of proof attracting applicability of subclause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
18. It is a settled proposition of law that the burden of proving his employment with the management is upon the workman and in this regard his own affidavit is of no use as it contains his own selfserving statement. There must be some reliable documentary evidence in support of his claim of employment with the management. In this regard, I am fortified by an authority reported as Range Forest Officer Vs. S.T. Hadimani 2002 (3) SCC 25, wherein Hon'ble Supreme Court observed as under: : 15 : (RC) "2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10.8.1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat Vs. Pratamsingh Narsin Parmar (2001) 9 SCC
713. In our opinion the Tribunal was 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 : 16 : (RC) 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. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."
19. Similarly, in another authority reported as Manager, RBI, Bangalore Vs. S. Mani & Ors. 2005 LLR 737, Hon'ble Supreme Court dealt with evidence regarding the employment of the workman with the management and observed in paragraph 18 as under : : 17 : (RC) "Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore not correct to contend that the plea raised by the respondents herein that they have worked continuously for 240 days was deemed to have been admitted by applying the doctrine of nontraverse. In any event the contention of the respondents having been denied and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the Union dated 30th May, 1988 and 11th April, 1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved particularly in view of the fact that the contents thereof were not proved by any witness. Only by reason of nonresponse to such letters, the content thereof would not stand admitted. The evidence Act does not say so."
20. In the instant case, the workman has claimed that he worked with the management with effect from 1.7.96 to : 18 : (RC) 2.12.97. However, the workman has not placed on record any documentary evidence regarding his employment with the management showing that he was employed by M/s Mrig Nayani Emporium and for how much period. There is absolutely no documentary evidence regarding his employment with the management and to the effect that he worked continuously with the management for a period of two hundred forty days immediately preceding the date of his termination, as is clear from the law referred to above that a statement of workman in evidence is his selfserving statement in his own favour and does not prove his employment with the management. Similarly, nonreply to the demand notice or non production of documents by the management also does not prove his employment. In this regard, I am fortified by an authority reported as Surendranagar District Panchayat V. Dahyabhaiamarsinh (2005) 8 SCC 750, wherein Hon'ble Supreme Court observed in paragraph 18 as under : : 19 : (RC) "................................................................. ................................................................... The courts below have wrongly drawn an adverse inference for nonproduction of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workman respondent is not entitled for the protection of compliance of section 25F of the Act before his service was terminated by the employer. As regards noncompliance of Sections 25G and 25H suffice is to say that witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so : 20 : (RC) called seniority no relief could be given to him for noncompliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."
21. Management has claimed that he worked with Madhya Pradesh Pavilion and that too only for one hundred thirty days. As such, it is clear that management is denying both his employment as well as period of employment. If a workman does not complete two hundred forty days of continuous employment with the management, he is not entitled to the protection of section 25 F of the Act. It is also claimed by the management that he was employed only for a specific period and for specific job, that is, only for the purpose of trade fair held in 1996.
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22. In these circumstances, when there is clear denial by the management regarding his employment as well as tenure of employment, it was incumbent upon the workman to place some documentary evidence on record in rebuttal but there is no documentary evidence on record regarding the employment of the workman with the management. As such, the workman has failed to prove relationship of workman and employer between the parties. He has also failed to prove his employment for two hundred forty days with the management. Accordingly, the workman is not entitled to any relief. Both issues are decided in favour of management and against the workman.
23. The reference is answered in the above terms and award is passed accordingly. Six copies of the award be sent to the appropriate government. File be consigned to record room.
Dated : 24.2.2007 (O.P. SAINI)
PRESIDING OFFICER, LABOUR
COURT NO. VII, DELHI.
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