Delhi District Court
Lir No.4341/16, Smt. Radha Kalotra Etc. vs . Army Wives Welfare Association on 8 February, 2021
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IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER
LABOUR COURTS, ROUSE AVENUE COURTS, NEW DELHI
INDUSTRIAL DISPUTE BETWEEN :
LIR No.4341/16
1. Smt. Radha Kalotra ( Since Deceased) ( Through LRs)
.....LR's of Deceased Worklady No:1
2. Smt. Asha Devi W/o Sh. amar Bahadur
R/o H No:P2, R.R. Hospital, Dhaula Kuan,
Delhi Cantt, Delhi110010 .....Worklady No:2
Versus
Army Wives Welfare Association
& Vocational Institute Women Hostel,
Rao Tula Ram Marg, Opposite Signals
Enclave, Delhi Cantt, Delhi110010 .....Management
Date of receipt of reference : 22082012
Date of Arguments : 08022021
Date of Award : 08022021
AWARD
1. The Deputy Labour Commissioner ( South West), vide its order
No.F.24(119)/12/SWD/Lab./36013604, dated 22062012 referred the present
industrial dispute of workladies Smt. Radha Kalotra and Smt. Asha Devi with the
above mentioned management to the Labour Court with the following terms of
reference:
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association
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"Whether the services of Smt. Radha Kalotra W/o Sh. Nafe Kalotra, Smt.
Asha Devi W/o Sh. Amar Bahadur have been illegally and/or unjustifiably
terminated by the management; and if so, to what relief are they entitled ?"
2. VERSION OF THE CLAIMANTS AS PER THE CLAIM:
Notice of the reference was issued to the Workladies and she have filed the
Statement of Claim. Brief facts, as stated in the statement of claim, are that the Smt.
Radha Kalotra was working under the management regularly since 05041994 and
Smt. Asha Devi was working regularly since 02101998. Both the workladies were
working as Aya under the management in the Women Hostel. The last drawn salaries
of the workladies were Rs.7254/ in the month of October, 2011. No legal facilities
were being provided to the Workladies till date, despite their repeated demands, as
averred in the statement of claim. It is stated that both the Workladies were working
very honestly and sincerely under the management. It is stated that in order to avail the
legal facilities from the management both the Workladies joined the Delhi General
Majdoor Front (Regd) which resulted into the termination of their services by the
management but on the intervention of the Labour Office the management has assured
and promised to provide the workmen all services benefits demanded by them and from
the month of October, 2011 the management has provided the minimum wages to the
Workladies as Rs.7254/ but same was also not as per the notification of the Delhi
Government and their wages were lower then the minimum wages Act. However, the
Workladies were not satisfied and demanded the minimum wages arrears as per law
from April, 2011 to September, 2011 and other benefits but the management became
adamant and came with heavy handed on the Workladies and terminated the services of
the Workladies on 13022012 onwards.
3. The Workladies stated to have filed a complaint in the office of Assistant
Labour Commissioner but management did not appear there nor reinstated the
Workladies. Thereafter, Workladies stated to have sent a registered notice dt. 1802
2012 to the management which was stated to have been duly served uponn the
management but no reply was given by the management to the said notice.
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association
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4. It is averred by Workladies that thereafter they have filed a claim before the
Labour Conciliation Officer for their reinstatement of duties with full back wages but
management did not join conciliation proceedings, hence the present reference has been
made by the Labour Office to the Labour Court.
5. It is alleged that the termination of the Workladies by the Management is illegal.
The Workladies have claimed relief of reinstatement with full back wages or any other
relief as this court deems fit.
6. VERSION OF THE MANAGMEENT AS PER THEIR WRITTEN
STATEMENT (WS):
7. Notice of the statement of claim was issued to the Managements. Management
has filed the written statement. In its written statement it is stated by management
that claim of the workmen is totally misconceived baseless, frivolous and is an abuse
of the process of law. It is stated that AWWA take the help of voluntary workers for
maintenance and upkeep of facilities and institution, as and when required basis and
individuals engaged in such activities are paid honorarium for their help or the work
performed by them. It is submitted that in the vacations of the institution, same is
closed, and the management do not take any activity and there is no maintenance work
done. It is stated that the workmen used to came on their own will to perform the
maintenance work and were paid honorarium and they are not regular workers, they
were called as and when required. It is stated by the management in its written
statement that AWWA is an NGO engaged in welfare activities for serving and retired
soldiers, their families and differently abled children and AWWA is not an industry
under the Industrial Dispute Act and the present claim petition of the workmen is not
maintainable. It is submitted that the present workmen were never employed by the
management, rather, they themselves on their own use to come for work as and when
required and they were paid honorarium for the work done, therefore, there is no
question of reinstatement of the alleged workmen arises. It is further stated that
workmen were never employed by the management and there is no contract like this
between them. It is submitted that whenever the workmen were called for work, they
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association
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instead of doing work, created disturbance in the institute and management started
receiving complaints against the workmen, and on this the management tried to make
them understand but to no avail, therefore, the management has left with no option but
not to allow them to give them work. It is stated that some of the workmen who used
to work in the same institute has vide letter dt. 09072012 narrated about the acts and
working of the management. It is submitted that there is no employment agreement or
regular employment given to such workers. It is further submitted that the workmen
before filing the present claim are under obligation to produce their appointment letter
to show that they have worked for 240 days in a years with the management. It is
stated that the case of the present alleged workmen is similar to that of a daily wager
who cannot sail in the same boat of regular employees. It is denied by the management
that the workmen were working with them as regular employees since the date and
salary as mentioned in the statement of claim. It is also denied that the management has
ever agreed to provide all legal facilities to the workmen as alleged by them in
statement of claim. It is further denied that the workmen were working with
management as regular employees as alleged or that they were working honestly or
sincerely with the management. The management has denied all other allegations of the
workmen. It is also denied that the services of the workmen have been terminated by
the management illegally as alleged by the workmen in their statement of claim. It is
stated that the claim of the workmen is false and fabricated. Management prayed for
dismissal of the claim of the workmen with exemplary costs.
8. REJOINDER BY THE CLAIMANTS
9. . In the rejoinder to the written statement the workmen have reiterated the
averments of the statement of claim and controverted the averments made by the
management in its written statement.
10. FRAMING OF THE ISSUES:
11. From the pleadings of the parties the following issues were framed for trial on
08042013:
(1) Whether there existed any relationship of employer and employee
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association
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between the parties ? OPW
(2) Whether the claimant completed 240 days of service in the year
preceding her alleged termination ? OPW
(3) Whether the management is not an industry u/s 2(j) of the ID Act ?
OPW
(4) As per terms of reference.
(5) Relief
12. EVIDENCE OF THE CLAIMANTS:
The worklady Smt. Radha Kalotra (Now deceased) has examined herself as
WW1 and filed her evidenciary affidavit which has been Ex.WW1/A bearing her
signature at point A and B. WW1/Worklady has reiterated the whole averments made
by her in her statement of claim. She has relied upon the documents Ex. WW1/1 to Ex.
Ex. WW1/10. Ex. WW1/1 : Copy of complaint dt. 12082011 to the Assistant Labour
Officer regarding non implementation of minimum wage. Ex. WW1/2 is Inspector
report dt. 22102012. Ex. WW1/3 Copy of general demand notice dt. 12082011
given to the management. Ex. WW1//A and Ex. WW1/3B. Copies of its postal receipts
are. Ex. WW1/4 Copy of General demand notice dt. 01092011. Ex. WW1/4A and
Ex.WW1/4B. its postal receipts. Ex. WW1/5. Copy of complaint dt. 14022012 given
to Assistant Labour Commissioner regarding illegal termination of workman. Ex.
WW1/6 Copy of demand notice dt. 18022012 given to the management for
reinstatement. Ex. WW1/7. Statement of claim filed before the Conciliation Officer. is
Ex. WW1/8 Copy of Inspector report dt. 22102012. WW1/9 (2 pages collectively).
Copy of fee charges taken by the management from the restaurant is Ex. WW1/10.
Original Identity Card of workman is WW1/11. WW1/worklady has been cross
examined on 17052016.
13. The worklady Smt. Asha Devi has also examined herself as WW2 and filed her
evidenciary affidavit which has been Ex.WW2/A bearing her signature at point A and
B. WW1/Worklady has reiterated the whole averments made by her in her statement of
claim. She has relied upon the documents Ex. WW2/1 and Ex. WW2/2. Ex.WW2/1 is
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association
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the Identity card of WW2 Smt. Asha Devi and Ex.WW2/2 is certificate dt. 04032005
issued by the management to her. WW2/worklady has been cross examined by Sh.
Jitesh Pandey, AR of the management on 06062017.
14. No other witness was examined by the workladies and their AR Sh. Shankar
Dayal has closed their evidence on 06062017 itself.
15. EVIDENCE OF THE MANAGMENT:
The management has examined Sh. Lt. Col. Dinesh Kumar (Retd.), Addl Dir,
AWWA, Welfare Complex, Room No:210, South Block, New Delhi110011 as MW1,
who has filed his evidence by way of affidavit Ex.MW1/1 bearing his signature at
point A and B. He has relied upon all the documents exhibited in his affidavit which are
exhibited as Ex.MW1/A (Certified copy seen and returned) and Ex.MW1/B (OSR).
Copy of order of Central Information Commission dt. 18032009 is Ex. Mw1/A and
copy of Memorandum of society Revised is Ex. MW1/B.
16. The management did not examine any other witness and Sh. Manish Arora, AR
of the management closed the evidence of the management on 12032020 itself.
17. I have heard the final argument on behalf of claimant. No written submissions
filed on behalf of the management despite repeateed directions to the management.
Perused the records. My findings on the issues are as under:
18. Whether the management is not an industry u/s 2(j) of the ID Act ? OPW
Section 2 (j) of the Industrial Disputes Act, 1947[2] can be divided into two
components. The first component enumerates as the statutory meaning of 'industry'; the
second component provides as to what does an industry includes within its definition.
This definition is not exhaustive and cannot be treated as restricted in any sense has
therefore been subjected to immense judicial scrutiny. The landmark judgement is the
Bangalore Water Supply case, enlarged the definition to a large extent and overruled
case precedents which were a part of narrow interpretation, that is to say, before the
Bangalore Water Supply case:
clubs[Cricket club of India v Bombay Labour Union (1969 AIR 276)],
hospitals[Management of Safdarjung Hospital v. Kuldip Singh (AIR 1970 SC
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association
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1406); Dhanrajgiri Hospital v. Workmen (AIR 1975 SC 2032)]
universities [University of Delhi Vs. Ram Nath (1963 AIR 1873)]
solicitor firms[National Union of Commercial Employees v. M.R. Meher (AIR
1962 SC 1080) ; Osmania University v Industrial Tribunal Hyderabad (AIR
1960 AP 388)]
government departmentswere excluded from the definition of industry but after
the Bangalore judgement they have been declared as industry.
The triple test of the Bangalore case forms the quintessential part of the
amended definition of industry in 1982. The triple test provides that systematic
activities organized by cooperation between employer and employees for the production
of goods and services calculated to satisfy human wants and wishes would constitute
industry. However, this test was subjected to exceptions, namely, industry does not
include spiritual or religious services; absence of profit motive or gainful objective is
irrelevant (although an organisation will not cease to be a trade or business because of
philanthropy animating the undertaking).
The main test is the nature of activity with emphasis of employeremployee
relationship therefore all organized activities that satisfy the triple test will constitute
industry including undertakings, callings and services, adventures' analogous to the
carrying on of trade or business. Thus, professions, clubs, educational institutions,
cooperatives, research institutes, charitable projects and other kindred adventures will
not be exempted from Section 2(j) of the Act, 1947 provided the triple test is fulfilled.
19. The Apex Court also enunciated the dominant nature criterion or test according
to which a limited category of professions, clubs, cooperatives little research labs, and
even gurukulas may qualify for exemption if substantively no employees are hired but
only in minimal matters some marginal employees are hired without disturbing the non
employee character of the unit. Also, lawyers volunteering to run a free legal services
clinic or doctors serving in their spare hours in a free medical centre or if such services
are supplied at a nominal cost and the those who serve are not paid remuneration based
on master servant relationship then such an institution would not constitute industry
even if servants, manual or technical, are hired.
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association
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20. In the case of Physical Research Laboratory CASE it was held that a research
institute, of the Government department, was not an industry although it carried out
systematic activities with the help of employees but did not produce or distribute
services to satisfy human wants and therefore there was absence of commercial motive.
Also, the Apex Court has held that the Bangalore case is the law of the land and the
proposed amendment is not binding yet (as it has not been enforced) therefore the
Telecommunication Department of the Government is an 'industry' because it is
engaged in a commercial activity and do not discharge any of the sovereign functions of
the State. Similarly, the functions which are carried on by All India Radio and
Doordarshan cannot be said to be confined to sovereign functions as they carry on
commercial activity for profit by getting commercial advertisements telecast i.e. except
the sovereign function all other activities of employers would be covered within the
sweep of term 'industry' as defined under Section 2(j) of the Act, 1947.
21. It is asserted by the management in its written statement that AWWA is an NGO
engaged in welfare activities for serving and retired soldiers, their families and
differently abled children and AWWA is not an industry under the Industrial Dispute
Act. Merely being an NGO will not decide whether the managementherein is an
industry or not. One needs to evaluate the nature and function of the management.
Looking into the nature and function of the managementherein the relevant portion of
the crossexamination of the witness MW1 suggests:
"...I have not personally recruited the workman. She was appointed by the
Manager so I cannot say whether workman was told that respondent is a NGO....
...In our hostel only the children of defence personnel are residing who were studying in different colleges in Delhi and whose parents are posted out of Delhi. We are charging amount for boarding and lodging, mess from the occupantschildren. It is correct that AWWA is running shops for welfare purposes in the army area. It is incorrect to suggest that consumer goods are being sold from said shops. ...It is incorrect to suggest that AWWA is covered under the definition of industry as per I.D. Act. It is incorrect to suggest that AWWA shops are involved in the commercial LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 9 activities. It is incorrect to suggest that AWWA hostel in which the workmanherein was engaged as a daily worker is involved in the commercial activities. It is incorrect to suggest that our hostel is not functioning as per the provisions of Societies of Registration Act, 1860. It is incorrect to suggest that said hotel is being run on profit sharing basis."
22. Admittedly the occupants were charged for their accommodation, boarding and lodging. Even if it was on "noprofit" basis the management does fall within the purview of the "industry" as per the definition under the I.D. Act. In "Sunni Muslim Wakf Committee vs Abbasali Gulamali" reported in (1980) 2 GLR 253 the Hon'ble Gujarat High Court:
"It would be necessary to remember that "industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, includes "business." Unless, therefore, there is something repugnant in the application of these testes for the purpose of determining whether a particular activity is business or not, we see no reason why those tests should not be applied. In our opinion, if an employer is carrying on a systematic activity, if there is cooperation between the employer and his employees and if there is production of goods or services, it would amount to business. Applying these triple tests, we are of the opinion that inasmuch as the committee runs hostels, a technical institute and a training institute, it carries on a systematic activity. For the purpose of carrying on those activities, it employs a number of persons. Therefore, those activities are carried on by the petitioner committee on account of the cooperation between it and its employees."
23. The Issue No.3 (regarding the managementAWWA falling under definition of industry) is thus decided in favour of the workladies and against the management AWWA.
24. Issue No.1: Whether there existed any relationship of employer and employee between the parties? OPW The case of the workladiesherein is that Smt. Radha Kalotra was working under the management regularly since 05041994 and Smt. Asha Devi was working regularly LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 10 since 02101998. Both the workladies were working as Aya under the management in the Women Hostel. The last drawn salaries of the workladies were Rs.7254/ in the month of October, 2011. No legal facilities were being provided to the Workladies till date, despite their repeated demands, as averred in the statement of claim. In order to avail the legal facilities from the management both the Workladies joined the Delhi General Majdoor Front (Regd) which resulted into the termination of their services by the management but on the intervention of the Labour Office the management had assured and promised to provide the workmen all services benefits demanded by them and from the month of October, 2011 the management has provided the minimum wages to the Workladies as Rs.7254/ but same was also not as per the notification of the Delhi Government and their wages were lower then the minimum wages Act. However, the Workladies were not satisfied and demanded the minimum wages arrears as per law from April, 2011 to September, 2011 and other benefits but the management became adamant and came with heavy handed on the Workladies and terminated the services of the Workladies on 13022012 onwards.
25. The worklady Smt. Radha Kaltra examined as witness WW1 stated in her crossexamination :
"I was not issued any appointment letter. I used to mark my attendance in the register kept in the office. After some days, the management did not allow me to mark attendance. Earlier, the management used to pay the salary by way of voucher after obtaining my signature on revenue stamp. After some time, the management used to pay salary after obtaining my signatures on blank papers. The idea of revenue stamp was dispensed with. It is correct that I have filed copy of attendance register and remuneration register. I have filed documents to prove that I have worked for 240 days in every year for service. ..."
26. The relevant portion of the crossexamination of the WW2 (Mrs. Asha) reveals:
"It is wrong to suggest that during the entire tenure of my employment, I worked for only 203 hours a day. .... I do not have any other document except the documents on record that I have worked for 240 days in each calendar year. .... It is LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 11 correct that the management never issued any termination letter to me. .... It is wrong to suggest that I virtually abandoned my job in the month of February, 2012 (Vol. Management did not allow me to enter the premises."
27. The original Identity Card bearing No. 219 of the worklady Smt. Radha Kalotra (Ex.WW1/10) reveals that it was a permanent Identity Card for the entire course of the employment and the same was renewable on half yearly basis and sometimes on monthly basis. The said Identity Card clearly mentions the designation of the worklady as 'Aya' , AWWA Hostel. The renewal dates as sown in the said Ex.WW1/10 Identity Card are 2nd June 2010 to 31st Dec. 2010, 1st Jan. 2011 to 31st May 2011, 1st June 2011 to 31st June 2011 and 7th June 2011 to 31st Dec. 2011. The abovesaid dates of renewal show a continuity of employment.
28. As for the worklady Mrs. Asha her Identity Card bearing No. 229 (Ex.WW2/1) reveals that it was a permanent Identity Card for the entire course of the employment and the same was renewable on half yearly basis and sometimes on monthly basis. The said Identity Card clearly mentions the designation of the worklady as 'Aya' , AWWA Hostel. The renewal dates as sown in the said Ex.WW1/10 Identity Card are 12 th July 2010 to 31st Dec. 2010, 1st Jan. 2011 to 31st May 2011, 1st June 2011 to 31st Dec. 2011. The abovesaid dates of renewal show a continuity of employment.
29. The certificate document Ex. WW2/2 is the certificate dated 4 th March 2005 which states on the letter head of AWWA Col. S. Sharma, VSM (Retd.) Staff Officer:
"Certified that Smt. Asha, Aya in AWWA Women Hostel is very honest, extremely hard working worker."
30. It was held in the judgment titled Automobile Association Upper India Vs. P.O. Labour Court II & Anr. 130 (2006) DLT 160, Delhi High Court, in which it was inter alia held that:
"engagement and appointment of the workman in service can be established either by direct evidence like existence and production of appointment letter or written agreement, or by circumstantial evidence of incidental and ancillary records, in nature of attendance register, salary registers, leave record, deposit of PF contribution, ESI LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 12 etc. or even by examination of coworkers and this onus can be discharged by evidence of the coworker who may depose before the Court that the workman was working with the management."
31. In "Bank of Baroda Vs. Ghemarabhai Harjibhai Rabari", {2005(10) SCC 792} the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case, it would be the responsibility of the Management to rebut the same. In that case even though the workman had no letter of appointment, he had established that he had worked with the Management. He was claiming to have been working as a driver of the bank and could produce vouchers, which showed that he was paid certain sums towards wages and that the amount had been debited to the account of the bank. With such evidence being produced, the Supreme Court held that the onus has shifted to the bank, which was then responsible to show that despite such payment, there was no relationship of employer and employee between the parties.
32. The vehement stress of the management on the 'honorarium' aspect in order to escape from the liability (towards the workladies under the law) does not help because as per law the 'honorarium' is also counted as wages. As per S.2(gg)(rr) I.D. Act "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles;
(iii) any travelling concession;
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(iv) any commission payable on the promotion of sales or business or both;]
33. Thus the employeremployee relations are not affected by the term 'honorarium'.
34. Now coming to the document / record part of the case. The employeremployee relationship depends on the documents maintained by the management. In the present case the witness MW1 had admitted that the documents / records were destroyed by the management after three years and the documents in the present case were also destroyed. The wordings of the witness M W1 in his crossexamination are:
"We do not keep any old record with respect of workman who were working on daily basis. It is correct that we were not giving such record to the workman, as it was not required. Our hostel in which workmanherein was engaged on daily basis is located within the Army campus. It is correct that security personnel are deployed at the gate of army campus. We used to give Identity card to the workmanherein for entering the army campus for work. Out hostel in which the workmanherein was engaged as a daily worker are closed during vacations. We are not maintaining any record for issue of identity card to the workmanherein, however, the workman used to return the same after expiry or take it with himself. Our said hostel is still in operation."
35. The witness MW1 further admitted that no documents/ records were given to the daily wagers. The law has put the responsibility on the shoulders of the employer to maintain the records of employees like attendance register, wages register etc. The workman has not been made statutorily liable for preparation or maintenance of such records. Thus the workman is in a very precarious situation when he has to produce evidence to prove his employment with a person with whom he has been adversely placed in the litigation and it is the employer who is seized of the records. But this proposition has to be taken with a pinch of salt due to its inherent tendency to propagate a mischief. While banking upon such a proposition a caveat must be kept in mind. The propounder has to be wary that indiscriminate use of such proposition would create a vested interest and the possibility of its misuse cannot be overruled. There would be LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 14 situation when a person would claim himself to be an employee of a certain employer and that employer would be called upon to prove the negative. Thus various facets of the evidence have to be seen and the Court must look for corroboration. The entire context and evidence of the case has to be assessed and appreciated to get a complete picture. The principles of 'shifting of onus' takes care of avoiding this situation (of not proving the negative) and will apply only when the primary onus is discharged by the employee. The juncture of drawing 'adverse inference' will after such shifting of onus when the management is unable to explain its position. The law regarding drawing of adverse inferences has been laid down in section 114 illustration (g) of the Evidence Act, 1872 which reads as under:
"The evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
36. Though the provisions of the Evidence Act, 1872 are strictly not applicable to an industrial adjudication, the recourse to the same can be had in the nature of guidelines and by appreciating the founding principles of the provision. The genesis of this provision is on sound reasoning. It has its root in fairplay and justice. Courts should not feel handicapped in its solemn task of administration of justice by deprivation of evidence. If a person is in possession of certain evidence, he is bound to produce the same so that a just and fair adjudication results. It is the duty of all concerned to assist the law courts to enable them to achieve this end. Witnesses and evidences are eyes and ears of the Courts. If a party is not acting fairly or playing hide and seek with the justice dispensation system, the system should not feel handicap or helpless. In appropriate cases the negative marks be given such a party by drawing adverse inference.
37. In the present case the workladyherein has been able to discharge their primary onus of proof and the same shifted to the management. However, the management could not discharge their 'shifted onus'.
38. The managementherein seems to be frivolous. The witness MW1 has not been able to sight any rule / regulation etc. which allowed the managementAWWA to destroy documents / papers of the daily wagers worklady herein. Thus a presumption LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 15 of adverse inference can be drawn against the managementAWWA. The management AWWA is run by the retired / serving personals of the armed forces thus a degree of discipline in sticking to norms for maintaining records / documents expected. However, the managementAWWA seems to have terribly failed in its duty to maintain the documents. These books are required by the law of income tax, labour law etc. to be in the possession of the assessee they are supposed to be in the custody, control and power of the management.
39. Thus the nonproduction of these records establish without doubt that had the record been produced it would not have suited the defence pleaded by the management or would have proved the case of the workman. The wheel has come full circle and the management has made room for drawing adverse inference against it. Thus an adverse inference is accordingly drawn against the management.
40. Taking a cumulative assessment of the oral evidence of the workman, honorarium aspect of the wages coupled with the fact that the adverse inference drawn against the management (of not being able to cite the relevant provisions of any norm / ruler regarding the act of destroying the records more than 3years old) the finding on the issue no. 1 is returned in favour of the workman and against the management thereby holding that there exists relationship of employer and employee between the parties.
41. Thus the ISSUE No.1 relating to employeremployee relation is decided in favour of the worklady and against the managementAWWA.
42. Issue No.2: Whether the claimant completed 240 days of service in the year preceding her alleged termination ? OPW The Issues No.1 has already been decided in favour of the workladies thus the Issue No.2 seems to be already been decided in favour of the workladies. However, a further discussion on the mode of appointment would suffice.
43. The original Identity Card bearing No. 219 of the worklady Smt. Radha Kalotra (Ex.WW1/10) reveals that it was a permanent Identity Card for the entire course of the employment and the same was renewable on half yearly basis and sometimes on LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 16 monthly basis. The said Identity Card clearly mentions the designation of the worklady as 'Aya' , AWWA Hostel. The renewal dates as sown in the said Ex.WW1/10 Identity Card are 2nd June 2010 to 31st Dec. 2010, 1st Jan. 2011 to 31st May 2011, 1st June 2011 to 31st June 2011, 7th June 2011 to 31st Dec. 2011. The abovesaid dates of renewal show a continuity of employment.
44. As for the worklady Mrs. Asha her Identity Card bearing No. 229 (Ex.WW2/1) reveals that it was a permanent Identity Card for the entire course of the employment and the same was renewable on half yearly basis and sometimes on monthly basis. The said Identity Card clearly mentions the designation of the worklady as 'Aya' , AWWA Hostel. The renewal dates as sown in the said Ex.WW1/10 Identity Card are 12 th July 2010 to 31st Dec. 2010, 1st Jan. 2011 to 31st May 2011, 1st June 2011 to 31st Dec. 2011. The abovesaid dates of renewal show a continuity of employment.
45. The defence of the managementAWWA in the WS is that that AWWA takes the help of voluntary workers for maintenance and upkeep of facilities and institution, on 'as and when' required basis and individuals engaged in such activities are paid 'honorarium' for their help or the work performed by them. It is stated that the workmen used to came on their own will to perform the maintenance work and were paid honorarium and they are not regular workers, they were called as and when required. Regarding the status of the workladies herein the witness MW1 has stated that they were appointed on 'as an when' required basis and were paid honorarium according to the minimum wages after the complaint was filed by the workmen in that regard. The relevant portions of the crossexamination is :
"....I have not personally recruited the workman. She was appointed by the Manager so I cannot say whether workman was told that respondent is a NGO. However, she was not appointed but she was engaged as a daily voluntary workers and she used to come whenever the work is available and go back after finishing the work. We get audit of the accounts of the AWWA. .......Since I was not directly engaging the workman on daily basis, I cannot say how the workman would come to know about the availability of the work with AWWA on particular day. Some other LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 17 persons were engaging them for said job. We were not paying any salary to the workman but we were paying the amount to the workman on daily basis. I will have to check up how much amount we were paying to the workman on daily basis."
As regards the details of the daily wages the witness MW1 admitted that the workladies were treated and paid as "daily wagers". The managementwitness MW1 further stated "I will have to check up whether we the audit report of the period when the workman was engaged as a daily worker by AWWA."
46. The cross examination of MW1 was deferred for want of documents and remaining cross examination of MW1 was carried out on 12032020 which is as under: "I have not brought the audit report as the same is not available. We destroy the old documents which are more than three years old. I will have to see whether any record pertaining to destruction of such documents maintain in our office."
".....It is wrong to suggest that I have not brought the audit report knowingly or intentionally. Our hostel is in 24 hours operation. We are also keeping staff to look after residents of hostel for 24 hours. The Manager, who had appointed the workman is being appointed by the management. Col. Bali was/ is the Manager, who is looking after the said hostel. The concerned person visit the Labour department / court, as per requirement. I do not remember whether I visited the office of Asstt. Labour Commissioner, South West Distt., Delhi in connection with the complaints filed by the worker. It is correct that workman was paid as per minimum wages. I do not remember whether we had received the demand notice which was sent by workman, as the matter is old. Now, we have outsourced the workers. I have not brought any record to prove that which agency has been given the job to supply manpower. I also do not remember the name of such outsource agency. It is wrong to suggest that being the employee of the management, I have not stated true facts in my affidavit."
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 18
47. As per the crossexamination of the witness MW1:
"I know the contents of my affidavit Ex.MW1/1. Same was prepared on my instructions by our AR. I have not filed on record such as my appointment letter as Additional Director of AWWA, however, I have brought my Identity Card in which my post as a Joint Director AWWA is mentioned. It is correct that after filing of the complaint by the workman we started paying the minimum wages to her. I am working in the AWWA for the last about 1516 years. .........I have mentioned that workmanherein was not working upto the satisfaction of the occupants of the hostel. Since workmanherein was on daily wages we have not issued any warning letter in this regard to her.
Now we have outsourced for men power to run daily work. Today I have not brought any document to prove that we have outsourced for men power to run daily work, however, I can produce the same, if so required. I am pensioner from the army being a retired officer. ......I will have to check up whether we the audit report of the period when the workman was engaged as a daily worker by AWWA. I will have to check up how much amount we were paying to the workman on daily basis.
48. The adverse inference regarding the employeremployee relation has already been drawn against the management for the admission of MW1 that the records of 3years were destroyed by the management. MW1 did not cite any rule / norm regarding such destruction of records. Now the issue of the wrokladies serving at least 240 days in the preceding year immediately rom the date of their termination (from service) is also a matter of documentation / records maintained by the managementAWWA. The witness MW1 has already admitted in his crossexamination: "We do not keep any old record with respect of workman who were working on daily basis. It is correct that we were not giving such record to the workman, as it was not required."
49. The Hon'ble Gujarat High Court observed thus in " {a bunch of Special CIVIL APPLICATIONS No. 4993 of 2009 etc. decided on 8th March 2010} observed:
10. The question of burden of proof would lose its importance when the question LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 19 of onus of proof is taken up for consideration. In a given case, the basic burden may be upon a particular party and if the party does all what is required under the law, then the basic burden would stand discharged and the burden would be shifted upon the other side to disprove what has been said by the first party.
It cannot be disputed nor can be argued that the official records are always available with the Department. A workman, if appears in the Court, enters the dock and makes a statement on oath that he had worked for 240 days in a year and the statement is not denied by the other side, or not controverted either, then the said statement can be taken to be correct. In the present matter, the workmen did work for 240 days and if that be so, the burden shifted and the burden was on the other side to disprove the allegations made by the workman. The best of the evidence would be the records which are regularly maintained by the Department.
The Department cannot be allowed to say that even if the basic burden was discharged, they were not required to produce the records which they possessed. If the best evidence is kept back or is not produced in the Court, then the Court would be justified in drawing an adverse inference against the party which could produce the best evidence in the Court."
50. The apex Court in "R.M. Yellatty vs. Assistant Executive Engineer (SCC p. 106, para 17) (3Judges Bench judgment in Appeal (civil) 5124 of 2004 decided on 7 th Nov. 2005) has laid stress on the need of the documents (muster roll etc.) {regarding the 240 days 'continuous service'} to be produced by the management in case of the 'daily wages' workers. The Apex court further stressed on the 'adverse inference' to be drawn if the management failed to produce the said documents. It was held:
"17.....However, applying general principles and on reading the [aforesaid] judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of dailywaged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 20 payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
(emphasis by me)
51. Referring to the abovequoted part of the judgment in R.M. Yellatty case the Hon'ble Gujarat High Court observed thus in " {a bunch of Special CIVIL APPLICATIONS No. 4993 of 2009 etc. decided on 8th March 2010} "17. Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service.
13. In view of above observations made by Apex Court and considering recent legal position and in absence of evidence from employer side, the evidence of workman must have to be accepted and on that basis if 240 days continuous service is established preceding 12 months form the date of termination and Section 25F has not been complied then Labour Court is having jurisdiction and powers to grant appropriate relief considering the facts and circumstances of each case."
52. The workladies herein have adduced sufficient evidence. The management has destroyed the resords and an adverse inference has to be drawn agaist the management. The proved docments shows the employment of more than a year.
53. It is a settled law that even if the 240 days of continuous are not proved by the workman the benefit of S.25G and S.25H of the I.D. Act would still be available to the workman. The distinction between Sections 25F and 25G of the Act was reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar (2006) 13 SCC 28, in the following LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 21 words:
"15. We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25F of the Act applies on the one hand, and a situation where Section 25G thereof applies on the other. Whereas in a case where Section 25F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25G and 25H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, Samishta Dube v. City Board, Etawah, SBI v. Rakesh Kumar Tewari and Jaipur Development Authority v. Ram Sahai."
54. The MW1 has admitted in crossexamination:
"Now we have outsourced for men power to run daily work. Today I have not brought any document to prove that we have outsourced for men power to run daily work, however, I can produce the same, if so required. I am pensioner from the army being a retired officer. ......I will have to check up whether we the audit report of the period when the workman was engaged as a daily worker by AWWA. I will have to check up how much amount we were paying to the workman on daily basis"
The nonadherence of S.25H is clear from the aspect that outsourcing was done for the jobs which were offered by the workladiesherein.
55. This issue No.2 regarding 240days of continuous service is decided in favour of the workladies and against the managementAWWA.
56. ISSUE No.4 : As per terms of reference.
The Issues No.1,2&3 stands decided in decided in favour of the workladies and against the managementAWWA.
57. As per WS of the management whenever the workmen were called for work, they instead of doing work, created disturbance in the institute and management started receiving complaints against the workmen, and on this the management tried to make them understand but to no avail, therefore, the management has left with no option but not to allow them to give them work.
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 22
58. The managementAWWA has not offered any explanation to the aspect of the termination of the services of the workladies. The only admitted portion of the cross examination of MW1 reveals:
".........I have mentioned that workmanherein was not working upto the satisfaction of the occupants of the hostel. Since workmanherein was on daily wages we have not issued any warning letter in this regard to her."
59. The admitted position of the management is that no formal or informal probe was made as to the alleged misbehaviour of the workladies herein. Thus the management was not justified in discontinuing / disengaging the workladies. Not allowing the workman to work and not assigning any duty tantamount to "deemed termination" from the service. Undoubtedly, the termination of the services of the work ladies herein are unjustified / illegal in the eyes of law.
60. Thus this ISSUE No.4 is decided in favour of the workladies and against the managementAWWA.
61. Relief The workmanherein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits.
AS far as worklady Smt. Radha Kalotra is concerned, she is since deceased thus reinstatement is not possible. The other worklady Mrs. Asha has mentioned in her crossexamination;
"I have applied for services in various establishments, but could not get any. Ir is correct that from 2012 till today I have never applied in writing or approached for job in any establishment / institute.(Vol. I had gone to various residential accommodations / Kothis for job.). My husband workds as Mali and his monthly income earning is about Rs.80001000/....."
The workmanherein is entitled to the relief. However, in the given facts and circumstances the compensation in lieu of reinstatement would serve the purpose of justice. In the case of BSNL vs. Man Singh (2012) 1 SCC 558, the Apex Court has held that when the termination is set aside because of violation of Section 25F of the LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 23 Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer & Anr. vs. Shankar Shetty (2010) 9 SCC 126, it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 23 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.
In Hari Nandan Prasad vs Employer I/R To Mangmt.Of F.C.I. {CIVIL APPEAL Nos.24172418 /2014 decided on 17 February, 2014} it has been held thus:
"It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25 F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
The ISSUES No. 5 is also decided in favour of the workladies and against the management.
In the facts and circumstances of the case compensation in lieu of reinstatement would serve the purpose of justice. The management is directed to LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 24 pay Rs.3,00,000/ (Rupees Three Lakh) each to the workladiesherein. That goes to say that the managementherein is directed to pay:
(i) Rs.3,00,000/ (Rupees Three Lakh) to the LR's of Late Smt. Radha Kalotra.
(2) Rs.3,00,000/ (Rupees Three Lakh) to Mrs. Asha Devi
62. Reference is answered as per the relief granted. Matter Disposed of Accordingly.
A copy of the award be uploaded on the website of RADC. A copy of the same be also delivered to both the parties as well as to the concerned Department through electronic mode or through Dak, if possible. File be consigned to Record Room.
63. Announced as per the advisory / orders of the Hon'ble High Court vide its order/letter No.R235/RG/DHC/2020 DATED 16052020 and the Amended Protocol Letter No:24/DJ/RADC.2020 dated 07052020 of Ld. District & Sessions JudgeCum Special Judge (PCAct),CBI, Rouse Avenue District Courts, New Delhi.
Announced through Video Converencing.
Dated:08022021
( VEENA RANI )
Digitally signed
by VEENA Presiding Officer Labour Court
VEENA RANI
Rouse Avenue Courts,New Delhi
RANI Date:
2021.02.19
15:39:32 +0530
Judge Code : DL0271
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association 25 IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURTS, ROUSE AVENUE COURTS, NEW DELHI INDUSTRIAL DISPUTE BETWEEN : LIR No.4341/16 ( New) Smt. Radha Kalotra ( Since Deceased) ( Through LRs) & Smt. Asha Devi .....Workladies Versus Army Wives Welfare Association .....Management 08022021 Present : Sh. Shankar Dayal, AR of the workman.
None for the management.
Despite opportunities the management did not file written submissions.
Award is passed sepatately in favour of the workmen. Reference is answered as per the relief granted. Matter Disposed of Accordingly. A copy of the award be uploaded on the website of RADC. A copy of the same be also delivered to both the parties as well as to the concerned Department through electronic mode or through Dak, if possible. File be consigned to Record Room.
Digitally signed by VEENAAnnounced in the open court. VEENA RANI
Dated:08022021
RANI Date:
2021.02.19
15:39:22 +0530
( VEENA RANI )
Presiding Officer Labour Court
Rouse Avenue Courts,New Delhi
Judge Code : DL0271
LIR No.4341/16, Smt. Radha Kalotra etc. Vs. Army Wives Welfare Association