Delhi District Court
Between The vs The on 8 December, 2011
IN THE COURT OF DR. SHAHABUDDIN, PRESIDING OFFICER, LABOUR
COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 54/08
Unique Case ID No. 02402C0227402008
BETWEEN THE WORKMAN
Sh. Khushi Ram Maurya, S/o Sh. Sahib Din Maurya, R/o S134/310,
Harijan Camp, (Behind Shop no. 33), Mehar Chand Market, Lodhi Colony,
Delhi 3.
AND THE MANAGEMENTS OF
1.M/s. Rukmini Devi Public School, CD Block, Pitampur, Delhi 34.
2. The Management of (Society Running the Rukmini Devi Public School) Under the control M/s. Seth Pokhar Mal Educational Society (Regd.), CD Block, Pitampura, Delhi 110034.
3. The Directorate of Education Through its Director, Govt. of NCT of Delhi, Old Secretariate, Delhi 54.
Date of Institution : 27.03.2008
Date on which award reserved : 03.12.2011
Date of passing of award : 08.12.2011
AWARD
1. The workman has directly filed his statement of claim before this court u/s 10(4A) of Industrial Disputes Act, 1947, (in short ID Act) as applicable to Delhi.
2. The main facts as mentioned in the statement of claim of the workman are to the effect that he had been employed with the management nos. 1 and 2 on 01.07.2005 at the post of 'Technician (Sound & Light) at the monthly salary of RS. 8000/ and his last drawn salary was Rs. 8500/ per month; that he was not issued any warnings, charge sheet etc. during his employment with the management; that his work and conduct was entirely satisfactory and management always appreciated his work and conduct during his service tenure; that management no. 1 and 2 did not provide legal facilities to him as per Delhi School Education Act and as per its rules; that he was also not ID NO. 54/08 Page 1 of 8 provided various legal facilities as per Delhi Shops and Establishment Act, 1954 r/w other relevant provisions of Industrial Disputes Act, 1947 such as HRA, CCA, DA, DP, Medical Facilities, LTC, Children education Allowance, Conveyance allowance, leaves, EL, CL, Sick leave etc.; that he had been demanding various such facilities from management including benefits of 5th Pay Commission from management nos. 1 and 2 but his request was not allowed by these managements; that while working with management nos. 1 and 2 on 12.07.2007, he met with severe spinal pain and went to Safdarjang Hospital, New Delhi on 13.07.2007 for his treatment; that he informed the managements about such happening on 16.10.2007 and filed leave application which was duly sanctioned by the school management; that when he again presented himself for duty as usual on 28.11.2007 in the school, the management concerned did not take him back on duty and said that his services were no more required in the school; that ultimately his services were terminated by the management concerned illegally w.e.f. 13.12.2007 afternoon without any justified reasons. Lastly, a prayer was made for his reinstatement with back wages and other benefits as per law.
3. None appeared on behalf of the management no. 3 despite service and written statement was also not filed on behalf of the management no. 3 despite sufficient time given and hence, the management no. 3 was proceeded exparte as per order of this court dated 23.04.2008.
4. The averments of the statement of claim have been strongly opposed in the joint written statement (in short W/S) filed on behalf of the management nos. 1 and 2. It is clarified at this stage that there is primarily one management in this case namely Rukmini Devi Public School run by an educational society namely M/s. Pokhar Mal Educational Society and hence only one management by the name of M/s. Rukimini Devi Public School to be considered as main management in this matter hereinafter and hence it is clarified at this stage.
5. It has been mentioned in this WS, interalia, that the claimant herein ID NO. 54/08 Page 2 of 8 was not a 'workman' as defined under section 2(s) of Industrial Disputes Act, 1947 (in short I.D. Act) but he was working in Supervisory capacity; that he has not come before this court with clean hands; that his services were never terminated by any of these managements; that he himself started absenting from his duties w.e.f. 29.11.2007 without any intimation to the management concerned; that he was on a monthly retainership fee of Rs. 8000/ per month and was performing purely Supervisory duties; that he never informed the management about his alleged illness nor filed any leave application form and hence, the question of sanctioning of any leaves in his favour by the management does not arise; that he earlier absented from his duties w.e.f. 15.10.2007 to 20.11.2007 without any intimation to the management; that he came to school on 21.11.2007 stating that he was sick during the period w.e.f. 15.10.2007 to 21.11.2007; that he was asked to submit medical certificate and fitness certificate in this regard but he did not submit such certificates and again joined duties with the management w.e.f. 21.11.2007 and continued to work in the management school till 28.11.2007; that he again started absenting from his duties w.e.f. 29.11.2007 without any prior permission of the management and without any prior intimation to the management; that whatever was due to him till he actually worked with the management, the same was paid to him as per rules; that there was nothing due to him against the management, as alleged; that his retainership contract was terminated w.e.f. 13.12.2011 as per terms and conditions of his retainership contract with management dated 06.05.2005. Lastly, a prayer was made to dismiss his statement of claim.
6. In the rejoinder filed to WS of management, averments made in the statement of claim of the workman were reiterated and those made in the WS of the management were denied.
7. On the basis of the pleadings of the parties, following issues were framed on 03.09.2008: ID NO. 54/08 Page 3 of 8
1. Whether the claimant was appointed as a workman in the capacity of technician at the monthly salary of Rs. 8000/ per month? OPW
2. Whether services of the claimant were terminated illegally and/or unjustifiably by the management? OPW
3. Whether the claimant has not approached this court with clean hands? OPM
4. Whether the claimant continuously absented from his duties without any prior information and sanction of the management? OPM
5. Relief, if any ?
8. From the side of the workman, he himself examined as WW1 and also filed his affidavit Ex. WW1/A on record and then evidence of the workman was closed.
9. From the side of the management, MW1 Sh. Daya Ram Goel was examined who also filed his affidavit Ex. MW1/A on record and then evidence of the management was also closed.
10. Oral final arguments were heard from both sides which, to my considered view, were almost the repetitions of averments of pleadings of both sides on record.
11. I perused the entire judicial file minutely and my issue wise decision is as under.
ISSUE NO. 1 :
12. In my considered opinion, the primary burden of proof of this issue was upon the workman. In coming to this conclusion, I find support from an important judgment of Hon'ble Delhi High Court given in the case of UCO Bank vs. Presiding Officer & Another 1999 V AD (Delhi) 514. In para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that principles regarding burden of proof are stipulated in Chapter VII of Indian Evidence Act, 1872 (in short Evidence Act) and that Sections 101 to 114 A of Evidence Act were relevant on his aspect and the Hon'ble Delhi High Court further held in this judgment that General Principal, which is laid down in these Sections, particularly under Sections 101 and 102 of Evidence Act was that he who asserts must prove ID NO. 54/08 Page 4 of 8 i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court to establish the existence or non existence of a fact contended to by a party. It was further held in his judgment that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof.
13. On this point, I further find support from an important judgment of Hon'ble Allahabad High Court given in the case of Canara Bank vs. Union of India & Ors. 1998 Lab.I.C. 2923 (Allahabad High Court). The Hon'ble High Court held in para 11 of this judgment to the effect that section 101 of Evidence Act postulates that whoever desires any court to give judgment as to any legal right and liability dependent on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of Section 102, 103 and 106 of the Evidence Act pertaining to burden of proof in such like cases.
14. Now turning to the evidence of workman himself on record pertaining to this issue, he admitted in his crossexamination, interalia, to the effect that he was appointed on 01.07.2005; that he did not submit any application prior to his appointment; that it was correct that Ex. WW1/M1 was copy of his diploma certificate dated 10.06.2003; that it was correct that he was given letter dated 06.05.2005 Ex. WW1/M4 on record bearing his signatures at point A; that it was correct that Ex. WW1/M5 bearing his signatures at point A was an undertaking given by him to management and accordingly he joined duties with management on 01.07.2005. I have seen these documents on record. As per Ex. WW1/M4, the claimant herein was clearly retained with the management school w.e.f. 01.07.2005 on monthly retainership fee of Rs. 8000/ per month for professional services of the claimant. It is also written clearly ID NO. 54/08 Page 5 of 8 in Ex. WW1/M4 that the claimant herein was not entitled to any benefits available to regular/permanent members of the management staff. Vide Ex. WW1/M5, the claimant herein joined the duties with the management w.e.f. 01.07.2005 at the post of Technician. Vide document Ex. WW1/M6 dated 04.05.2006 on record, written by management to the claimant herein, it is clearly mentioned that he will be paid monthly retainership fee of Rs. 8500/ p.m. instead of Rs. 8000/ p.m. w.e.f. 01.07.2006 till further orders and it was also mentioned that other terms and conditions of the retainership will remain the same as mentioned in letter dated 06.05.2005.
15. I have also seen documents put by the workman on record in support of his case mainly as Ex. WW1/1 to WW1/17. In my considered opinion, none of these documents establishes the fact on record that the claimant herein was really appointed by management as a 'workman' in the capacity of Technician at the monthly salary of Rs. 8000/ per month. In view of the above mentioned discussion coupled with own admissions of the workman in this crossexamination to the above effect and further coupled with entire material on record, I am of the considered view that the workman has miserably failed to satisfy this court that he was really working as a 'workman' with the management as defined u/s 2(s) of I.D. Act at monthly salary of Rs. 8000/ per month. Hence, this issue is decided against the workman and in favour of the management. ISSUE NO. 2 :
16. In my further considered view, the primary burden of proof of this issue was also upon the workman. In coming to this conclusion, I again find support from judgments of Hon'ble Delhi High Court given in the case of UCO Bank (Supra) and of Hon'ble Allahabad High Court given in the case of Canara Bank (Supra).
17. During the course of crossexamination of claimant herein, he denied the suggestion that he absented from his duties deliberately w.e.f. 29.11.2007 without any prior permission of the management and without ID NO. 54/08 Page 6 of 8 giving prior intimation of the same to the management but to my considered view, he has not put any cogent evidence on record in support of this denial. The management has strongly contended that the claimant herein himself absented from his duties w.e.f. 29.11.2007 without any prior intimation to the management and without any prior permission of the management and that he absented earlier also on regular basis which ultimately rebutted into termination of his retainership contract with the management. MW1 Sh. Daya Ram Goel has also deposed to this effect and in my considered opinion, there is no substantial rebuttal of his testimony on this point from the side of the workman by way of any cogent evidence, either oral or documentary.
18. In view of the above mentioned discussion, coupled with entire oral as well as documentary evidence on record, I am of the considered view that the claimant himself started absenting from his duties without any prior intimation to the management and without prior sanction of any leaves from the management and hence, the question does not arise about the termination of his services illegally by the management, as alleged. In other words, the claimant himself abandoned his job with the management instead of termination of his services illegally by the management, as alleged. Consequently, the workman has miserably failed to prove this issue also in his favour by way of any cogent evidence, either oral or documentary. Hence, this issue is also decided against the workman and in favour of the management.
ISSUE NO. 3:
19. In my considered opinion, the primary burden of proof of this issue was upon the management. In my further considered view, the management has not put any cogent evidence on record to satisfy this court that the claimant did not approach this court with clean hands. Hence, this issue is decided against the management and in favour of workman.
ID NO. 54/08 Page 7 of 8ISSUE NO. 4:
20. As already mentioned while discussing issue no. 2 to the above effect and based on the entire material on record, I am of the considered view that the claimant herein continuously absented from his duties without any prior information and without any prior sanction of leaves in his favour by the management. Accordingly, this issue is also decided against the workman and in favour of the management. ISSUE NO. 5 : Relief:
21. In view of the findings of this court on issue nos. 1, 2 and 4 to the above effect, I am of the considered opinion that the workman is not entitled to any relief in this matter. An award is passed to the above effect against the workman and in favour of the management.
22. A copy of this Award be sent to the Deputy Labour Commissioner, Govt. of NCT of Delhi of Distt./Area Concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court today (DR. SHAHABUDDIN)
i.e. on 08.12.2011 Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi
ID NO. 54/08 Page 8 of 8