Delhi District Court
Sunil Kumar vs Karnataka on 6 July, 2007
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IN THE COURT OF S.K. SHARMA
PRESIDING OFFICER LABOUR COURT-X :
KARKARDOOMA, DELHI.
Ref. No. : F.24(1178/97-Lab.
Dated : 3.7.1997
I.D. No. : 912/97
Between
The Management of
M/s Sylvania And Laxman Ltd.
68/1-3, Najafgarh Road,
New Delhi-15.
&
Its workmen S/Sh.
1.Sunil Kumar
2.Suraj Prasad
3.Daya Nand Singh
4.Satpal
5.Sadhu Tadu
6.Inder Pal Singh
7.Manmohan Saini
Date of Institution of the case : 23.10.97
Date on which reserved for Award : 29.5.07
Date on which Award is passed : 06.7.2007
(Note : Courts were closed
w.e.f. 3.6.07 to 1.7.07)
AWARD
The above mentioned workmen raised an
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industrial dispute regarding the termination of their
services by the management of M/s Sylvania And
Laxman Ltd. The appropriate Govt. on being satisfied
regarding the existence of Industrial Dispute between
the parties, made a reference for adjudication. The said
reference is as under:
"Whether the services of S/Shri
Sunil Kumar, Suraj Prasad, Daya
Nand Singh, Satpal, Sadhu Tadu,
Inder Pal Singh and Manmohan
Saini have been terminated
illegally and/ or unjustifiably by
the management, and if so, to
what relief are they entitled and
what directions are necessary in
this respect ?"
Thereafter, the workmen filed statement of
claim. It is stated by the workmen namely Sunil Kumar,
Suraj Prasad, Daya Nand, Satpal, Sadhu Tadu, and
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Inderpal in the statement of claim that they were
employed with the management as ' Helper/Storeman'
in the year 1994 and they were getting salary was Rs.
1547/- each per month. It is stated in the statement of
claim that the workman Manmohan Saini was working
with the management since January 1995 as " Machine-
man" and he was getting salary of Rs. 1547/- per
month. It is also stated by the workmen in their
statement of claim that they performed their duties
sincerely and honestly. It is also stated in the statement
of claim by the workmen that on 7.3.1996 when they
reported for duty, they ere not allowed to enter into the
factory premises by the management and they were told
by the management verbally that their services were
terminated. It is stated by the workmen in their
statement of claim that the management did not give
any notice of termination and the retrenchment
compensation was not paid to them. It is also stated by
the workmen that no chargesheet was ever given to them
before their termination. It is also stated in the
statement of claim by the workmen that on 7.3.1996
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the management made a complaint to the Labour Deptt.
about the illegal termination of service of 59 employees
including them and in pursuant to that complaint, the
Labour Inspector made enquires from the management
and the management has taken a false plea before the
Labour Inspector stating that the workmen were badli
workers and due to lack of production and non-
availability of raw material, the services of 59 workers
including the workmen were not required. It is stated by
the workman in the statement of claim that the
management was called upon by the Deputy Labour
Commissioner alongwith the records but the
management intentionally did not appear. It is stated in
the statement of claim by the workmen that they were
not badli workers and they have worked for more than
240 days without any break.
The notice was issued to the management. The
management put appearance and filed W.S. In its W.S.
the management has denied the version of the workmen
stating that the contents of his statement of claim are
wrong. It is stated in the W.S. that there is no employer
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employee relationship between the claimants and
management. The management also denied that the
claimants worked 240 days in a year preceding the date
of their alleged termination.
On 4.4..2002, my Ld. Predecessor framed the
following issues :
1. Whether there exists no relationship of employee and
employer between the parties ?
2. As in terms of reference.
Thereafter, on 2.12.2003 an application was
filed on behalf of the management for amendment in
the Written Statement. Vide order dated 11.3.2004, the
application of the management was allowed by my Ld.
Predecessor.
Thereafter, the management filed its amended
Written Statement wherein it raised preliminary
objections that the claimants are not the workmen as
defined under the provisions of Industrial Dispute Act,
1947 and there is no relationship of employer and
employee between the parties. It is stated in the
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amended W.S. that the claimants were employed with
the management as purely badli workers whenever
regular workers were absent.
The workmen filed rejoinder wherein they
denied the averments made by the management in the
amended W.S. and reiterated their averments as made
in their statement of claim.
On 29.4.2004, my Ld. Predecessor framed the
following issues :
1.Whether there exists no relationship of employer and
employee between the parties?
2.As per terms of reference.
An Additional Issue was also framed by my Ld.
Predecessor on the amended Written Statement,
which is as under :
1. Whether the claimant is a Baldi worker ? If so, to
what effect.
In order to prove their case, out of the seven
workmen, only three workmen namely Sh. Sunil
Kumar, Sh. Sat Pal and Sh.Inder Pal have examined
themselves as WW1, WW2 and WW3. They filed their
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affidavits as Ex. WW1/A, Ex. WW2/A and Ex. WW3/A,
wherein they supported their case as mentioned in the
statement of claim. The statement of workman Satpal
(WW2) cannot be read in evidence as his examination in
chief was recorded on 19.4.2003 and thereafter, he has
not appeared in the court for his cross examination
after 19.4.2003. The other workmen have not led any
evidence in support of its case.
The management in order to prove its version
has examined one Sh. S.L. Gulati as MW1, who filed
his affidavit Ex. MW1 in support of his evidence
wherein, he has supported the case of the management
as mentioned in the Written Statement. It is stated by
MW1 Sh. S.L. Gulati in his affidavit Ex. MW1/A that the
claimants were engaged as badlies on daily wages as
casual workers as and when required. MW1 Sh. S.L.
Gulati has also stated in his affidavit that the claimants
have not worked continously for 240 days in a year
preceding the date of their alleged termination.
I have heard Ld. ARs for the parties. I have
also perused the file and the case law relied upon by the
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parties.
My findings on the issues are as under :
Issue No. : 1 & Addl. Issue NO.1
For the sake of convenience, as both the issues
are inter-related are being taken up together.
The case of the workmen is that they were
employed with the management and their services were
terminated by the management illegally and without
any reason. Out of the seven workmen, only three
workmen namely Sh. Sunil Kumar, Sh. Sat Pal and Sh.
Inder Pal have examined themselves as WW1, WW2 and
WW3. They filed their affidavits as Ex. WW1/A, Ex.
WW12/A and Ex. WW3/A, wherein they supported their
case as mentioned in the statement of claim. The
statement of workman Satpal (WW2) cannot be read in
evidence as his examination in chief was recorded on
19.4.2003 and thereafter, he has not appeared in the
court for his cross examination after 19.4.2003.
On the other hand, the case of the management
is that there is no employer and employee relationship
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between the parties. The stand of the management is
that the claimants were employed as badli workers as
and when required. The onus to prove that the claimants
were badli workers lies upon th4e management. In
order to support its contention, the management has
examined MW1 Sh.S.L. Gulati, who has filed his affidavit
Ex. MW1/A wherein, he has supported the case of the
management. He has stated in his affidavit that the
claimants were engaged as badlies on daily wages as
casual workers as and when required. The case of the
workman are that they were employed with the
management as regular employees.
It was submitted by Ld. AR for the management
that the claimants were badli workers and they were not
regular workers of the management, so they do not
come within the definition of Section 2(s) of the
Industrial Dispute Act 1947.
It is important to note that the management did
not lead any evidence to show that the claimants were
engaged for which particular period as badli workers.
The management also did not lead any evidence nor
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disclosed the names of the persons and against whom
the claimants were engaged as badli workers.
Now, the question is that whether the
claimants were workers within the definition of Section-2
(s) Industrial Dispute Act 1947. Ld. AR for the workman
has relied upon the judgment of the Hon'ble Karnatka
High Court in a case titled as Hutchiah Vs. Karnataka
State Road Transport Corporation reported as " 1983 I
LLJ-30" wherein it has held as under:
" The definition of the word"
workman" given in S.2(s), without
causing the least violence to the
language used, is susceptible of
only one meaning that every
person employed in an industry,
irrespective of his status -
temporary, permanent or
probationary----would be a
workman. Once it is established
that the Corporation is an
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industry, as defined in S.2(j), the
essential condition of a person
being a workman within the term
of the definition is that he should
be employed to do work in that
industry, that there should be, in
other words, an employment of his
by the employer and that should
be relationship between the
employer and him, as between an
employer and an employee or
master and servant."
As discussed above, MW1 Shri S. L. Gulati has
stated in his affidavit that the claimants were engaged as
badlies on daily wages as casual workers. So, in view of
the above referred judgments, I am of the view that the
claimants are workers as defined in S.2(s) of Industrial
Dispute Act 1947. Accordingly, it is proved that the
claimants were employed with the management.So, both
the Issues are decided accordingly.
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Issue No. 2
The case of the workmen namely Sunil Kumar,
Suraj Prasad, Daya Nand, Satpal, Sandhu Tadu, and
Inderpal are that they were employed with the
management as ' Helper/Storeman' and the workman
Man Mohan Saini wasemployed with the management as
" Machine-man ".
On the other hand, the case of the
management is that the claimants were badlies on daily
wages as casual workers and they did not complete 240
days in a year preceding the date of their alleged
termination.
The Hon'ble Supreme Court of India in a case
reported as " 2006 LLR-250 " has held as under :
"Industrial Disputes Act, 1947 -
Sections 25B & 25F - Continuous
service of one year and non-
payment of retrenchment
compensation at the time of
termination- Requirement of 240
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days of continuous service -
Burden to prove is upon workman
to adduce evidence to prove the
said factum- Evidence relied
upon- In this case the workman
did not establish that he has
worked for 240 days in the
preceding 12 calender months-
Hence, benefit of section 25F is
not available to respondent/
workman- Award of the Labour Court and the judgment of the High Court in awarding reinstatement set aside."
The Hon'ble Supreme Court of India in a case titled as Range Forest Officer Vs. S.T. Hadimani reported as " 2002 LLR-2 " has held as under :
"Termination of Service--
Workman claimed he had worked
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for 240 days and services
terminated without paying
retrenchment compensation--
Appellant denied respondent
workman worked for 240 days-
Held. Tribunal not right to placing onus on appellant Management without first determining that respondent workman had worked for 240 days in preceding year--
Claimant has to lead evidence as it is his own statement. Award of Tribunal set aside "
The Hon'ble Supreme Court of India in a case titled as Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another reported as " 2004 LLJ- 832 " has held as under :
"Industrial Disputes Act, 1947 - Sections 25-F, 25-G and & 25-H - 15 Claim of daily wage workman to have worked for more than 240 days in concerned year --None-
production of muster roll by employer for certain period, held, not sufficient to infer work for 240 days, as claimed."
As discussed above, in the present case, out of the seven workmen, only three workmen namely Sh. Sunil Kumar, Sh. Sat Pal and Sh. Inder Pal have examined themselves as WW1, WW2 and WW3. They filed their affidavits as Ex. WW1/A, Ex. WW12/A and Ex. WW3/A, wherein they supported their case as mentioned in the statement of claim. The statement of workman Satpal (WW2) cannot be read in evidence as his examination in chief was recorded on 19.4.2003 and thereafter, he has not been appeared in the court for his cross examination after 19.4.2003.
The two workman namely Sunil Kumar and Inderpal have filed their affidavits stating therein that 16 they were employed with the management as helper/storekeeper.
The Hon'ble Supreme Court in a case reported as " 2004 (103) FLR-192 " has held as under :
"Industrial Disputes Act, 1947 -
Section 25-F, 25-G and 25-H-
Termination/ disengagement of
workman- Challenge to-On ground that he had worked for more than 240 days in the previous year-And termination was without compliance of provisions of section 25-F, 25-G and 25-H- Held,mere filing of an affidavit and giving his own statement before Labour Court to said effect- Not enough evidence to prove said fact. "17
Therefore, from the above referred judgment, it is clear that mere filing of affidavit by the workmen in support of their case, is not sufficient to prove that they have worked for 240 days in a year preceding the date of their alleged termination.
The workmen have filed documents Ex. WW1/1 to Ex. WW1/14. Ex. WW1/1 to Ex. WW1/7 are the copies of ESI Cards. The address of the management is not mentioned in the ESIC cards. The address mentioned on the said cards are different from the address of the answering management. It is also important to note that the name of the employer/management is not mentioned on the said ESIC cards. the workman did not lead any evidence to show that the said cards pertains to the answering management.
The perusal of the file further shows that there is cutting over the date of the appointment of the claimants in ESIC Cards. The said cutting does not bear the signatures of any person . So, under these 18 circumstances, the the date of appointment also becomes doubtful.
Document Ex. WW1/8 is a letter written to the Labour Commissioner by the Union. Document Ex. WW1/9 is a letter written to the Asstt. Labour Commissioner by Shri K.M. Dwivedi Manager Admn. & Legal . Ex. WW1/10 is a letter sent to the management by Asstt. Labour Commissioner. Document Ex. WW1/11 is a letter written to the workman Sunil Kumar by Asstt. Labour Commissioner. Ex. WW1/12 is the demand notice sent to the management by the workmen, Document Ex. WW1/13 is the receipt of the demand notice Ex. WW1/12 sent to the management. Document Ex. WW1/14 is a letter sent to the workmen by the management. The workman have also not filed any salary certificate or attendance record etc. Therefore, it is clear that the workmen have not filed any document as mentioned in the judgments referred above.
Therefore, in view of the above discussion, I am of the considered view that the workmen have failed to prove that they have worked with the management for 19 240 days in a year preceding the date of their alleged termination.
In view of the judgments '' 2006 LLR-250'' ( Supra), '' 2004 LLJ-832 '' ( Supra) and '' 2004(103 FLR-192 '' (Supra), I am of the view that the workmen have failed to prove that their services were terminated illegally by the management. The other workmen namely Suraj Prasad, Daya Nand Singh, Sadhu Tadu and Manmohan Saini have not led any evidence in support of their case, so they are also not entitled to any relief.
The workman Satpal examined in chief and his cross examination was deferred and thereafter he has not turned up for his cross examination, therefore, his income statement cannot be read in evidence. Therefore,it is clear that none of the workman has proved that their services were terminated illegally by the management in violation of 25-F of Industrial Dispute Act 1947. Hence, none of the workman is entitleld to any relief.
Reference is answered accordingly and the 20 Award is passed. The Ahlmad is directed to send the Six copies of this Award to the appropriate Govt. The file be consigned to record room.
Announced in open Court on 6th July ' 2007.
(S.K. Sharma) Presiding Officer Labour Court-X Karkardooma Courts, Delhi.