Delhi District Court
Ravi Kumar vs M/S. Printland Digital India Pvt. Ltd on 8 January, 2025
IN THE COURT OF MS. ARCHANA BENIWAL,
DISTRICT JUDGE/ POLC-V,
ROUSE AVENUE COURT COMPLEX,
NEW DELHI
CNR No. DLCT13-008113-2019
LIR No : 3155/19
In the matter of :
Sh. Ravi Kumar,
S/o Sh. Lakhami Singh,
Mobile No. 9971488795,
R/o B-2/46, J.J. Colony,
Madanpur Khadar, New Delhi.
...Workman/Claimant
Versus
M/s Printland Digital (India) Pvt. Ltd.,
B-53, Okhla Indl. Area, Ph.-I,
New Delhi-110020.
......Management.
Date of Institution : 12.12.2019
Date of decision : 08.01.2025
JUDGMENT
PART-A REFERENCE The Deputy Labour Commissioner, Govt of NCT, Delhi while exercising his power U/s 10 (1) (c) and 12 (5) of the Industrial LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
1/17Disputes Act, 1947, (hereinafter referred to as 'the Act'), vide letter no. No.F24(592)/Lab./SD/2019/23072, dated 25.09.2019 has sent the following reference to this court for adjudication :-
"Whether the services of Sh. Ravi Kumar S/o Lakhami Singh, Aged-33 Years (Mobile No.-9971488795) have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled to and what directions are necessary in this respect?"
PART-B STATEMENT OF CLAIM
1. It is submitted by workman in his statement of claim that he was working with the management since 01.04.2017 as 'Field Boy' and his last drawn wages were Rs.11,000/- per month. It is further claimed that he was working diligently and honestly and that he gave no cause for complaint to the management.
2. It is further claimed that the management did not provide him any legal and statutory benefits such as appointment letter, minimum wages, arrears, leave book, overtime card, transport allowance, salary increment, bonus, national and festival leaves, ESI and PF etc. It is further claimed that he demanded continuously for above-mentioned legal benefits from management, but they did not pay any heed to the same.
3. It is further stated that management terminated his services on 22.05.2018 without any show cause notice/ LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
2/17termination letter and even did not pay service compensation. It is further claimed that the management made him sign on blank papers and vouchers during his service period.
4. It is further claimed that he sent a demand notice through speed post on 26.11.2018 to the management with the demand of reinstatement and back wages but the management neither replied to the said demand letter nor reinstated him back to job.
5. It is further claimed that due to non-cordial attitude of the management during conciliation proceedings before Assistant Labour Commissioner, the dispute could not be settled and hence, reference was sent to this Court for adjudication.
6. It is prayed by workman that he be reinstated in his previous job with the management with back-wages with interest and be also awarded alongwith litigation expenses.
PART-C MANAGEMENT'S STAND/REPLY
7. It is submitted by the management that the claimant was appointed on temporary/ on probation basis. It is further submitted by management that during the temporary/ probationary period, management used to provide all the statutory benefits and facilities to workman.
LIR No. 3155/19Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
3/178. It is further submitted by the management that the workman had worked only for 218 days with management and did not complete his 240 days of continuous employment. In its written statement, the management further denied the averments made by workman in his statement of claim.
PART-D REJOINDER
9. No rejoinder to the written statement of management was filed on behalf of workman.
PART-E ISSUES
10. From the pleadings of the parties, the Court, vide its order dated 25.09.2021, 18.08.2022 and 03.01.2023, framed following issues for trial, reading as under : -
1.) Whether the workman was in continuous service for 01 year and had worked for more than 240 days before the termination of services? OPW
2.) Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? OPW
3.) Whether the workman is entitled for reinstatement of his services and also consequential benefits attending thereto? OPW
4.) Relief.LIR No. 3155/19
Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
4/17PART-F CLAIMANT'S EVIDENCE
11. In support of his claim, claimant examined himself on 16.02.2024 as WW-1 and deposed along the lines of statement of claim filed by him and also relied upon the following documents in support of his case:
a.) Copy of demand notice dated 26.11.2018 vide Ex.WW1/1.
b.) Copy of postal receipt vide Ex.WW1/2. c.) Copy of Identity Card vide Ex.WW1/3.
12. During his cross-examination, the workman/ WW-1 deposed that he had not enclosed any appointment letter or other document in proof of his employment as the management had not provided any appointment letter. He further deposed that his date of appointment with the management was 08.10.2017 and he could not remember the exact date. He further deposed that he had not enclosed any document in regard to his demands with the management prior to his termination. He further deposed that no earned wages were pending with the management, however, 03 month's conveyance charges were still due. He further deposed that his household expenses were Rs.18,000/- per month. He further deposed that he was the sole earner in the family. He denied that he was deposing falsely.
13. Thereafter, workman's evidence was closed and matter was fixed for management's evidence for 05.04.2024.LIR No. 3155/19
Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
5/17PART-G MANAGEMENT EVIDENCE
14. On 05.04.2024, Ld. counsel/AR for the management stated that the management did not wish to lead any evidence in the matter. On his statement, the opportunity to lead evidence was closed to the management.
PART-H FINDINGS/CONCLUSION
15. After considering the claim, reply, documents and the evidence led on record and also the submissions, made by the Ld. Counsel for the workman and Ld. AR for the management, the issues are decided as under:-
16. Issue No. 1:- Whether the workman was in continuous service for 240 days in the previous year before the termination of services? OPW This is an issue, to the effect, as to whether the workman has not completed 240 days of his service and burden to prove this issue was upon the workman. As per the stand taken by the workman, he had been employed by the management as a Field boy on 01.04.2017 and the management had terminated his services on 22.05.2018 without any reason. On the other hand, the management has countered the stand of the workman stating that the workman had left the services of the LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
6/17management on his own on 22.05.2018 and that he had worked only for a period of 218 days. It is stated by the management that the workman had not completed 240 days of continuous service under the management during the period of 12 calendar months preceding the date of termination as claimed by the workman.
17. In order to decide the issue raised, it is first necessary to consider the scope and ambit of the relevant provisions, namely Section 2 (oo), Section 25B and Section 25F of the Industrial Disputes Act. The appropriate provisions are reproduced below:
Section 2 (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as 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 a workman as a result of the non-renewal 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 LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.7/17
continued ill-health;
Section 25B: Definition of Continuous Service:- For the purposes 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 authorized leave or an accident or as strike which is not illegal, or a lock-out 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 --
(i) one hundred and ninety days in the case of a workman employed below ground in a mine ; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer not less than --
(i) ninety five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty five days, in any other case.
Explanation- For the purposes of clause (2), the number of LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
8/17days on which a workman has actually worked under an employer shall Include the days on which --
(i) he has been laid-off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years ;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment ; and
(iv) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave does not exceed twelve weeks.
Section 25F - Conditions precedent to retrenchment of workmen: - 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 is served on the appropriate Government or such authority as may be specified by the LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.9/17
appropriate Government by notification in the Official Gazette. As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act).
18. Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of non-renewal of the contract of employment; or (iv) termination of the service on the ground of continued ill- health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment.
19. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee;that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
10/17employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act.
The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely :-
i) one month's clear notice in writing indicating the reasons for retrenchment or that the workman has been paid wages for the period of notice in lieu of such notice;
ii) payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part thereof, in excess of six months;
iii) a notice to the appropriate Government in the prescribed manner.
20. To attract the provisions of Section 25F, one of the condition required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
11/17on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workmen shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in Sub- Section (1). The workmen must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of Sub Section(1) of Section 25B is that the workmen should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned herein above. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B for the period of one year or six months, he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clause (a) and (b) of Sub-s(2). By the legal fiction of Sub-s2(a) (i), the workmen shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workmen has put in at least 240 days with his employer, immediately prior to the LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
12/17date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.
21. It has been held by the Hon'ble Supreme Court of India in K.V Anil Mithra and Anr. v. Sree Sankracharya University of Sanskrit and Anr.1 that "The scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25F of the Act of 1947.
It further held that "The salient fact which has to be considered is whether the employee who has been retrenched is a workman under Section 2(s) and is employed in an industry defined under Section 2(j) and who has been in continuous service for more than one year can be retrenched provided the employer complies with the twin conditions provided under clauses(a) and (b) of Section 25F of the Act 1947 before the retrenchment is given effect to. The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of Section 25F of the Act 1947.
22. Coming to the question of burden of proof as to the completion of 240 days of continuous work, the law was laid down in Manager, Reserve Bank of India Vs. S. Mani (2005) 5 SCC 100, wherein it was held that the initial burden of 1 CIVIL APPEAL NO(S). 9067 OF 2014 DoD 27.10.2021 LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
13/17establishment the factum of continuous work for 240 days in a year was on the workmen.
23. Thus, in the instant case, it was the workman who was required to prove that he had worked for 240 days continuously in the preceding year. It is the case of the workman that he had joined the management on 01.04.2017 and had worked with them till 22.05.2018, when his job was illegally terminated by the management. However, he has not filed any documentary proof to show that he had worked for 240 days continuously in the preceding year before his termination on 22.05.2018. He has filed only a photocopy of demand notice sent to the management vide Ex.WW1/1, the photocopy of the postal receipt pertaining to the demand notice vide Ex.WW1/2 and copy of his ID card vide Ex.WW1/3, none of which proves the number of days worked by him with the management.
24. Thus, there is no evidence on record to prove that the workman had actually worked for 240 days in the year preceding his termination.
25. In Municipal Corporation, Faridabad Vs. Siri Niwas (2004) 8 SCC 195, it was noticed that neither the management nor the workman cared to produce the muster roll and that the employee did not even summon the muster roll although the management had also failed to produce them. The court held that the employee had not produced any evidence before the court in support of his contention of having complied with the LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
14/17requirement of section 25-B ID Act, that apart from examining himself in support of his contention, the employee did not produce or call for any document from the office of the management including the muster roll, and that apart from muster rolls, the employee did not produce the offer of employment or evidence concerning remuneration received by him for working during the aforementioned period. In the case of Range Forest Officer Vs. S.T. Hadimani (2002) 3 SCC 25, the court held that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination, that filing of an affidavit is only his own statement in his own favour, which cannot be recorded as sufficient evidence for any court or tribunal to come to the conclusion that the workman had worked for 240 days in a year. The court found that there was no proof of receipt of salary or wages for 240 days, that the letter of appointment was not produced, that the letter of termination was not produced on record. The same was reiterated in the case of Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan (2004) 8 SCC 161 and in the case of M.P Electricity Board Vs. Hariram (2004) 8 SCC 246.
26. In the instant case also, no proof of receipt of salary or wages or any record to prove that the workman had actually worked with the employer for not less than 240 days during the period of 12 calender months preceding the date of termination has been produced by the workman. He has not examined any co-worker. It is improbable that the workman who claims to LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
15/17have worked with the management for such a long period would not possess any documentary evidence to prove the nature of his engagement and the period of work he had undertaken with his employer. Therefore, in the opinion of this court, the workman has failed to discharge his burden that he was in the employment for 240 days during the preceding 12 month from the date of termination of his service.
27. Therefore, in view of the provisions of the ID Act discussed above and the settled law on the subject, to get any relief under the Act, prima facie, it must be shown by the workman that he had completed 240 days of work in the preceding 12 months from the alleged date of termination. In the present case, the workman has not proved that he had worked for 240 days in the preceding 12 months from the alleged date of termination. Hence, the workman has no claim under the Act.
In view of the above findings, the above issue is decided against the workman.
28. ISSUE NO. 2 & 3. These issues pertain to whether the workman was terminated from the services by the management illegally/ unjustifiably and whether he was entitled for reinstatement and other consequential benefits. Since, it has been held by the court in Issue No.1 that the workman has no claim under the Industrial Disputes Act, the Court is not required to go into the question of legality/illegality of the termination of his services, since the workman himself has LIR No. 3155/19 Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.
16/17failed to fulfill the condition precedent to attract the Provision of Section 25 (F) of ID Act. Hence, issue no. 2 and 3 are also decided against the workman.
29. Issue No. 4 : -- In view of the categorical findings, just returned, as above on the issue no.1, 2 and 3, it is held that the workman is not entitled for any relief under the Act and his claim is liable to be dismissed. Hence, this Court dismisses the claim of the applicant/ workman.
30. Reference is answered accordingly.
31. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
Digitally signed by ARCHANA ARCHANA BENIWAL Announced in the open Court BENIWAL Date:
2025.01.08 on 08.01.2025 15:55:31 +0530 (ARCHANA BENIWAL) DISTRICT JUDGE/ POLC-V, ROUSE AVENUE COURT COMPLEX NEW DELHI.LIR No. 3155/19
Ravi Kumar Vs. M/s Printland Digital (India) Pvt. Ltd.17/17