Delhi District Court
The Secretary (Labour) Vide His Order ... vs Jethabhai Pitamberbhai (2005) 8 ... on 7 November, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
I.D. NO.1103/2006
Date of Institution: 5.7.2005
Award reserved on: 5.11.2007
Date of Award : 07.11.2007
BETWEEN
MANAGEMENT OF : M/S CHETNALAYA, L-BLOCK, GALI NO.9,
SANGAM VIHAR, NEAR SITALA MANDIR, NEW DELHI -62.
AND
ITS WORKMAN : SMT. SONI DEVI W/O SH. ASHOK KUMAR
DUBEY C/O DELHI READYMADE AND LEATHER GENERAL
KARAMCHARI UNION, F-82, HARKESH NAGAR, OKHLA TANK
(OPP.) NEW DELHI-20.
AWARD
1. The Secretary (Labour) vide his order F.24
(3245)/2004/Lab./7356-360 dated 19.04.2005 referred the following
industrial dispute to the court for adjudication with following terms of
reference :
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TERMS OF REFERENCE
"Whether the services of Smt. Soni Devi S/o Sh. Ashok
Kumar Dubey have been terminated illegally and / or
unjustifiably by the management, and if so, to what sum
of money as monetary relief alongwith consequential
benefits in terms of existing laws/Govt. Notifications
and to what other relief is he entitled and what directions
are necessary in this respect?"
2. Facts as pleaded in the statement of claim by the claimant are
as follows :
She was appointed by the management as helper in November
2000. Her last drawn wages were Rs.950/- per month. She worked
honestly and diligently. She never gave any cause of complaint to the
management. Management did not give her statutory benefits,
such as attendance card, bonus, annual leave, wages slip, ESI
contribution. When she demanded the same management got annoyed
and terminated her services on 1.6.2004 and also obtained her
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signatures on blank papers. She sent a demand notice to the
management. Management neither replied to the notice nor made her
any payment. She has prayed for her reinstatement with full back
wages.
3. Management contested her claim vide its written statement. It
is stated that she was never employed on regular basis. It is stated that
she was taken on duty as safai karamchari on 1.3.03. it is stated that
she worked for 10-15 days in that month. It is further stated that she
was re-employed on 1.4.04 and she worked till 31.5.04. It is denied
that she was removed from service. It is stated that she did not report
for work after 31.5.04. It is denied that anything is due to her. It is
stated that management has paid all her wages. It is denied that
management did not provide her statutory benefits. It is denied that
she is entitled to any relief.
4. Following issues were framed :
1. Whether claimant was a regular worker of the
respondent/management? OPW
2. As per terms of reference.
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3. Relief.
7. Claimant examined herself as WW-1 and thereafter closed her evidence. Management examined Sh. Susai Sebastian its director as MW-1 and closed his evidence.
8. I have perused the material available on record. I have also heard Ld. AR for both sides.
ISSUE NO.-1
9. Claimant claims to have worked with the management since May 2000 to 1.6.04. The management has stated that she worked for about 15 days in the month of March 2003 and she was again appointed on 1.4.04 and she worked till 31.5.04.
10. Onus is on the worker to prove that she worked atleast for 240 days continuously in a year preceding the date of alleged termination of her service as is clear from the following judgments :
In Bhogpur Co-operative Sugar Mills Ltd. v. Harmesh Kumar 4 2007 LLR 183 SC The Hon'ble Apex Court held that :
"For applicability of section 25 F of the I.D. Act, 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 Ravi N. Tikku v. Deputy Commissioner (S.W.) & Ors. 2006 LLR 496 recently our own Hon'ble High Court discussed the issue of onus of proof of employment and observed as follows :
"It has been repeatedly held that so far as an industrial claim is concerned, its procedure is guided by the general principles of the law of evidence that he who asserts must prove. Based on the rule of Roman Law - 'el incumbit probatio, qui dicit, non qui negat'
- the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and no upon the party who denied it, for a negative does not admit of direct and 5 simple proof.
In Surendra Nagar District Panchayat and Another Vs Jethabhai Pitamberbhai (2005) 8 Supreme Court Cases 450, the Hon'ble Apex Court observed as follows :
"The burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the factum of his being in employment of the employer... From the tenor of the judgment of the Labour Court and the High Court, it is apparent that the judgments have proceeded on the premise as if the burden of proof lies on the employer to prove that the employee had not worked with him for 240 days in the preceding year 6 immediately before the date of his termination. The Labour Court and the High Court committed an error in placing the burden on the employer to prove that the workman had not worked for 240 days with the employer."
In Range Forest Officer v. S.T. Hadimani (2002) 3 Supreme Court Cases 25 the Apex Court held :
".........in our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to 7 lead evidence to show that he had in fact worked for 240 days in the year proceeding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
In Manager, Reserve Bank of India v. S. Mani and Ors. 2005 (III) SLT 191 : 2005 LLR 737 (SC) it was held by Hon'ble Apex Court that initially burden of proof is on the workman to show that he had been employed by the respondent management in the claimed 8 capacity on the stated terms.
In Mukesh K. Tripathi v. Sr. Divisional Manger, LIC and others 2004 (103) FLR 350 SC Hon'ble Apex Court said that the onus was on the claimant to prove that he is a workman.
In R.M. Yallatti V. Assistant Executive Engineer 2006 (108) FLR 213 SC it was held by the Hon'ble Apex Court that it has repeatedly held that the burden of proof is on the claimant to show that he had worked for 240 days in a year. It was observed :
"The above decisions however make it clear that mere affidavits or self-serving statements made by the claimants/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to 9 draw an adverse inference against the management."
9. Claimant has not been able to prove any document that she worked for the required period of 240 days in the month to be entitled to invoke section 25 F of the Act. Documents Ex.WW1/1 to WW1/5 do not have remotely show the period of her employment with the management.
10. How the worker can prove that he was the workman of the respondent management was clarified by our own Hon'ble High Court in the case of M/s Automobile Association of Upper India vs. P.O. Labour Court II & Anr. 2006 LLR 851 wherein it was held that workman can prove his employment by production of appointment letter, written agreement or by circumstantial evidence which can be in the nature of attendance register, salary register, leave record, deposition of PF contribution, employees state insurance contribution. It was also held that the workman can call upon the management to produce these records and on failure of the management to produce 10 such record, an adverse inference can be drawn against the management.
11. She has not asked for production of any record from the management which could prove her employment for the requisite period.
12. In the absence of any evidence showing her employment with the management for a period of atleast 240 days, as per section 25 (B) issue is decided against her.
ISSUE NO.2
13. The claimant has stated that her services were terminated on 1.6.04. Onus is on her to prove that her services were terminated as held in Ravi N. Tikku (supra).
14. There is no document showing termination of her services by the management. This issue is accordingly decided in favour of the management and against the claimant.
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15. Claimant has failed to prove that she worked with the management for 240 days in a year preceeding the date of alleged termination of her services to be able to invoke section 25 F of the Act. Further there is no evidence that her services were terminated. As such she is not entitled to any relief. Reference is answered in negative. Appropriate government be informed. File be consigned to record room.
Announced in open court
on 07.11.2007 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS
DELHI
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