Delhi District Court
The National Capital Territory Of Delhi vs State Of on 24 January, 2008
1
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI
ID NO. 794/2006
BETWEEN
Workmen
1. Sh. Jiyalal Yadav S/o Sh. Uday Nath Yadav,
2. Sh. Ramjeet Yadav S/o Sh. Prithvipal Yadav,
3. Sh. Bholanath Nishad S/o Sh. Hiralal Nishad,
4. Sh. Rajesh Yadav S/o Sh. Pabbar Yadav,
5. Sh. Nand Lal Nishad S/o Sh. Kalu Nishad,
6. Sh. Anil Kumar Nishad S/o Sh. Hiralal Nishad,
7. Sh. Hari Shankar Nishad S/o Sh. Sarvdev Nishad &
8. Sh. Satya Prakash S/o Sh. Ram Nayan Sharma
C/o Shops and Commercial Workers Union,
T-551, Gali Punjabi Wali, Factory Road, Nabi Karim,
New Delhi-110055.
AND
The Management,
M/s. Yadav Plastics,
6814-A, Kila Kadam Sarif,
Nabi Karim, Near Motiakhan,
New Delhi-110055.
Date of institution of the case : 02.07.2004
Date of reserving the award : 10.01.2008
Date of announcement of award : 24.01.2008
AWARD
1. The National Capital Territory of Delhi, Delhi through its Secretary
(Labour) vide reference no. F.24(134)/2003-Lab.3719-23 dt. 27.05.2004
referred the dispute for adjudication between the Management of M/s. Yadav
Plastics and its workmen Sh. Jiyalal Yadav S/o Sh. Uday Nath Yadav, Sh.
Ramjeet Yadav S/o Sh. Prithvipal Yadav, Sh. Bholanath Nishad S/o Sh. Hiralal
Contd.....
2
Nishad, Sh. Rajesh Yadav S/o Sh. Pabbar Yadav, Sh. Nand Lal Nishad S/o
Sh. Kalu Nishad, Sh. Anil Kumar Nishad S/o Sh. Hiralal Nishad, Sh. Hari
Shankar Nishad S/o Sh. Sarvdev Nishad & Sh. Satya Prakash S/o Sh. Ram
Nayan Sharma in the following terms of reference:-
"Whether the services of Sh. Jiyalal Yadav S/o Sh.
Uday Nath Yadav, Sh. Ramjeet Yadav S/o Sh. Prithvipal
Yadav, Sh. Bholanath Nishad S/o Sh. Hiralal Nishad,
Sh. Rajesh Yadav S/o Sh. Pabbar Yadav, Sh. Nand Lal
Nishad S/o Sh. Kalu Nishad, Sh. Anil Kumar Nishad S/o
Sh. Hiralal Nishad, Sh. Hari Shankar Nishad S/o Sh.
Sarvdev Nishad & Sh. Satya Prakash S/o Sh. Ram
Nayan Sharma have been terminated by the
management illegally and/or unjustifiably and if so, to
what relief are they entitled and what directions are
necessary in this respect?"
2. The workmen have filed statement of claim stating therein that they
have been employed with the management as per details furnished below:-
S.No. Name Designation Salary Minimum Date of
Received Salary Joining
1 Sh. Jiyalal Yadav Fitting Man Rs.3500/- February 1992
2 Sh. Ramjit Yadav Fitting Man Rs.2500/- Rs.3207.90 April 1996
Sh. Bhola Nath Fitting Man Rs.3500/- July 1995
3 Yadav
4 Sh. Rajesh Yadav Fitting Man Rs.2500/- Rs.3207.90 August 2000
5 Sh. Nandlal Nishad Fitting Man Rs.2500/- Rs.3207.90 January 1995
Sh. Anil Kumar Fitting Man Rs.3000/- Rs.3207.90 March 2000
6 Nishad
Sh. Hari Shankar Fitting Man Rs.1800/- Rs.3207.90 January 1999
7 Nishad
Satya Prakash Fitting Man Rs.1800/- Rs.3207.90 January 1999
8 Sharma
Contd......
3
It is stated that the workmen were working sincerely and diligently to the
satisfaction of management and never gave any chance of complaint to the
Management. The Management was not providing legal facilities i.e
appointment letter, minimum wages, leave wages, bonus, overtime wages etc.
and the management was also not maintaining the service record and the
workmen were orally demanding the same on which management started
remaining annoyed and started withholding the wages of the workmen. On
demand of due wages by the workmen from the management, the
management made part payment of wages and terminated the services of the
workmen on 26.08.2003 without issuing any notice or charge-sheet and
earned wages from 01.04.2003 to 25.08.2003, leave wages, bonus, overtime
wages and arrears of minimum wages were not paid to the workmen. The
workmen made complaint to Labour authorities on 27.08.2003 and on
15.09.2003 Labour Inspector took the workmen to the management but the
management refused to reinstate the workmen and also did not make
payment of dues of workmen. The workmen sent notice of demand to the
management on 28.08.2003, but the management did not send any reply to
the same. The workmen presented their claim before the Conciliation Officer,
but settlement was not arrived. The workmen are unemployed since the date
of termination of their service. It is prayed that an award be passed thereby
reinstating the workmen in service with full back wages and continuity of
services.
Contd.....
4
3. The notice of statement of claim was issued to the management and
the management has filed WS and has contested the same. In the WS
management has stated that none of the workmen whose names appear in
the statement of claim have worked with the management. It is stated that the
management employs workers on piece rate basis and there is no designation
of Fitting Man in the management. As the management never employed the
workmen as stated in the statement of claim, hence the details of the period of
employment and the salary/wages of the workmen need no reply. It is stated
that the management maintains all records with respect to its employees and
the management does not make any workman to perform overtime work and if
any workman performs extra work he has paid accordingly. It is stated that the
management also provides legal facilities to the workmen employed by it. It is
denied that the workmen/claimants were demanding dues from the
management. It is denied that the workmen were demanding statutory facilities
and dues from the management on which management got annoyed and
terminated their services on 26.08.2003, as alleged. It is also denied that the
Labuor Inspector visited the management alongwith the workmen, but the
management refused to make payment of dues of the workmen and refused to
reinstate them. It is stated that the workmen are gainfully employed elsewhere.
It is stated that the workmen are not entitled to any relief.
4. Workmen have filed rejoinder to the written statement of management.
In the rejoinder workmen have reiterated the contents of statement of claim
and have controverted the allegations of management as stated in the WS.
Cond......
5
5. From the pleadings of parties following issues were framed by my Ld.
Predecessor on 07.03.2005:-
1. Whether there existed relationship of employees and employer
between the parties? OPW.
2. As per terms of reference.
6. To prove their case the workmen examined themselves Sh. Jiya Lal
Yadav as WW1, Sh. Bhola Nath Nishad as WW2, Sh. Nand Lal Nishad as
WW3, Sh. Anil Kumar as WW4, Sh. Vishnu Sharma, Labour Inspector as
WW5, Sh. Hari Shankar Nishad as WW6 and Sh. Satya Prakash Sharma as
WW7.
7. Management examined Sh. Jagan Nath Yadav, Proprietor as MW1.
8. I have heard Authorized Representatives for both the parties and
carefully perused record. My findings on specific issues are as under:-
ISSUE NO. 1
9. The appropriate Government has made reference in respect of eight
workmen. However, workman Sh. Rajesh Yadav has not filed the statement of
claim and although the workman Sh. Ramjeet Yadav has filed the statement of
claim, however, he has not appeared in the witness box in order to prove that
he was in the employment of management. The workmen Sh. Ramjeet Yadav
and Sh. Rajesh Yadav have not proved that they were in the employment of
management for the periods as alleged and there existed relationship of
employer and employee between the management and them.
10. The workmen Sh. Jiyalal Yadav, Sh. Bholanath, Sh. Nand Lal Nishad,
Sh. Anil Kumar Nishad, Sh. Hari Shankar Nishad & Sh. Satya Prakash have
Contd......
6
filed statement of claim stating therein that they have been employed with the
management for the period as mentioned in the statement of claim and their
services have been terminated illegally by the management on 26.08.2003.
The management filed W.S. and in the W.S. management denied that the
aforesaid workmen were in the employment of management and there existed
relationship of employer and employee between the parties. The contention of
AR for the management is that the workmen were not in the employment of
management but as they belonged to Distt. Jaunpur, U.P. from which place
Proprietor of management hails on that account the workmen were allowed to
reside in the premises of the management.
11. The plea of AR for management is that it is for the workmen to prove
that there existed relationship of employer and employee between the parties
and that the workman has worked continuously for 240 days in a year with the
management.
12. In Workmen of Nilgiri Coop. Marketing Society Ltd. vs. State of
Tamil Nadu and Ors., 2004 LLR 351 Hon'ble Supreme Court held that:
36. In a given case it may not be possible to infer
that a relationship of employer and employee has
come into being only because some persons had
been more or less continuously working in a particular
premises inasmuch as even in relation thereto the
actual nature of work done by them coupled with
other circumstance would have a role to play.
38. The control test and the organization test,
therefore, are not the only factors which can be said
to decisive. With a view of elicit the answer, the court
is required to consider several factors which would
have a bearing on the result: (a) who is appointing
7
authority; (b) who is the pay master; (c) who can
dismiss; (d) how long alternative service lasts; (e) the
extent of control and supervision; (f) the nature of the
job, e.g. whether, it is professional or skilled work; (g)
nature of establishment; (h) the right to reject.
13. In Range Forest Officer v. S.T. Hadimani, 2002 (93) FLR 179 (SC),
the Hon'ble Supreme Court held that it was then for the claimant to lead-
evidence to show that he had in fact worked for 240 days in the year preceding
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.
14. In Rajasthan State Ganganagar S. Miils Ltd. v. State of Rajasthan
and another, 2004 (4) LLN 845; Municipal Corporation, Faridabad v. Siri
Niwas, 2004 LLR 1022 (SC): 2004 (4) LLN 785 and Madhya Pradesh
Electricity Board v. Hariram, 2004 (4) LLN 839: 2005 LLR 1 (SC), the
Hon'ble Supreme Court reiterated the principle that 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 an evidence apart from examining himself to prove the factum of his
being in employment of the employer.
15. In Surendranagar District Panchayat and Anr. v. Jethabhai
Pitamberbhai, 2006 LLR 250 the Hon'ble Supreme Court held that when the
workman apart from examining himself in support of his contention has not
produced any proof in the form of receipt of salary or wages for 240 days or
record of his appointment or engagement for that year to show that he has
8
worked with the employer for 240 days to get the benefit under section 25F of
the Industrial Disputes Act, in the absence of evidence on record the Labour
Court and the High Court have committed an error in law and fact in directing
reinstatement of the respondent-workman.
16. Hence, as per aforesaid decisions it is for the workmen to prove that they have been employed with the management for the periods as alleged and that their services were illegally terminated by the management.
17. To prove their case the workmen Sh. Jiya Lal, Sh. Bhola Nath Nishad, Sh. Nand Lal Nishad, Sh. Anil Kumar, Sh. Hari Shankar Nishad and Sh. Satya Prakash Sharma appeared in the witness box as WW1, WW2, WW3, WW4, WW6 and WW7 respectively. The workmen have also examined Sh. Vishnu Sharma, Labour Inspector as WW5. The workmen have adduced evidence by way of affidavits Ex. WW1/A to Ex. WW4/A, Ex. WW6/A and Ex. WW7/A. The workmen have relied on copy of the complaint dt. 27.08.2003 Ex. WW1/1 made to Assistant Labour Commissioner by Shops and Commercial Workers Union registered, copy of demand notice dt. 28.08.2003 Ex. WW1/2, postal receipt Ex. WW1/3, AD Card Ex. WW1/4, UPC receipt Ex. WW1/5, copy of complaint dt. 13.08.2003 made to Assistant Labout Commissioner Ex. WW1/6, copy of report of the Labour Inspector dt. 15.09.2003 Ex. WW1/7, copy of the claim filed before the Conciliation Officer Ex. WW1/8, inland letters Ex. WW1/9 to Ex. WW1/11. In the cross-examination the workmen i.e Sh. Jiya Lal/WW1, Sh. Bhola Nath Nishad/WW2, Sh. Nand Lal Nishad/WW3, Sh. Anil Contd.....
9Kumar/WW4, Sh. Hari Shankar Nishad/WW6 and Sh. Satya Prakash Sharma/WW7 stated that they do not have any document to show that they had worked with the management. The plea of the workmen is that the management had not issued them any documents and the workmen have relied on report of Labour Inspector Ex. WW1/7 in order to prove that they were in the employment of management. The Labour Inspector who has prepared report Ex. WW1/7 appeared in the witness box as WW5 and stated that on 13.08.2003 the complaint Ex. WW1/6 was assigned to him and the report dt. 15.09.2003 Ex. WW1/7 has been prepared by him. In the report Ex. WW1/7 the Labour Inspector has stated that on 22.08.2003 he had visited the management and he found the workmen namely Sh. Jiya Lal, Sh. Hari Shankar, Sh. Rajesh Yadav, Sh. Nand Lal, Sh. Ramjeet and Sh. Satya Prakash working in the management and the management did not produce any record in respect of them and the management stated that they will produce the record on 27.08.2003 and on that day the management did not appear alongwith the records. As per report of Labour Inspector Ex. WW1/7 the workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 were not found by him working in the premises of management. Workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 have only relied on copy of the complaint made to Assistant Labour Commissioner Ex. WW1/1, copy of the demand notice Ex. WW1/2, copy of complaint dt. 13.08.2003 made to Assistant Labour Commissioner Ex. WW1/6 and copy of the claim filed before the Conciliation Officer Ex. WW1/8 which do not prove the date of appointment of workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4, the post Contd......
10of the workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 and last drawn wages of workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 and that the workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 have worked continuously for 240 days in a year with the management. The workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 have not put any question to Labour Inspector/WW5 to the effect that they i.e workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 were also found working with the management on his visit on 22.08.2003. The workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 have not produced any evidence in the form of receipt of salary/wages or that they have worked continuously for 240 days in a year with the management or records of their engagement in order to prove that they were in the employment of management. The workmen Sh. Bhola Nath Nishad/WW2 and Sh. Anil Kumar/WW4 have failed to prove that there existed relationship of employer and employee between the parties.
18. Sh. Vishnu Sharma, Labour Inspector/WW5 proved his report Ex. WW1/7 as per which workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 were found working with the management on 22.08.2003. The management did not prefer to put any question to WW5 in the cross-examination and the management has not suggested to WW5 in the cross-examination that workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 were not working with the management on 22.08.2003 and that the report Ex. WW1/7 prepared by WW5 is a false report. The management has failed to Contd......
11rebut the contents of report of the Labour Inspector Ex. WW1/7. The workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 have proved on the basis of report of the Labour Inspector Ex. WW1/7 that they were found in the employment of management as on 22.08.2003.
19. Although, in the W.S. the management has not taken any plea that any of the workmen were allowed to reside in the premises of the management as they belonged to the district of the Proprietor of the management but in the cross-examination of workmen the management has given suggestions to the effect that as they were related to Proprietor of management on that account they were allowed to reside in the factory's premises. The Proprietor of management Sh. Jagan Nath Yadav appeared in the witness box as MW1 and he adduced evidence by way of affidavit Ex. MW1/A and in para 3 of the affidavit Ex. MW1/A the management has stated that the workmen Sh. Jiya Lal and Sh. Nand Lal Nishad are from the same village as that of MW1 and Sh. Hari Shankar Nishad and Sh. Anil Kumar Nishad are close relatives of Sh. Nand Lal Nishad and Sh. Satya Prakash Sharma is neighbour of a close relative of the MW1 and as such all of them alongwith some other natives of the same village, were allowed to live in the building of the MW1 and since none of them had any accommodation in Delhi, so they used to get letters from their native village at the address of the management. MW1 stated in the cross-examination that the management had five moulding machines and the management had employed 5/6 workers and the management was maintaining the attendance register and the wages register. However, MW1 Contd.....
12further stated in the cross-examination that he cannot produce the attendance register and wages register prior to August 2003. If the plea of the management is that the workman as named in para 3 of affidavit Ex. MW1/A were allowed to reside in the premises of the management on account of humanitarian grounds and they were not in the employment of management, in the circumstances in order to prove its contention it was open for the management to have produced the attendance register and wages register maintained by the management in respect of its employees to prove that they were not employees of the management and on that account their names do not find mention in the attendance register and wages register maintained by the management for its employees. MW1 admitted in the cross-examination that the Labour Inspector had visited the management on 22.08.2003. However, the management has not given any suggestions to Labour Inspector/WW5 who proved his report Ex. WW1/7 as per which Labour Inspector had visited the management on 22.08.2003 and had found workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 working therein, that workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 were not working with the management on 22.08.2003 and the report Ex. WW1/7 of Labour Inspector is incorrect. On one hand the management has not rebutted the report of the Labour Inspector Ex. WW1/7 as per which workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 were found in the factory of the management. On the other hand the management has pleaded that they were not in the employment of management, but on account of humanitarian Contd....
13grounds they were residing in the factory's premises. If in the circumstances, the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 have proved a prima facie case that they were in the employment of management and in the circumstances onus shifted on the management to have rebutted the claim of the workmen by producing its records to prove that the workmen were not in the employment of the management.
20. In the case of Bank of Baroda vs. Ghemarabhai Harjibhai Rabari, 2005 LLR 443 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.
21. Although, it is for the workmen to prove that there existed relationship of employer and employee between the parties and that he has worked continuously for 240 days in preceding one year prior to termination of his services but if the management does not issue any documents to the workman relating to his employment in that case it was held in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. 2006 LLR 851 that:
14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution Contd....14
and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
22. In Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi, 2006 LLR 1080, Hon'ble Supreme Court held
10. In R.M. Yellatti v. The Asst. Executive Engineer, JT 2005 (9) SC 340: 2006 LLR 85 (SC), the decisions referred to above were noted and it was held as follows:
"Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated 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 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 daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the Contd.....15
workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/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 draw an adverse inference against the management."
23. As per decisions in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. (Supra) and Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi (Supra) it is for the workman to call upon the management to produce the relevant record in order to prove that he has been employed with the management for the period as alleged.
24. The plea which has been raised by workmen is that the management has not issued them appointment letter and the management was also not maintaining any service record of its employees and on demand of the same their services were terminated by the management and the workmen sent notice of demand dt. 28.08.2003 Ex. WW1/2 to the management vide posal receipt Ex. WW1/3 and the AD card is Ex.WW1/4. MW1 stated in the cross-
Contd....
16examination that AD card Ex. WW1/4 bears signature of his brother Sh. Shobhnath at point A, which proves the service of notice Ex. WW1/2 on the management. After service of notice Ex. WW1/2 the management did not send any reply to the workmen in order to rebut their claims by stating that they were not in the employment of management or that if they were in the employment of management, the management was providing the statutory facilities to them. As the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 were not issued any document by the management relating to their employment, in the circumstances, after establishing prima facie case relating to their employment with the management by the report of the Labour Inspector Ex. WW1/7, it was open for them to call upon the management to produce the records maintained by it in respect of its employees. However, MW1 stated in the cross- examination that he cannot produce the attendance register and wages register prior to August 2003. In the circumstances, as the management has not produced any record maintained by it in respect of its employees an adverse inference has to drawn to the effect that the management has deliberately not produced the said record in order to defeat the claim of the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3. In the circumstances, workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 have proved that they were in the employment of management and there existed relationship of employees and employer between them and the management. This issue stands answered accordingly.
Contd.....
17ISSUE NO. 2
25. In findings of issue no. 1 above it has been held that the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 have proved that there existed relationship of employees and employer between the parties. The plea of the workman Sh. Jiya Lal/WW1 is that he has been in the employment of management since February 1992 and his last drawn wages were Rs.3500/- per month, plea of the workmen Sh. Hari Shankar Nishad/WW6 and Sh. Satya Prakash/WW7 is that they have been in the employment of management since January 1999 and their last drawn wages were Rs.1800/- per month and plea of the workman Sh. Nand Lal Nishad/WW3 is that he has been in the employment of management since January 1995 and his last drawn wages were Rs.2500/- per month. The management has failed to rebut the period of employment and last drawn wages as pleaded by the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 respectively.
26. The plea which was raised by the management is that the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 were not in the employment of management and the management has nowhere pleaded that they had voluntarily absented from the services of the management or they had abandoned the employment of management and the management had sent any letter to aforesaid workmen namely Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 thereby directing them to report for duties or that the Contd.....
18management had conducted any enquiry for the unauthorized absence of aforesaid workmen from duties.
27. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
28. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
Contd....
19
29. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005- LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
30. Section 2(oo) of the Industrial Disputes Act 1947 reads as under:
"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a 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 the 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 continued ill-health.
31. Section 25F of the Industrial Disputes Act 1947 provides that:
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;
Contd....
20
(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 appropriate Government by notification in the Official Gazette.
32. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workmen Sh. Jiya Lal, Sh. Hari Shankar, Sh. Satya Prakash and Sh. Nand Lal have been terminated illegally by the management.
33. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workmen Sh. Jiya Lal, Sh. Hari Shankar, Sh. Satya Prakash and Sh. Nand Lal
34. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-LLR-275 it was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
35. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed Contd....
21since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
36. In decision dt. 10.2.2006 in LPA No. 1647/05 titled as "M/s Lords Homeopathic Laboratories Pvt. Ltd. v. Ms. Lissy Unnikunju & ors. wherein our own Hon'ble High Court relied on decision in Employers, Management of Central P & D Inst. Ltd. v. Union of India AIR 2005 SC 633. where the Hon'ble Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted.
37. In J. K. Synthetics Ltd. vs. K. P. Agrawal & Anr., 2007 LLR 358 it was held that:
17. There is also a misconception that wherever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' Contd.....22
should also be directed we may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud, 2003 (2) SCC 212: 2003 LLR 225 (SC);
A.P.S.R.T.C. v. Abdul Kareem, 2005 LLR 943: 2005 (6) SCC 36 and R.S.R.T.C. v. Shyam Bihari Lal Gupta, 2005 (7) SCC 406: 2005 LLR 1196 (SC).
18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case............
38. In the statement of claim and in the affidavits Ex. WW1/A, Ex. WW6/A, Ex. WW7/A and Ex. WW3/A, workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 have stated that they are unemployed since the date of termination of their services. However, workmen namely Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 have not stated that as to what efforts were made by them for securing the alternate employment and they have also not proved that they had sent applications to other managements for job after disengagement from the management. Moreover, the services of the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 were terminated by the management on 26.08.2003 and looking at the nature of work performed by aforesaid workmen, it cannot be said that they would have remained wholly unemployed during the period of disengagement of their services from the management. Moreover, in this case the management has not maintained any record in respect of workmen and the management had denied the relationship of employer and employees with Contd......
23the workmen. In the circumstances, instead of the order of reinstatement of workmen in duty it would be appropriate if the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 are compensated in terms of money. In the circumstances, it would be appropriate if the workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 are paid compensation calculated in terms of Section 25F of the I.D. Act, 1947 and they are also paid back wages @ 25% from the date of disengagement of their services from the management till date. The workmen Sh. Jiya Lal/WW1, Sh. Hari Shankar/WW6, Sh. Satya Prakash/WW7 and Sh. Nand Lal/WW3 shall also be entitled to a sum of Rs.5000/- (Rupees Five Thousand Only) each on account of litigation expenses under Section 11(7) of the I.D. Act, 1947. The workmen Sh. Bhola Nath, Sh. Anil Kumar, Sh. Ramjeet Yadav and Sh. Rajesh Yadav have failed to prove that there existed relationship of employer and employees between the parties hence, they are not entitled to any relief. Reference stands answered accordingly. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 24.01.2008.
(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS DELHI.
24ID No. 794/06 24.01.2008 Present:- Sh. Shobha Ram, AR for workman.
None for management.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room.
POLC/24.01.2008