Delhi District Court
4 vs St Hadimani on 20 March, 2009
1
IN THE COURT OF SHRI GIRISH KATHPALIA;
PRESIDING OFFICER; LABOUR COURT XIX;
KARKARDOOMA COURTS; DELHI
LIR NO.206/06
1.SH. RAM NATH
S/o SH. RAM AVTAR
2.SH. AJAY KUMAR GUPTA
S/o SH. BHARAT PARSAD GUPTA
3.SH. SHAMBHU NATH
S/o SH. RAGHU NATH SHAH
4.JITENDER GUPTA
S/o SH. MAHAVIR PRASAD GUPTA
5.NARESH KUMAR
S/o SH. BHAGWAN DASS
6.KISHORE KR. SHAH
S/o SH. KAPILDEV SHAH
7.SH. SUNIL KUMAR
S/o SH. NARAYAN PD. GUPTA
8.SANJAY KUMAR
S/o SH. CHANDRESHWAR SHAH
9.MAHATAM
S/o SH. SHIV NATH
10.NEERAJ
S/o SH. RAM IQBAL
11.UMESH KUMAR
S/o SH. KISHORE SINGH
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LIR NO. 206/06 Page 1 of 20 pages
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12.ARUN KUMAR
S/o SH. MAKHAN PATEL
13.AJAY KUMAR
S/o SH. RAJ MANGAL SINGH
14.SUDHIR KUMAR
S/o SH. SAURAJ SINGH
C/o PRAGATISHEEL
MAZDOOR SANGH,
DELHI PRADESH,
I161, KARAMPURA,
NEW DELHI15 ...WORKMEN
vs.
M/s CLIMAX KEY CHAIN,
17/103, GALI NO.3,
THAN SINGH NAGAR,
ANAND PARVAT,
NEW DELHI5
...MANAGEMENT
Date of reference:30.01.02
Date of taking up the matter for the first time: 11.12.07
Date of conclusion of arguments: 16.03.09
Date of award: 20.03.09
Ref.No. F.24 (3781)/2001.Lab/199599 dated 30.01.02
AWARD
1. On being satisfied as regards existence of an
industrial dispute between the parties, the Secretary (Labour)
Government of NCT of Delhi in exercise of powers conferred by
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LIR NO. 206/06 Page 2 of 20 pages
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Section 10(1)(c) and Section 12(5) of the Industrial Disputes Act
referred the present dispute to the Labour Court V for
adjudication, from where it was transferred to this court with
the following terms of reference:
"Whether the services of as per
annexure A attached 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/government
notifications and to what other relief
is he entitled and what directions are
necessary in this respect?"
Annexure A to the reference names 14 workmen, as named in
the case title above. But upon service of court notice, only one
of them, namely Mahatam filed a statement of claim seeking
reinstatement of his services with the management with
consequential benefits. Remaining 13 workmen named in the
reference opted not to proceed further.
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LIR NO. 206/06 Page 3 of 20 pages
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2. As pleaded by workman Mahatam, he had been working
with the management as Fittingman since the year 1984, his
last drawn monthly salary being Rs.1950/. When the workman
demanded statutory benefits like PF, ESI, appointment letter
and payslip etc. management got annoyed and terminated his
services illegally on 10.07.01. Despite service of demand notice
and intervention of labour authorities, management did not
reinstate services of the workmen. Ever since termination of
his services workman is unemployed. Hence, this reference.
3. Management in their written statement pleaded that
workmen was never employed with them at any point of time.
As pleaded by management, one Gajraj Tomar claiming
himself to be the general secretary of a union had been
pressuring the management by issuing frivolous demand
notices, so management filed a civil suit for permanent
injunction against Gajraj and other alleged workmen including
the claimant. But despite service of summons, defendants of
the said civil suit did not appear and were proceeded exparte.
Since there was no relationship of employer and employee
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LIR NO. 206/06 Page 4 of 20 pages
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between the management and the workman, claim of the
workman deserves to be dismissed, as per management.
4. Workman filed a rejoinder to reaffirm his claim contents.
My ld. predecessor framed the following issues:
1. Whether there existed the relationship of
workman and management between the
respondent and the claimant?
2. Relief in terms of refrence.
5. In support of their respective case, both sides examined one witness each. I have heard authorised representatives for both sides and perused the record. My issuewise findings are as under:
ISSUE NO.1
6. Workman Mahatam stepped into the box as WW1 to depose on oath the above mentioned contents of his pleadings. In his crossexamination, WW1 stated that he had no documentary evidence to show that he was employed with the management. As per WW1, he went to Tis Hazari Courts upon service of summons in the civil suit filed by his employer Sh. Rajender Kapoor and was accompanied with union leader _____________________________________________________________ LIR NO. 206/06 Page 5 of 20 pages 6 Gajraj Tomar but did not know whether the union leader had filed any written statement in the civil suit or not.
7. One of the partners of the management appeared in the box as MW1 to depose on oath the above mentioned contents of his written statement and placed on record a copy of civil suit plaint as Ex. MW1/1. In cross examination MW1 named his partner as Sh. Rajender Kapoor and stated that the management has been in existence since the year 2001, before which he was running a shop. MW1 stated that he did not know any Mahatam and did not file any case against Mahatam, on which he was confronted with Ex. MW1/1 in which name of Mahatam is shown as defendant no.11. MW1 stated that he had filed the civil suit since the defendants had been threatening to block his passage outside factory and used to assault him. He stated that there was no dispute between the management and the workmen as they had rejected demands of workmen only once or twice. He stated that all the workmen named in Ex. MW1/1 were brought to him by Sh. Gajraj Tomar, whom he gave Rs. 3,000/ for maintaining peace but he could _____________________________________________________________ LIR NO. 206/06 Page 6 of 20 pages 7 not say as to whether the money was paid to Gajraj Tomar by way of bribe or by way of dues of workmen.
8. In his crossexamination, MW1 stated that he had been maintaining appointment and attendance records of all the workers of his establishment and he could produce these records as well as wage registers for the period 19992002. Further cross examination of MW1 was deferred with directions to produce the said employment records.
9. During subsequent cross examination, MW1 placed on record as Ex. MW1/X1 only a wage register and that too for the period from 01.04.02 to 31.03.04 and stated that he had not brought any records prior to 01.04.02. Even thereafter despite repeated adjournments, management did not produce any of their employment records for the period from 19992002, as had been assured by MW1 in his first cross examination.
10. No other evidence was adduced.
11. On behalf of workmen it was argued that suit Ex. MW1/1 of the management specifically names Mahatam as defendant no.11 and as per Para6 thereof, Mahatam was in service of the _____________________________________________________________ LIR NO. 206/06 Page 7 of 20 pages 8 management as on 10.07.01. It was argued that overall cross examination of MW1 and pleadings of suit Ex. MW1/1 reflect that none of the defendants of civil suit were outsiders. It was argued that management is liable to face adverse inference for concealing their employment records despite directions.
12. Authorised representative for management argued that onus to prove relationship of masterservant lies on the workman only but no evidence was adduced in that regard. It was argued that as per plaint Ex. MW1/1, Mahatam was an employee of Jai Maa Moulding and defendants of the suit did not file any written statement claiming themselves to be employees of the respondent management.
13. It is trite position of law that it is for the workman to prove that he was employed with the management and had been in continuous service for not less than one year as defined and explained under section 25B of the Industrial Disputes Act. In the case of RANGE FOREST OFFICER vs ST HADIMANI, AIR 2002, SC 1147, Hon'ble Supreme Court held that in the absence of proof of salary or wages or record of appointment or _____________________________________________________________ LIR NO. 206/06 Page 8 of 20 pages 9 engagement, mere affidavit of the workman as regards his having worked with the management cannot be regarded as sufficient evidence. In the case of AUTOMOBILE ASSOCIATION OF UPPER INDIA vs PO LABOUR COURT II, 2006 LLR 851 Hon'ble Delhi High Court held that the burden of proof of establishing the relationship of employer and employee lies on the person who claims for the same and can be proved either by production of appointment letter or written agreement or by circumstantial evidence in the nature of attendance register, salary register, leave record or membership of ESI or provident fund. As held by Hon'ble Delhi High Court in the case of DHARAMVEER vs ORIENTAL BANK OF COMMERECE, 145(2007) DLT 793, where relationship of employeremployee is denied by the management, it is for the workman to prove the same by adducing cogent evidence.
14. In the case of ALLORA ELECTRIC & CABLE COMPANY vs SHIVCHARAN & BROS., 72 (1998) DLT 761 Hon'ble Delhi High Court held that a party in possession of the best evidence is under a duty to produce the said evidence _____________________________________________________________ LIR NO. 206/06 Page 9 of 20 pages 10 irrespective of the question as to on whom the burden of proof lies.
15. Hon'ble High Court of Delhi in the case of AUTOMOBILE ASSOCIATION OF UPPER INDIA vs. POLC II & ANOTHER, 2006 LLR 851 held thus:
"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 records, deposit of provident fund contribution and employees state insurance contribution etc. The same can be produced and proved by the workman or he can call upon and cause 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 cause _____________________________________________________________ LIR NO. 206/06 Page 10 of 20 pages 11 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."
16. Most recently, in the case of SITA RAM vs MOTILAL NEHRU FARMERS TRAINING INSTITUTE, 2008 II LLJ 688(SC), Hon'ble Supreme Court upheld the adverse inference drawn by the labour court (though not explicitly) against the management for concealment of best evidence in the form of statutorily maintained records like wage sheets, provident fund records and other documents.
17. Falling back to the present case, as described above, it was indeed for the workman to prove the relationship of masterservant between the parties. The same could be done by him by producing either his appointment letter or identity card or wage slip or any such documentary record. But workman admitted that he had no documentary evidence in his possession. Partner of the management in his cross _____________________________________________________________ LIR NO. 206/06 Page 11 of 20 pages 12 examination specifically admitted that he could produce the employment record for the period 19992002; management never took a stand that employment records for the said period did not exist. Despite that management did not produce their employment records in the further cross examination of MW1. Even subsequent thereto management neither produced their employment records nor advanced any explanation. Management deliberately and with malafide concealed the best possible evidence from this court. MW1 contradicted himself by first stating that the management came into existence in the year 2001 and subsequently stating that he could produce the employment records of the management from the year 1999 to 2002. I find it a fit case to draw adverse inference against the management to the effect that had the management produced their employment records, the same would have reflected the workman Mahatam as their employee since the year 1984 and his last drawn monthly salary of Rs. 1950/, as pleaded by workman.
18. So far as the management's argument that as per Ex. _____________________________________________________________ LIR NO. 206/06 Page 12 of 20 pages 13 MW1/1 Mahatam was employee of Jai Maa Moulding is concerned, these are the pleadings of the management in civil court and not the pleadings of claimant workman. Nothing prevented the management to produce records of Jai Maa Moulding, whose proprietor is brother and co plaintiff in suit of MW1. So far as non filing of written statement in civil suit is concerned, MW1 himself explained having paid Rs.3,000/ to the union leader Gajraj Tomar for "maintaining peace".
19. In view of above discussion, issue no. 1 is decided in favour of workman and it is held proved that workman Mahatam was employee of the management.
ISSUE NO.2
20. In view of above findings, it is clearly established that services of the workman were terminated by the management only. Admittedly, termination of services of the workman by the management was not as a punishment inflicted by way of disciplinary action.
21. Since no notice or salary in lieu thereof and compensation was paid, termination of services of the _____________________________________________________________ LIR NO. 206/06 Page 13 of 20 pages 14 workman by the management was clearly in violation of section 25F of the Industrial Disputes Act and hence illegal and unjustifiable.
22. As such, issue no. 2 is decided in favour of the workman and it is held proved that services of the workmen were terminated by the management illegally and unjustifiably.
23. Then comes to the question of relief to be awarded to the workman.
24. In the case of GENERAL MANAGER, HARYANA ROADWAYS vs RUDHAN SINGH, AIR 2005 SC 3966, Hon'ble Supreme Court held as under:
"8. There is no rule of thumb that in every case where the industrial tribunal gives a finding that the termination of services was in violation of Section 25F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e. whether after proper advertisement of the vacancy or inviting applications from employment _____________________________________________________________ LIR NO. 206/06 Page 14 of 20 pages 15 exchange, nature of appointment, namely whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him, he may not be in a position to get another employment."
(emphasis supplied)
25. In the case of J.U.AKTHAR vs THE MANAGEMENT OF M/S MARKFED AGRO, 2006 VIII AD (DELHI) 33, Hon'ble Delhi High Court held as under:
"23. In view of the aforenoticed principles, once the industrial adjudicator had arrived at a finding that the termination of the services _____________________________________________________________ LIR NO. 206/06 Page 15 of 20 pages 16 of the petitioner was contrary to law, he would have normally become entitled to reinstatement into service. However, based on the statement made on his behalf, the industrial adjudicator considered award of compensation. If the workman had been reinstated into service, the corollary would have been a direction to pay full back wages to the workman. This is so because no material or evidence was placed before the industrial adjudicator to the effect that the workman was gainfully employed."
26. Most recently, in the case of NOVARTIS INDIA LIMITED vs STATE OF WEST BENGAL, 2009 LLR 113, Hon'ble Supreme Court held as under:
"19. There can, however, be no doubt whatsoever that there has been a shift in the approach of this court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that _____________________________________________________________ LIR NO. 206/06 Page 16 of 20 pages 17 the workman was gainfully employed during interregnum period was on the employer. This court, in a number of decision opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workman keeping in view the provisions contained in Section 106 of the Evidence Act, 1972.
This court in the matter of grant of
back wages has laid down certain
guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with articles 14 and 16 of the Constitution of India in cases of public employment etc.........
37.Back wages in a situation of this
nature had to be granted to
respondents by way of compensation.
If the principle of grant of
compensation in a case of this nature is to be applied, indisputably having _____________________________________________________________ LIR NO. 206/06 Page 17 of 20 pages 18 regard to the fact situation obtaining herein, namely, that they were doing a specialised job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted.
It was further more not expected that
they would get an alternative
employment as they were
superannuated. Burden of proof was
undoubtedly upon the workmen. The
said burden, however, was a negative
one. Once they discharged their
burden by deposing before the tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf."
27. Falling back to the present case, as described above, management is liable to an adverse inference to the effect that had they produced their employment records, the same would have shown the workman Mahatam as their employee since _____________________________________________________________ LIR NO. 206/06 Page 18 of 20 pages 19 the year 1984, his last drawn monthly salary being Rs. 1950/ as pleaded by him. Accordingly, tenure of workman's service with the management is taken to be approximately 17 years. And comparing the 17 years period of association with eight years period of disassociation between the parties, irrespective of conduct of the management aimed at frustrating the workman in litigation, in my considered view, relief of reinstatement of services of the workman with consequential benefits would be an appropriate relief.
28. Keeping in mind the nature of job of the workman Mahatam, length of his service with the management and other factors as described above, in my considered view, workman Mahatam is also entitled to 50% back wages. RELIEF
29. In view of above findings, it is held that workman Mahatam is entitled to reinstatement in service with the management with continuity and all consequential benefits and 50% back wages with effect from 10.07.2001.
30. So far as remaining workmen named in the _____________________________________________________________ LIR NO. 206/06 Page 19 of 20 pages 20 reference are concerned, they are not entitled to any relief against the management.
31. Reference accordingly stands answered. Copies of this award be sent for publication and file be consigned to records leaving the parties bear their own cost. ANNOUNCED IN THE OPEN COURT ON 20th MARCH 2009 (GIRISH KATHPALIA) ADDITIONAL DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER, LABOUR COURTXIX, KARKARDOOMA COURTS, DELHI.
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