Delhi District Court
Sh. Shyam Kumar vs M/S Sidharth Timber Trading Co on 21 August, 2008
ID No. 90/2006/2005
1
IN THE COURT OF SH. S.K. KAUSHIK,
PRESIDING OFFICER LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
ID No. 90/2006/2005
BETWEEN
Sh. Shyam Kumar
S/o Sh. Babu Ram
C/o General Mazdoor Lal Jhanda Union
B - 1/A, Nathu Colony East
100 Foota Road,
Delhi - 110093. .........Workman
AND
M/s Sidharth Timber Trading Co.
1/3744 Loni Road, Shahdara,
Delhi - 110032 .........Management
Date of institution : 23.05.2005
Date of argument : 06.08.2008
Date of award : 21.08.2008
AWARD
1. An Industrial Dispute between the management of M/s Sidharth
Timber Trading Co. 1/3744 Loni Road Shahdara Delhi - 110032 and Sh.
ID No. 90/2006/2005
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Shyam Kumar S/o Sh. Babu Ram C/o General Mazdoor Lal Jhanda
Union B - 1/A, Nathu Colony East 100 Foota Road, Delhi - 110093
claiming to be its workman was referred by Secretary (Labour),
Government of National Capital Territory of Delhi for adjudication in
exercise of powers conferred by Section 10 (1) (c) and 12 (5) of the
Industrial Dispute Act 1947 (in short Act) vide Order No. F.24 (2721)/
2004 - Lab./ 2808 - 12 dated 09.02.2005 with the following terms of
reference:
"Whether the services of Sh. Shyam Kumar S/o Sh. Babu
Ram have been terminated by the management illegally
and / or unjustifiably and if so, to what sum of money as
monetary relief alongwith consequential benefits in terms
of existing laws/ Govt Notification and to what other relief
is he entitled and what directions re necessary in this
respect?
2. Notice of the reference was issued to the workman. Workman
appeared and filed statement of claim alleging that he was working as
carpenter with the management w.e.f. 15.3.1989 and his last drawn
wages were Rs.6000/- per month; that he was performing his duties to
the entire satisfaction of the management but management was not
ID No. 90/2006/2005
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providing legitimate facilities and it used to obtain his signatures on blank
papers and vouchers and management did not maintain proper record of
his service and also did not issue appointment letter, leave book and did
not provide ESI benefit; that he became a member of General Mazdoor
Lal Jhanda Union for raising his demand for legal facilities through union
due to which management got annoyed; that on 27.1.2004 he met with
an accident during the course of his employment due to which he
received serious injuries and fracture in his right hand and remained
under treatment of Shanti Nursing Home, Meet Nagar, Delhi but the
management did not bear expenses of his treatment and he had to
spend his own Rs.5000/- for the treatment; that after he was declared fit
to resume his duty on 2.3.2004, he reported for duty on 3.3.2004
alongwith fitness certificate but he was refused duty and management
told him that his services were no more required; that management did
not pay his earned wages from 1.1.2004 to 3.3.2004 and terminated his
service in violation of Section 25F of the Act; that he sent demand
notice dated 3.3.2004 through registered AD post vide postal receipt
number 324 praying for his reinstatement with full back wages including
unpaid wages and treatment expenses and with all other consequential
ID No. 90/2006/2005
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benefits to which management did not pay any heed; that he made a
complaint through union to Assistant Labour Commissioner on 3.3.2004
regarding illegal termination of his service and his other grievances; that
he filed statement of claim before the conciliation officer and
management filed written statement to his claim and he filed rejoinder to
the written statement of the management but conciliation proceedings
failed; that he searched for alternate employment but could not get any
service and so he is unemployed since 3.3.2004. He claimed that he is
entitled to reinstatement with full back wages and continuity of service
including payment of his unpaid wages and unpaid medical expenses.
3. Notice of the claim was issued to the management. Management
appeared and sought adjournment to file written statement. However,
management did not file written statement and it absented from the
proceedings. Ld. Predecessor passed ex.parte award dated 6.9.2006 in
favour of the workman. Thereafter management moved an application
for setting aside ex.parte award. Ld. Predecessor set aside the ex.parte
award vide order dated 14.3.2007 and reference was restored to its
original number.
ID No. 90/2006/2005
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4. Management contested the claim by filing written statement through
its proprietor Ms. Usha Jain. Management alleged in the written
statement that claimant was never employed by the management and so
relationship of employer and employee did not exist. Management also
alleged that since claimant was not in its employment and so question of
maintaining his service record did not arise and claimant has filed a false
claim. Management stated that it never violated any provision of law
and claimant has filed a false and frivolous claim. Management refuted
each and every claim of the claimant and prayed for dismissal of claim.
5. In rejoinder to the written statement claimant controverted the
averment as contained in the written statement and reaffirmed the
averments as stated in the statement of claim.
6. From the pleadings of the parties following issues were framed for
trial:
1. Whether there existed relationship of workman and
employer between the parties? OPW.
ID No. 90/2006/2005
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2. As per terms of reference. OPW
3. Relief.
7. Both parties were directed to lead evidence on the issues by way of
affidavit. Claimant filed his affidavit Ex.WW1/A. He relied upon ten
documents Ex.WW1/1 to Ex.WW1/10. Claimant also filed affidavit
Ex.WW2/A of WW-2 Ravinder Kumar Panchal who in his affidavit
deposed that he was in the employment of the management of M/s
Sidharth Timber Trading Company and claimant Shyam Kumar was his
co-worker. Both these witnesses were cross examined by authorized
representative for management.
8. Management filed affidavit Ex.MW1/A of MW1 Sh. Hari Kishan Jain
Manager of the management. Management also filed affidavit of MW-2
Manoj Jain son of proprietor Ms. Usha Jain. Both these witnesses of the
management were cross examined by authorized representative of
workman.
9. I have heard Ld. Authorised Representatives (hereinafter referred to
ID No. 90/2006/2005
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as AR) for parties and have gone through the record. Findings on the
issues are as under :
ISSUE NO. : 1
10. AR for management contended that claimant has claimed himself to
be an employee of the management but he has not placed any
document on record in support of his claim and so he has failed to
establish the relationship of servant and master between him and the
management. In reply to this submission AR for workman submitted that
both management witnesses deposed that they were not maintaining
any record which means that when management was not maintaining
any record then the claimant could never produce any document. He
stated that the only document which the claimant had with him is a bank
passbook Ex.WW1/1 and the account of the claimant was opened in
Vijaya Bank at the address of the management which shows that the
claimant was in the employment of the management. He also submitted
that the claimant examined co-worker Ravinder Kumar Panchal as WW-
ID No. 90/2006/2005
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2 in support of his claim of being the workman of the management and
from his testimony it stands proved that claimant was in the continuous
employment of the management. He also submitted that management
misled the conciliation officer as well as this court because in conciliation
proceedings written statement was filed by the management through
Sh. Hari Kishan Jain who claimed himself to be the proprietor of the
management which is clear from the the photocopy of the written
statement Ex.MW1/W1 but the same Hari Kishan Jain who had claimed
to be proprietor of the management business did not file written
statement before the court as the written statement has been filed by
Ms. Usha Jain claiming to be proprietor of the management and Sh. Hari
Kishan Jain appeared as a witness of the management by filing his
affidavit Ex.MW1/A wherein he deposed that he is the husband of Ms.
Usha Jain and manager of the management business. He submitted
that this conduct of Sh.Hari Kishan Jain shows that he is not a reliable
and trust-worthy person as he has mislead the conciliation officer as well
as this court.
11. Consideration of contentions of AR for parties requires appreciation
ID No. 90/2006/2005
9
of testimonies of the witnesses of both parties which I proceed to
discuss.
12. First coming to the contention of AR for management that workman
has failed to establish relationship of employer and employee between
the parties by not producing any document. For consideration of this
contention, testimony of management witnesses needs to be discussed.
13. MW-1 Sh. Hari Kishan Jain during cross-examination deposed that
Sidharth Timber Trading started running around the year 1997-98. He
deposed that they purchase timber and sell to the customers; they do
cutting and pressing of the timbers; besides they make doors, windows
and other similar items. He deposed that they engaged 2-3 labours for
cutting of timber; engaged one carpenter and one labour for making
windows and chaukhat and for loading and unloading and they engaged
casual labour. He deposed that they did not maintain the attendance
register, payment register for the workers and they never issued any
appointment letter to any worker. He also deposed that one employee
was working with them during the period from May 1995 to August 1996
ID No. 90/2006/2005
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but he could not recollect his name. He denied the suggestion that
workers namely Vinod, Prem Pal, Pappu-I, Pappu-II, Babloo-I, Babloo-II,
Sita Ram, Ajay, Sanjay, Rajesh, Ravinder, Shyam Kumar, Sunder, Kalua
used to work with the management. He deposed that management
never engaged more than one worker at a time and so ESI was not
applicable. He denied that workman Shyam Kumar had been working
with them.
14. Next witness of the management is MW-2 Manoj Kumar, son of the
proprietor. During cross-examination he deposed that he used to visit
the firm since his childhood. He stated that during his visit he used to
occasionally see one or two workers only. He stated that he did not
know the names of the workers who used to work with the management
from 1990 to 2004. He denied that he accompanied the workman to
Vijaya Bank when he opened his account Number SB-4947. He stated
that he did not know about the accident of the workman on 27.1.2004.
He denied that Shyam Kumar used to work with the management since
15.3.1989 as a carpenter. He denied that Ravinder Kumar used to work
with the management from 1995 to August 1996.
ID No. 90/2006/2005
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15. A careful perusal of the deposition of MW1 and MW2 shows that
MW1 deposed that one employee was working with them during the
period from May 1995 to August 1996 but he avoided to give his name
by saying that he did not recollect his name but MW2 denied the specific
suggestion of the workman that Ravinder Kumar (Panchal) used to work
with the management during the period from 1995 to 1996. Emphatic
denial of this suggestion by MW2 shows that he had the knowledge as to
who was their worker during this period but still MW2 withheld the name
of that employee. The tenor and texture of the deposition of MW1 and
MW2 during cross examination shows that both these witnesses of the
management, thinking that their truthful replies would put the
management on back foot, elected to put the management on the front
foot by giving replies in the manner noted above. It appears that
management has drawn inspiration from the dictum: nothing is unfair in
love and war. I am fortified in this conclusion from the fact that MW1 Sh.
Hari Kishan Jain claimed himself to be the proprietor of the management
before the Conciliation Officer but before this court MW1 claimed himself
to be the Manager of the management by stating that the proprietor of
ID No. 90/2006/2005
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the management was Ms. Usha Jain, which was not disputed by the AR
for the management. There is no reasonable explanation of the
management as to how MW1 Hari Kishan Jain took different and
contradictory stand before different forums.
16. So far as the testimony of workman regarding the existence of the
relationship of employer and employee between the parties is
concerned, his testimony does not help in establishing this relationship
because he could not produce any document except bank pass book
showing opening of his savings account at the address of the
management, in support of his claim of being the employee of the
management. Proof of existence of relationship of employer and
employee between the parties varies from case to case and in this
regard it is useful to refer to the judgment reported as Indian Overseas
Bank Vs. I.O.B. Staff Canteen Workers' Union: 2000 Lab. I.C. 1495,
wherein Their Lordships in Para 20 of the judgment observed as under:
"The standards and nature of tests to be applied
for finding out the existence of Master and
ID No. 90/2006/2005
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Servant relationship cannot be confined to or
concretised into fixed formula(s) for universal
application, invariably in all class or category of
cases. Though some common standards can be
devised, the mere availability of anyone or more
or their absence in a given case cannot be itself
be held to be decisive of the whole issue, since it
may depend upon case to case and the
peculiar device adopted by the employer to
get his needs fulfilled without rendering him
liable. That being the position, in order to
safeguard the welfare of the workmen, the veil
may have to be pierced to get at the realities.
Therefore, it would be not only impossible but
also not desirable to lay down abstract
principles or rules to serve as a ready
reckoner for all situations and thereby attempt
to compartmentalise and peg them into any
pigeonhole formulas, to be insisted upon as
proof of such relationship. This would only
help to perpetuate practising unfair labour
practices than rendering substantial justice to
the class of persons who are invariably
exploited on account of their inability to
ID No. 90/2006/2005
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dictate terms relating to conditions of their
service." (Emphasis supplied in bold)
17. In the judgment reported as Ravindra Baburao Ambolkar Vs.
Gujarat Tea Canteen and another:1996 LLR 40, the principle of law
laid down by Their Lordships is that a workman can establish the
relationship of employer and employee by examining a co-worker. In
the present case claimant has examined WW-2 Ravinder Kumar
Panchal who claimed that he was in the employment of the management
as Carpenter during May 1995 to August 1996 in the establishment of
M/s Sidharth Timber Trading Co. and claimant Shyam Kumar was his
co-worker.
18. Point for consideration is whether testimony of WW-2 Ravinder
Kumar Panchal inspires confidence. In para 1 of his affidavit WW-2
deposed that he was appointed by the management in May 1995 and his
last drawn wages were Rs.1800/- per month. In para 2 of his affidavit
he deposed that management was not providing legal benefits like
appointment letter, ESI card, Leave book, pay slip and other legal
ID No. 90/2006/2005
15
benefits and management was not providing such benefits to any
worker. In para 3 of his affidavit he deposed that at that time Shyam
Kumar S/o Babu Ram (claimant in this case) was already in the
employment of the management. In para 4 he deposed that Shyam
Kumar was working as Carpenter. In para 6 he deposed that he left his
service in August 1996 and at that time Shyam Kumar was still in the
employment of the management.
19. During cross-examination WW2 deposed that he is carpenter by
profession and was working at Bhajanpura in Mahipal Timber Trader as
trained carpenter from 1999-2002. He stated that from 2003 to 2007 he
worked with Saiffuddin thekedar at Laxmi Nagar. He deposed that he
got training in carpentary for six months in 1993 and he worked with
Sidharth Timber Store from May 1995 to August 1996. He deposed that
he did not remember the name of the person incharge of M/s Sidhardh
Timber Store but he remembered the name of son of the Sethji and his
name was Manoj and both of them used to sit at the said store. He
stated that he was introduced to Sidharth Timber Store by his elder
brother Virender Kumar who was working in the same locality at Gupta
ID No. 90/2006/2005
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Timber Company and his brother also worked with Sidharth Timber
Store alongwith him. He stated that no document of service was
prepared. He stated that he did not remember telephone number and
address of Sidharth Timber Store. He deposed that he never read the
board fixed at the Sidharth Timber for knowing its address. He deposed
that the words written on the Board were Sidharth Timber Store in Hindi.
He deposed that he could identify Sethji of this store. He denied that he
never worked with this management. He deposed that he did not
receive any letter or any other document at the address of the
management and he never received a telephonic call at his work place.
He deposed that he left the job because he got better job opportunity in
other shop and he joined Vardhman Timber Trader at Loni Road on
monthly wages of Rs.2200/- which was Rs.400/- more than what he was
getting at Sidharth Timber. He stated that he did not know about the
accident of Shyam. He deposed that though he left the job with Sidharth
Timber but many persons known to him might still be working in the
same market and persons working at the material time with this
management can identify him as a worker of Sidharth Timber Store. He
deposed that at that time Sita Ram, Kalua, Pappu, Shyam Kumar,
ID No. 90/2006/2005
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Sunder etc. were working in Sidharth Timber Store and if any of them is
called to the court then they can identify him as a worker of Sidharth
Timber Store.
20. It is significant to note that no suggestion was given to WW-2 that
workers namely Sita Ram, Kalua, Pappu, Shyam Kumar, Sunder were
not working with M/s Sidharth Timber Store. AR for management
submitted that testimony of WW-2 can be relied upon only when first he
establishes that he was in fact a workman of M/s Sidharth Timber
Store. He further submitted that since no documentary evidence has
been led by WW-2 and so his oral testimony cannot be believed. I have
carefully considered this contention. So far as the documentary
evidence of WW-2 in support of his claim of being the co-worker of
claimant Shyam Kumar is concerned, WW-2 deposed that management
was not giving any legal facility including appointment letter to any
workman and this deposition was not countered even by giving a
suggestion to the contrary. Obviously when management did not
dispute the deposition of WW-2 that management did not provide any
document to any worker then his testimony cannot be brushed aside if
ID No. 90/2006/2005
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he could not produce any document in support of his deposition that he
was an employee of the management during the period from May 1995
to August 1996 as Carpenter. Management could create a doubt on the
testimony of WW-2 by producing MW-1 Sh. Hari Kishan Jain for
identification to test the veracity of his deposition that he could identify
the Sethji. WW-2 also deposed that the son of Sethji was Manoj Jain
which is a fact as management has examined Sh. Manoj Jain son of the
proprietor as MW-2. Though merely from the fact that a person has
some knowledge about son of the proprietor and about identity of the
proprietor, such a person cannot be termed as employee of that
management but then management has to bring some material on
record to show that such a person had such knowledge because of
some other circumstances may be that he was the customer or was
casually visiting the management in the capacity other than its workman
but no such material was elicited by the management during cross-
examination of WW-2. In my considered view the tenor and texture of
the deposition of WW-2 during cross-examination shows that his
deposition that claimant Shyam Kumar was already in the employment
of the management when he joined this management in May 1995 and
ID No. 90/2006/2005
19
that claimant Shyam Kumar was still in the employment of the
management when he left his job in August 1996 has a ring of truth and
in my considered view his testimony inspires confidence sufficient to
hold that claimant Shyam Kumar has discharged the initial burden of
adducing evidence in support of his claim of being the workman of the
management.
21. After initial discharge of the onus by claimant, the burden to adduce
evidence shifted on to the management to show that claimant Shyam
Kumar and WW-2 Ravinder Kumar Panchal were not the employees of
the management. Settled law is that the burden to prove an issue does
not shift but burden to adduce evidence keeps on shifting and in this
regard reference can be made to the judgment reported as Ramendra
Narayan Deb Vs. Eighth Industrial Tribunal & Ors.: 45 FJR 529
wherein Their Lordship referred to the following observation by the Privy
Council in Kumbhan Lakshmanna Vs. Tangirala Venkateshwarlu:
A.I.R. 1949 P.C. 278, at page 537 of the judgment:
ID No. 90/2006/2005
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"Whether no difficulty arises in arriving at a
conclusion....... the question respecting onus
recedes into the background, but where the Court
finds it difficult to make up its mind the question
comes to the foreground and becomes the deciding
the factor.......... what is called the burden of
proof on pleading should not be confused with
the burden of adducing evidence which is
described as 'shifting'. (Emphasis supplied in
bold)"
22. Management could rebut the evidence of WW-2 Ravinder Kumar
Panchal and thereby claim of the claimant regarding the existence of
relationship of employer and employee at least by producing its record
to show that it never employed at any time any person by the name of
Shayam Kumar, Ravinder Kumar Panchal, Sita Ram, Pappu, Kalua,
Sunder etc. and in my considered view by doing so management could
have discharged the onus of adducing evidence which came on to it due
to the testimony of WW-2 Ravinder Kumar Panchal. AR for
management submitted that management was not maintaining any
record and so such record could not be produced by the management.
ID No. 90/2006/2005
21
AR for workman submitted that when management was dealing in the
trade of timber and was manufacturing doors, chaukhat, windows etc.
then it must have been employing sufficient number of workmen and
management deliberately did not produce the record for defeating the
legitimate claim of the claimant. Point that arises for consideration from
these rival contentions, is whether it appears that management was in
fact maintaining some record and whether it deliberately did not produce
the record and whether under such circumstance an adverse inference
can be drawn against the management for not producing its record. I
proceed to consider this point.
23. Claimant in his claim petition alleged stated that management used
to procure his signatures on blank papers and vouchers and it was not
maintaining proper record and did not issue appointment letter, leave
book, ESI etc. Management in written statement has stated that claimant
was never in its employment and so question of maintaining his
record did not arise. (emphasis supplied in bold) It is significant to note
that management did not state in the written statement that it was not
maintaining the record of its employees. It is also significant to note that
ID No. 90/2006/2005
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in para 8 of the written statement management stated that it never
violated any provision of law. As per various labour laws an employer is
under legal obligation to maintain the necessary record of its employees
like attendance register, wages register etc. In my considered view the
averment by the management in para 8 of the written statement that it
was not violating any provision of law implies that it was maintaining the
necessary record of its employees. What flows from this pleading of the
management is that it was in fact maintaining the record of the persons
who were in its employment and it did not maintain any record of
claimant Shyam Kumar because he was not it's employee. If this is the
inference flowing from the pleadings of the management then obvious
conclusion is that the management did not deliberately produce it's
record before this court and deposition of management witness that it
was not maintaining any record cannot be considered as a truthful
deposition and even otherwise it is beyond pleadings.
24. Now coming to the point whether an adverse inference can be drawn
against the management for not producing its record before the court. In
a judgment reported as Gopal Krishnaji v. Mohd. Haji Latif & Ors.,
ID No. 90/2006/2005
23
AIR 1968 SC 1413 Their Lordships held as under :
"Even if the burden of proof does not lie on a
party the Court may draw an adverse inference if
he withholds important documents in his
possession which can throw light on the facts at
issue. It is not, in our opinion, a sound practice
for those desiring to rely upon certain state of
facts to withhold from the Court the best evidence
which is in their possession which could throw
light upon the issues in controversy and to rely
upon the abstract doctrine of onus of proof."
25. In a judgment reported as H.D. Singh Vs. Reserve Bank of India
and Others: (1985) 4 SCC 201, the question that came up for
consideration before Their Lordships was whether the workman had
proved that he had worked for more than 240 days from July 1975 to
July 1976. The respondent bank in the affidavit stated that appellant had
not worked for more than 240 days from July 1975 to July 1976. Appellant charged the bank with having tampered with the record. Their ID No. 90/2006/2005 24 Lordships observed that appellant wanted the relevant record to be filed but to contradict his appellant's case the respondent bank did not produce it's record and thereafter the respondent bank filed an affidavit stating that the attendance register had been destroyed. Under these facts and circumstances Their Lordships held that in absence of any evidence to the contrary they had necessarily to draw the inference that the appellant's case that he had worked for more than 240 days from July 1975 to July 1976 was true.
26. In a judgment reported as 2004-III-LLJ-760 referred by Their Lordships in the judgment reported as Automobile Association of Upper India vs. P.O. Labour Court-II and Another : 2006-III-LLJ-929 it was held :
"A Court of law even in a case where provisions of the Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against ID No. 90/2006/2005 25 his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-
production may be found to be justifiable on some reasonable grounds...."
27. In view of the principle of law laid down in the here-in-above noted judgments, point for consideration is whether, under the facts and circumstances of this case, this court can draw an adverse inference against the management for not producing its record. The ground on which an adverse inference might not be drawn is that intentional non-
ID No. 90/2006/2005 26 production of the record was justified on some reasonable ground. Now point for consideration is whether it appears that the record was not produced by the management due to some reasonable ground. The ground canvassed during cross-examination by MW-1 was that management was not maintaining any record but the same does not flow from the pleadings of the management in its written statement which means that no reasonable ground has been shown for not producing its record before the court. Accordingly under these facts and circumstances I draw an adverse inference that management deliberately did not produce it's record and had it produced its record then it would have proved that claimant Shyam Kumar was in its employment. In view of this adverse inference drawn against the management, the photocopy of the bank account Ex.WW1/1 relied upon by the claimant which shows that he opened this account in Vijaya Bank, Loni Road branch on 7.3.2000 indicating his address as Sidharth Timber Store, 1/3744, Loni Road, Delhi becomes a significant material in his favour and in my considered view this is a sufficient documentary material of the claimant under the facts and circumstances of the case as established on record when considered in the light of the testimony of ID No. 90/2006/2005 27 WW-2 Ravinder Kumar Panchal.
28. So far as the contention of the AR for management that there is no evidence of the claimant in support of his claim of being the employee of the management is concerned, here it is useful to refer to the judgment of Apex Court reported as Food Corporation of India Workers Union Vs. The Food Corporation of India and Another: 1996 (74) FLR 1893 (SC) wherein the principle of law laid down by Their Lordships is that for adjudication of the labour disputes by the Labour Tribunals there can be 'material' and not necessarily 'evidence'.
29. In view of foregoing discussion I hold that the claimant has brought on record reliable and trustworthy material in support of his claim of being the employee of the management. I accordingly hold that it stand established that the claimant was in the employment of the management. This issue stands decided accordingly in favour of the claimant.
ID No. 90/2006/2005 28 ISSUE NO. : 2
30. This issue is as per the terms of the reference of the industrial dispute. The industrial dispute as per the reference is the termination of the service of the claimant and the legality or illegality of the termination of his service. Claimant has alleged that management illegally terminated his service when on 03.03.2004, after being declared fit to join his duty, he was not allowed by the management to join his duty. Management has denied this claim on the ground that the claimant was not its workman but this plea of the management stands falsified in view of the finding on issue no.1, regarding the existence of relationship of employer and employee between the parties, in favour of the claimant. When existence of relationship of employer and employee between claimant and the management stands proved and claimant has also deposed that his service was terminated but this claim is denied by management by alleging that he was not it's workman then there can be no reason to disbelieve the claimant that his service was terminated by the management. I therefore hold that it stands established that service of the claimant was terminated by the management on 03.03 2004.
ID No. 90/2006/2005 29
31. Now point for consideration is whether termination of the service of the claimant was illegal and /or unjustified. Termination of service is illegal when no retrenchment compensation is paid to the workman. However, a workman is entitled to payment of retrenchment compensation only when he has been in continuous service of the management for one year. As per Section 25 B of the Act, a workman is deemed to be in continuous service of one year if during a period of 12 calender months preceding the date of termination of his service, he worked for 240 days. Settled law is that it is for the workman to establish that he so worked for 240 days. Here it is useful to refer to the judgment reported as Chief Engineering Irrigation Vs. Kamlesh & Others 1996 I CLR 1128 wherein Their Lordships held that once it is found that workman is in continuous service then it is wholly immaterial whether he has worked for particular number of days in a particular year and workman need not show that he worked during all the period, he has been in the service of the employer, 240 days in a year.
32. Now point for consideration is whether workman was in continuous ID No. 90/2006/2005 30 service of the management. WW2 Ravinder Kumar Panchal deposed that he joined the management as Carpenter in may 1995 and workman Shyam Kumar was Carpenter of the management even prior to him and Shyam Kumar was still in the service of the management when he left his job in August 1996. The photocopy of the bank pass book shows that workman opened his savings bank account in Vijaya Bank at the address of the management on 07.3.2000 which means that it stands proved that at least from 1995 to March 2000 workman remained in continuous service of the management. Workman in para 4 of his affidavit deposed that on 27.1.04 when he was on duty with the management he suffered an accident due to which his right hand got fractured and he was treated in Shanti Nursing Home and Maternity Centre, Meet Nagar, Delhi. There is no serious challenge to this deposition of the workman by the management that he met with an accident on 27.1.04. During cross examination of the workman management merely disputed the place of this accident and also disputed the claim of the workman of being employee of the management by suggesting that he did not report to police about this accident because he was not in the service of the management.
ID No. 90/2006/2005 31 Workman denied this suggestion of the management. However in my considered view non reporting of the accident by workman to the police does not give any benefit to the management because according to the workman he himself suffered this accident and he has not alleged any negligence on the part of the management and reporting of this incident to police would have been necessary if this accident had been caused due to negligence of the management. The factum of the accident suffered by the workman is corroborated from the prescription slip dated 27.1.2004 of the doctor of Shanti Nursing Home Ex.WW1/3 and the medical certificate Ex.WW1/4 which show that Shyam Kumar remained under treatment for fracture in the right hand from 27.1.04 to 01.3.04 which were not challenged by the management during cross examination of the workman. Nothing material was elicited during cross examination of the workman which could create a doubt on his deposition that he suffered this accident during his employment with the management. Thus from the medical papers Ex.WW1/3 and WW1/4 it is clear that workman Shyam Kumar was in the service of the management till 27.1.04. Thus it stands established that workman remained in continuous service of the management from 1995 to 27.1.2004. By ID No. 90/2006/2005 32 relying upon the judgment in Chief Engineering Irrigation Vs. Kamlesh's case (supra), I hold that it was not necessary for the workman to prove that he had worked for 240 days during a period of 12 calender months just preceding the date of termination of his service. Thus under these facts and circumstances management was required to comply with provisions of Section 25F of the I.D. Act but management obviously did not comply with this provision. I, therefore, hold that termination of service of the workman was illegal. Accordingly this issue is decided in favour of the workman and against the management. RELIEF
33. When illegal termination of the service of a workman stands established then point for consideration is as to what relief is to be granted to the workman. In a judgment reported as Indian Hydraulic Industries Pvt. Ltd. Vs Kishan Devi and Bhagwati Devi and Others:
ILR (2007) I Delhi 219 Their Lordships in paragraph 5 of the judgment observed that it is now settled law that even if the termination of a ID No. 90/2006/2005 33 person is held illegal, Labour Court is not supposed to direct the reinstatement alongwith full back wages and the relief can be moulded according to the facts and circumstances of each case. In my considered view award of compensation in lieu of reinstatement and back wages would be the appropriate relief under the facts and circumstances of this case. Determinative factor for computing the compensation is the quantum of the back wages which a workman might be entitled to receive as back wages. As per his own case workman is a skilled Carpenter and as per WW2 Ravinder Kumar Panchal, he left the service of the present management as Carpenter as he got a better job. Thus it is difficult to believe that workman remained totally unemployed as deposed by him. In my considered view award of a compensation of Rs. 40,000/- (Rs. Fourty Thousand Only) would be just and adequate compensation to the workman in lieu of reinstatement and back wages. I accordingly award a compensation of Rs. 40,000/- (Rs. Fourty Thousand Only) to the workman. On receiving this compensation amount workman shall have no claim against the management for reinstatement and back wages. Management is directed to pay this compensation amount to the workman within three months of the award ID No. 90/2006/2005 34 becoming enforceable failing which workman would be entitled to recover the compensation amount with interest @9% per annum from the date of the award. Award stands passed as per foregoing findings and reference stands answered accordingly.
34. Copy of the award be sent to learned Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). The file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 21st DAY OF AUGUST 2008 S.K.KAUSHIK PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.