Delhi District Court
Between The vs The on 5 January, 2022
IN THE COURT OF SH. RAMESH KUMAR-II,
PRESIDING OFFICER LABOUR COURT-06, ROUSE
AVENUE DISTRICT COURT, D.D.U. MARG,
NEW DELHI
CNR No. DLCT130006612019
LIR No. 224/2019
Date of institution 24.01.2019
Date of Award 05.01.2022
BETWEEN THE WORKMAN
Sh. Shiv Kumar S/o Late Sh. Ram Hazoor, Aged 51 years,
Contact No. 8447841047, R/o T-2/1, Budh Vihar, Phase-I, New
Delhi-86, through All India General Mazdoor Trade Union
(Regd. No. 3025), 170, Bal Mukund Khand, Giri Nagar, Kalka
Ji, New Delhi-110019.
AND
THE MANAGEMENT OF
M/s Shri Krishna International, B-21, Wazir Pur Industrial Area,
Delhi-110052.
AWAR D
1 Vide this award, I shall dispose of the reference as sent by
the Joint Labour Commissioner, Distt. North-West, Govt. of the
National Capital Territory of Delhi, Delhi arising between the
parties named above to this court vide Notification No.
F.24/ID/303/18/NWD/461/18/Lab/13245-247 dated 27.12.2018
with the following terms of reference:-
"Whether the services of workman Sh. Shiv Kumar S/o
Late Sh. Ram Hazoor have been terminated illegally and/or
unjustifiably by the management; and if so, to what relief is
he entitled and what directions are necessary in this
respect?"
2 After receipt of reference, notice was issued to the
Digitally
signed by
RAMESH
LIR No. 224/2019 RAMESH KUMAR 1
KUMAR Date:
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workman with directions to file statement of claim which has
been filed by the workman stating therein that he had been
working with the management with full honesty and hard work
since November 2006 at the post of "Machine Man"; that his
last drawn salary was Rs. 11400/- per month; that during his
service with the management, he neither gave any chance of
any complaint to the management nor there was any kind of
allegation against him; that the management had not provided
the workman various facilities as per the Labour Law; that the
salary of the workman was shown in the records of the
management as Rs. 10500/- however, he was paid Rs. 11400/-;
that several times the workman demanded the facilities as per
the labour law, but the management never paid any heed to his
repeated requests to provide legal facilities like appointment
letter, leave book, salary slip, weekly and yearly leaves, Bonus,
Minimum wages as per the post, due/earned wages, & P.F. etc.;
that on 21.08.2017, while the workman was on duty, at about
2.30 p.m., he got severe injury on his right hand from machine,
due to which nerves of his right hand got cut/damaged, for which
he got treated for many days and from 21.08.2017 till 29.8.2017,
he got admitted in ESIC hospital, Sector-15, Rohini, Delhi-
110085; that on 29.08.2017, he was discharged from the hospital
but he further got treated w.e.f. 30.08.2017 till 01.02.2018 and
on 02.02.2018, he got the fitness certificate from the ESIC
Hospital; that when he visited the premises of management with
fitness certificate, the management refused to take him back in
service; that the management kept on giving false assurance to
take him back in service and lateron gave false assurance of
arranging job for him in some other management; but till date,
the management has not reinstated the workman due to which he
Digitally
signed by
LIR No. 224/2019 RAMESH 2
RAMESH KUMAR
KUMAR Date:
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is unemployed since 02.02.2018; that on 15.05.2018, the
workman sent a written demand notice to the management
through registered A.D./speed post stating therein that he be
given his due wages/ wages for period he was unemployed and
further that he be also reinstated in service but the management
neither sent any reply to the demand notice nor reinstated the
workman in service; that the workman through his union also
filed a written complaint before concerned Assistant Labour
Commissioner, upon which notice was issued to the management
to appear before Labour Inspector, but management neither
appeared before the Labour Inspector alongwith records nor
took the workman back in service; that the workman was made
to do four hours overtime daily; that despite repeated request
made by the workman, the management did not pay wages for
overtime to workman; that thereafter the workman also filed his
dispute before Conciliation Officer however, since the
management did not co-operate in conciliation proceedings, the
Assistant Labour Commissioner was left with no option but to
refer the same to the Labour Court for adjudication. It is further
submitted that the management has terminated the services of
the workman illegally in violation of provisions of section 25 F
of the Industrial Disputes Act, 1947, due to which he is still
unemployed; that despite efforts, the workman could not find
any job; that the workman is entitled for his due earned wages;
salary for his unemployed period and for his reinstatement in
service. It is therefore prayed that an award may kindly be
passed directing the management to reinstate the workman with
full back/due wages.
3 The management has contested the present claim and filed
its written statement thereby taking various preliminary
Digitally
LIR No. 224/2019 signed by 3
RAMESH
RAMESH KUMAR
KUMAR Date:
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objections that the statement of claim of the workman is false,
frivolous, misconceived and is liable to be rejected out-rightly as
he has not come to the court with clear hands and suppressed
material facts from the court qua his tenure of service with the
management and has raised the captioned industrial dispute in
order to achieve his malafide designs to extort the money. It is
further stated that there is no case of termination and the present
case is of intentional departure from service. It is further stated
that on 21.08.2017, the workman sustained injuries at the factory
of the management while working on the machine negligently
and carelessly and since he was duly covered under ESIC, he
took regular treatment from ESIC, however thereafter, he never
turned to the management with a valid/proper fitness certificate
for resuming his duties. It is further stated that the management
is still ready and willing that the workman should resume his
duty forthwith by producing proper and valid fitness certificate.
It is further stated that the workman was quite negligent and
careless in performing his duties and he was a chronic absentee
and used to remain even giving any information to the
management, as such he has never completed 240 days of
continuous service with the management in a calendar year
including the year preceding his alleged termination. It is further
stated that the present reference has been made by the
Conciliation Officer in most mechanical manner as workman
had filed a false, frivolous and motivated statement of claim
against the management before the Conciliation Officer. It is
further stated that the management duly participated in
conciliation proceedings and requested the Conciliation Officer
to direct the workman to report for his duty with the
management with proper and valid fitness certificate. It is further
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signed by
LIR No. 224/2019 RAMESH 4
RAMESH KUMAR
KUMAR Date:
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stated that prior to filing of statement of claim before
Conciliation Officer, the workman had also filed motivated, false
and frivolous complaint against the management. It is further
stated that the management had made the same offer to the
workman before the Labour Inspector as well and the
management had also written a letter dated 28.09.2018 to the
workman thereby calling upon the workman to resume his duty
and produce the valid and proper fitness certificate, however the
workman completely ignored the bonafide endeavor of the
management. In these circumstances, the Conciliation Officer
ought to have rejected the claim of the workman, however
without considering the submissions of the management
judiciously, the Conciliation Officer made the present reference
to this court mechanically and under the pressure of the union.
As far as merits are concerned, it is submitted that the workman
joined the management w.e.f. 01.01.2006 at the post of Pressman
and his last drawn salary was Rs.10500/- per month. It is further
submitted that the management was providing all the facilities to
the workman as applicable upon the management and as per the
entitlement of the workman. It is reiterated that the workman
was quite lethargic, careless and negligent in performing his duty
and was a chronic absentee and the management warned him on
several occasions to mend his ways but he did not change his
attitude. However, on humanitarian grounds the management did
not take any stern action against him. It is further denied that the
management was showing the wages of the workman as
Rs.10500/- but was paying Rs.11400/- per month. It is further
submitted that the workman never occasioned to raise any
demand from the management as alleged. It is further denied for
want of knowledge that on 02.02.2018, doctor from ESI hospital
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RAMESH 5
RAMESH KUMAR
KUMAR Date:
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issued fitness certificate to the workman. It is also denied that
the workman approached the management with fitness certificate
but the management refused him duty or gave any false
assurance as alleged. It is further reiterated that the workman
never approached the management with valid fitness certificate
for resuming his duty. It is further stated that the management is
still ready and willing that workman should join duty with the
management upon producing valid and proper fitness certificate.
All other averments of the statement of claim are denied word by
word and it is prayed that the claim of the workman be
dismissed.
4 The workman thereafter filed rejoinder wherein all the
contents of the written statement were denied and the facts of the
statement of claim were reiterated and reaffirmed as correct and
it is prayed that an award be passed in favour of the workman in
terms of prayer made by him in statement of claim.
5 After completion of the pleadings of the parties, following
issues were framed vide order dated 27.09.2019:-
1 Whether the workman was a chronic absentee
and used to remain absent from duty as per his whims and
fancies without even giving any information to the
management? OPM
2 Whether the workman has completed 240 days of
continuous service with the management during the
preceding one year from the alleged date of termination of
his services? OPW
3 As per terms of reference. OPW
4 Relief.
6 After the framing of issues, matter was fixed for
workman's evidence. Accordingly, the workman in support of
Digitally
LIR No. 224/2019 signed by
RAMESH 6
RAMESH KUMAR
KUMAR Date:
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his claim examined himself as WW1 and relied upon his
evidence on documents i.e. office copy of demand notice dated
15.05.2018, two postal receipts and AD card are Ex.WW1/1 to
Ex.WW1/4 respectively and copy of claim and proof of his
working with the management is Ex.WW1/5 to Ex.WW1/9.
(Documents Ex.WW1/6 to Ex.WW1/9 are not available on
judicial record). The workman did not examine any other
witness in support of his claim and his Authorized
Representative closed his evidence on 03.03.2020 vide his
separate statement. Thereafter, matter was fixed for management'
evidence and the management in support of its defence also
examined one witness i.e. Sh. Krishan Lal Satija, its Partner as
MW1, who filed his evidence by way of affidavit Ex.MW1/A.
The management did not examine any other witness and its
Partner closed management's evidence on 23.03.2021 vide his
separate statement. After conclusion of evidence of both parties,
matter was fixed for final arguments.
7 I have heard the arguments as advanced by Ld. Authorized
Representative for both parties.
8 I have also perused the record. On perusal of record, my
issue-wise findings are as follows:-
ISSUE NO. 1 & 3
9 Both these issues are inter-connected as the finding of one
issue has a direct bearing on the other issue and as such both
these issues are being taken up together. Onus to prove issue
no.1 was upon the management and the management had to
prove that the workman was a chronic absentee and used to
remain absent from duty as per his whims and fancies without
even giving any information to the management, whereas onus
to prove issue no.3 was upon the workman and he had to prove
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RAMESH 7
RAMESH KUMAR
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that his services were terminated by the management illegally
and unjustifiably.
10 The claim of the workman is that on 21.08.2017 while he
was on duty, at about 2.30 p.m., he got severe injury on his right
hand from machine, due to which nerves of his right hand got
cut/damaged, for which he got treated for many days and from
21.08.2017 till 29.8.2017 he got admitted in ESIC hospital,
Sector-15, Rohini, Delhi-110085 and on 29.08.2017, he was
discharged from the hospital but he further got treated w.e.f.
30.08.2017 till 01.02.2018 and on 02.02.2018, he got the fitness
certificate from the ESIC Hospital and when he visited the
premises of management with fitness certificate, the
management refused to take him back in service.
11 On the other hand, the management took the defence in its
written statement that workman was quite negligent and careless
in performing his duties and he was a chronic absentee and used
to remain even giving any information to the management; and
that on 21.08.2017, the workman sustained injuries at the factory
of the management while working on the machine negligently
and carelessly and since he was duly covered under ESIC, he
took regular treatment from ESIC, however thereafter, he never
turned to the management with a valid/proper fitness certificate
for resuming his duties and as such there is no case of
termination, rather the present case is of intentional departure
from service.
12 The workman was cross examined by Ld. Authorized
Representative for management and in cross examination he
deposed that he is not fully aware about the contents of his
affidavit Ex.WW1/A. He further deposed that his relations with
the management were cordial during his employment period. He
Digitally
signed by
LIR No. 224/2019 RAMESH 8
RAMESH KUMAR
KUMAR Date:
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further admitted that he was appointed in the service of the
management on 01/01/2006. It is wrong to suggest that his last
drawn salary was Rs.10,500/- per month. He further admitted
that he was getting the facilities of ESI and also that he was
getting salary according to his working days. He further deposed
that he was also getting weekly and national holidays. He further
deposed that his last working day with the management was
21/08/2017. During his further cross examination, Ld.
Authorized Representative for management put a question to this
witness and he was being asked to tell that after 21/08/17 his did
not join the services of the management?, to which he replied
that since he had been met with an accident during his
employment and immediately after accident he was admitted in
the hospital, therefore, he could not join the services of the
management after 21/08/2017. He further admitted that he has
not placed his fitness certificate on judicial record. He further
denied the suggestion that he has not submitted his fitness
certificate with the management also. He further deposed that he
had not sent any demand notice to the management prior to
filing of his claim before conciliation officer. He further
admitted that he had also not filed his fitness certificate before
conciliation officer during conciliation proceedings. He further
deposed that he did not know if the management had submitted
before conciliation officer that management was ready to
reinstate him in services on being production of his fitness
certificate. He further deposed that management had not filed
reply to his claim before conciliation officer. He had not filed
any complaint before labour inspector. He further denied the
suggestion that management had not terminated his services or
that he left the services of the management of his own or that he
Digitally
signed by
LIR No. 224/2019 RAMESH 9
RAMESH KUMAR
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has filed a false affidavit.
13 MW2 was also cross examined by Ld. Authorized
Representative for workman wherein he deposed that
approximately 10 employees were employed with the
management in the year 2017. He further admitted that workman
had been working with the management from 01.01.2006 to
21.08.2017 continuously. He further deposed that workman was
paid wages as per attendance and that appointment letter was
issued to the workman. He further deposed that PF was not
applicable. He further deposed that between 21.08.2017 to
02.02.2018 attendance of the workman had been marked as
absent. He further deposed that accident had been occurred in
the company during his employment. He further deposed that
workman had been provided ESI hospital by the management.
He further deposed that he did not remember when the name of
workman was removed from the company/ management. He
further deposed that he can produce attendance register and
payment register for the year 2017 and 2018. He further deposed
that on 02.02.2018 workman did not approach with fitness
certificate. He further denied the suggestion that workman on
02.02.2018 had approached with the management or that he was
not allowed to join the employment with the management.
During his further cross examination Ld. Authorized
Representative for workman drawn the attention of this witness
towards document Ex.WW1/4 and on seeing the same witness
admitted the seal of the management at point A. Again said, seal
does not belong to company and address mentioned also is
different and he refused to identify the signature thereon. During
his further cross examination Ld. Authorized Representative for
workman further drawn the attention of this witness towards
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RAMESH 10
RAMESH KUMAR
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document Ex.WW1/1 and on seeing the same witness admitted
the address mentioned therein at point A. He further deposed that
management did not make any communication regarding his
joining of services to workman and no domestic enquiry was
conducted against the workman for not joining his duties. He
further denied the suggestion that workman was never absent or
that he approached the management with fitness certificate on
02.02.2018. Further cross-examination of MW1 was deferred for
attendance register and wages register for 2017 and 2018
regarding the workman. MW1 Sh. Krishan Lal Satija produced
the original attendance register on 23.03.2021 and same was
exhibited as Ex.MW1/X. Thereafter, MW1 was further cross
examined by Ld. Authorized Representative for workman
wherein he deposed that accountant of the management used to
mark absent and present of workman on attendance register. He
further denied the suggestion that the present register is not the
original or it is falsely produced in the court. He further denied
the suggestion that the said register has been prepared in one day
with same ink/pen. He further denied the suggestion that salary
of the workman in the month of August 2017 for about 21 days
is pending. He further deposed that he did not remember whether
the workman was under treatment w.e.f. 30.08.2017 to
01.02.2018.
14 Ld. Authorized Representative for workman argued that
workman had been working with the management since
November 2006 at the post of "Machine Man" and his last
drawn salary was Rs. 11400/- per month but the management
had not been providing the workman legal facilities like
appointment letter, leave book, salary slip, weekly and yearly
leaves, Bonus, Minimum wages as per the post, due/earned
Digitally
LIR No. 224/2019 signed by
RAMESH
11
RAMESH KUMAR
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wages, P.F. etc., which he demanded from the management time
and again, but the management never paid any heed to his
repeated request. Ld. Authorized Representative for workman
further argued that on 21.08.2017 while the workman was on
duty, at about 2.30 p.m., he got severe injury on his right hand
from machine, for which he got treated for many days and from
21.08.2017 till 29.8.2017, he got admitted in ESIC hospital. Ld.
Authorized Representative for workman further argued that on
29.08.2017, the workman was discharged from the hospital but
he further got treated w.e.f. 30.08.2017 till 01.02.2018 and on
02.02.2018, he got the fitness certificate from the ESIC Hospital
and when he visited the premises of management with fitness
certificate, the management refused to take him back in service.
He further argued that management took a defence in their
written statement that after accident the workman did not turn up
to join his duty and remained absent unauthorizedly from the
duty without any intimation, but even if it is presumed that the
workman had been running absent from duty without any
intimation, the management could have sent notice/call letter to
the workman to join duty or conducted any domestic enquiry
against the workman but neither the management issued any
notice/call letter nor conducted any domestic enquiry against the
workman for his unauthorized absence from the duty. He further
argued that MW1 has categorically deposed in his cross
examination that management did not make any communication
regarding joining of services to workman and that no domestic
enquiry was conducted against the workman for not joining his
duties and therefore, it stands proved that the services of the
workman were terminated by the management illegally in
violation of provisions of section 25 F the Industrial Disputes
Digitally
signed by
LIR No. 224/2019 RAMESH 12
RAMESH KUMAR
KUMAR Date:
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Act, 1947. He further argued that since the services of the
workman were terminated by the management illegally,
therefore, the workman is entitled to reinstatement in service
along with full back wages and other consequential benefits.
15 On the other hand, Ld. AR for management argued that
whenever any employee sustains injury in an accident while
working in the premises of the management, generally he
proceeds on medical leave and after getting well he has to
submit a valid and proper fitness certificate with the
management, then only management allows him to join duty but
in the instant case the workman never approached the
management with valid and proper fitness certificate and
remained absent from the duty unauthorizedly without any
intimation. He further argued that the workman also could not
prove that when he got discharged from the hospital and when he
approached the management with fitness certificate to join his
duty. He further argued that the workman has to summon records
of ESIC to prove that he was admitted in hospital during the said
period. He further argued that management is still ready to take
the workman back on duty subject to production of valid and
proper fitness certificate. He further argued that it is not the case
of termination, rather it is the case of abandonment of job and
hence, the claim of the workman is liable to be dismissed on this
ground alone. He further argued that the workman in his cross
examination admitted that he was getting the facilities of ESI
and he was getting salary according to his working days and was
also getting weekly and national holiday, which means that all
legal facilities were being provided to the workman by the
management. He further argued that the workman deposed in his
cross examination that his relations with the management were
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LIR No. 224/2019 signed by 13
RAMESH
RAMESH KUMAR
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cordial which means that there was never any dispute between
the workman and the management. He further argued that the
workman also admitted in his cross examination that he was
appointed in the service of the management on 01.01.2006,
hence the claim of the workman with regard to date of his
appointment with the management since November 2006 is
false. Ld. Authorized Representative for management further
argued that the workman himself admitted in his cross
examination that he could not join the services of the
management after 21.08.2017 and as such it stands proved that
the workman was running absent from the duty unauthorizedly
without any intimation after 21.08.2017, hence the question of
termination of his services does not arise. He further argued that
during conciliation proceedings the management requested the
Conciliation Officer to direct the workman to report for his duty
with the management with proper and valid fitness certificate.
He further argued that management has not been cross examined
by the workman on the fact of giving offer to the workman by
the management before Conciliation Officer that management
was ready to reinstate him in service on production of his fitness
certificate. He further argued that admittedly the workman did
not file his fitness certificate either before Conciliation Officer
during conciliation proceedings or before this court also, which
proves that it is not the case of termination, rather it is the case
of abandonment of job and therefore, the claim of the workman
is liable to be dismissed and may kindly be dismissed.
16 I have considered the submissions as made by Ld.
Authorized Representative for both parties.
17 In order to prove that the workman had been running
absent from the duty unauthorizedly without any intimation, Ld.
Digitally
signed by
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RAMESH KUMAR
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Authorized Representative for management has placed on record
original attendance register of the management for the period
from 2017 till 2018. Ld. Authorized Representative for workman
has suggested to MW1 during his cross examination that the
register Ex.MW1/X is not the original or it is falsely produced in
the court or that the said register has been prepared in one day
with same ink/pen, but Ld. Authorized Representative for
workman did not prove as to how the said attendance register
filed is forged and fabricated. Therefore, this court is of the
opinion that merely putting a suggestion does not prove that
documents filed by the management are forged and fabricated, in
absence of any cogent evidence.
18 As per the attendance register Ex.MW1/X, it is mentioned
that the workman met with an accident on 21.08.2017 and from
01.09.2017 onwards till 31.03.2018 the workman has been
shown absent. The workman did not prove that he took treatment
w.e.f. 21.08.2017 till 29.08.2017 in ESIC Hospital. He also did
not prove that he took his further treatment w.e.f. 30.08.2017 till
01.02.2018. It is also not the case of the workman here that
doctor advised him for rest for long period, due to which he
remained on medical leaves and after getting well, he would
rejoin his duties with the management. The workman also did
not give any intimation or information to the management that
he would remain on long medical leaves on account of taking
medical treatment. The testimony of the workman is oral,
whereas the evidence of the management is based on
documentary evidence, therefore, the oral testimony of the
workman has no relevance. Therefore, by way of documentary
evidence the management has been able to prove that the
workman had been running absent from the duty unauthorizedly
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LIR No. 224/2019 by RAMESH 15
KUMAR
RAMESH Date:
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without any intimation.
19 Further, admittedly the workman did not produce his
fitness certificate either before the Conciliation Officer or before
this court also. The workman also deposed in his cross
examination on question being put by the management that since
he had been met with an accident during his employment and
immediately after accident he was admitted in the hospital,
therefore, he could not join the services of the management after
21.08.2017. From this deposition of the workman, now it is clear
that the workman never approached the management for
rejoining his duties, rather he himself was running absent from
the duty unauthorizedly without any intimation, hence the
question of termination of his services by the management
illegally on 02.02.2018 does not arise.
20 Further, it is also pertinent to mention here that the
management had also requested the Conciliation Officer during
conciliation proceedings to direct the workman to report for his
duty with the management with proper and valid fitness
certificate and the workman was also cross examined by the
management on this fact but the workman has shown his
ignorance in his deposition before the court stating that he did
not know if the management had submitted before conciliation
officer that management was ready to reinstate him in services
on being production of his fitness certificate. Further, the
management also stated in its written statement that the
management is still ready and willing that the workman should
resume his duty forthwith by producing proper and valid fitness
certificate.
21 In Parshuram Shah Vs. Govt. of NCT of Delhi &
Anr., Writ Petition (C) No. 5986 of 2007, Decided
Digitally
signed by
LIR No. 224/2019 RAMESH 16
RAMESH KUMAR
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on September 3, 2007, the Hon'ble High Court of
Delhi inter alia held that:
"6. A perusal of the evidence tendered by the
petitioner workman by way of his affidavit
shows that he has not stated therein that he had
gone to the office of the respondent management
after 13th February, 2003 to join duties. It has also not been explained as to why he remained quiet for a period of one month before making a complaint to the Asst. Labour Commissioner on 11th March, 2003. A perusal of the records further reveals that the petitioner workman did not cross-examine the management witnesses on their statement that he was offered to be taken back in service even during the conciliation proceedings. Thus the stand of the respondent management that the petitioner workman had abandoned his job voluntarily remained unrebutted. It cannot be said that the respondent/management failed to prove that the petitioner had abandoned the services. There is also no cross-examination of the management witnesses to the effect that even during the course of the conciliation proceedings the respondent/management offered to take the petitioner workman back in service. Even during the course of his cross-examination, the management witness reiterated the offer to take the petitioner workman back in service. There are no such glaring contradictions in the evidence of the management witnesses so as to draw an adverse inference against them. It is only after taking the aforesaid facts into consideration, that the Labour Court came to the conclusion that the management had not terminated the services of the petitioner workman in any manner.
Digitally
signed by
RAMESH
LIR No. 224/2019 RAMESH KUMAR 17
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22 The workman did not cross examine the management
witness on his statement that the management requested the Conciliation Officer during conciliation proceedings to direct the workman to report for his duty with the management with proper and valid fitness certificate or the management is still ready and willing that the workman should resume his duty forthwith by producing proper and valid fitness certificate. Therefore, the stand of the management that there is no case of termination and the present case is of intentional departure from service remained un-rebutted. The workman also deposed in cross examination that his last working day with the management was 21.08.2017. Even if it is presumed that the workman approached the management on 02.02.2018 for rejoining his duties with fitness certificate, this court is of the opinion that the workman must have produced his fitness certificate either before the Conciliation Officer or before this court to prove this fact. In the absence of the same it cannot be presumed that the workman approached the management on 02.02.2018 for rejoining his duties with fitness certificate. Since the workman deposed in his cross-examination that he could not join the services of the management after 21.08.2017 and since he could not prove that he approached the management on 02.02.2018 to rejoin his duties, therefore this court is of the opinion that the question of termination of services of the workman by the management illegally on 02.02.2018 does not arise, rather it is the workman who had been running absent from the duty unauthorizedly without any intimation and thus abandoned the job of his own. 23 So far as contention of Ld. Authorized Representative for workman that if the workman was running absent from the duty the management could have sent notice/call letter to the Digitally signed by LIR No. 224/2019 RAMESH RAMESH KUMAR 18 KUMAR Date:
2022.01.05 16:27:56 +0530 workman asking him to join duty or conducted an enquiry against the workman for his unauthorized absence from the duty, is concerned, this court is of the opinion that this contention of Ld. Authorized Representative for workman is not having any force in view of the judgment of the Hon'ble High Court of Delhi in case titled Diamond Toys Co. (P) Ltd. Vs. Toofani Ram and Anr., W.P.(C) No.4501/04, wherein it was held that:
"6.......If the employer does not consider the abandonment of service or leaving the service by a workman as a misconduct, the law cannot force the employer to consider such abandonment as a misconduct and hold an enquiry. Misconduct of an employee is the one which an employer considers as the misconduct. An enquiry is required to be held only where an employer intends to impose punishment on the employee for an alleged misconduct. if an employer does not intend to impose any punishment on the employee and considers that if the employee has left his service, let it be so, the law cannot compel the employer to hold an enquiry and punish an employee for the misconduct.
"7. I consider that it was not necessary for the employer to hold an enquiry into the abandonment of the service by the respondent. It was for the respondent to prove that his services were terminated for some reasons by the employer or without any reason by the employer. The respondent had taken a stand which was found to be false. Under these circumstances, the Labour Court's conclusion that it was a case of retrenchment is perverse."
24 Since the workman himself remained unauthorizedly Digitally signed by RAMESH LIR No. 224/2019 RAMESH KUMAR 19 KUMAR Date:
2022.01.05 16:28:02 +0530 absent from his duties and abandoned the job after 21.08.2017 and he even did not join the duties of the management despite giving offer to him by the management to join the duties before Conciliation Officer as well as in its written statement, t her ef or e, t h i s co ur t i s o f t h e o p i n i o n t ha t it was not necessary for the management to hold an enquiry into the abandonment of the service by the workman in view of law laid down by Hon'ble High Court of Delhi in Diamond Toys Co. (P) Ltd. Vs. Toofani Ram and Anr. (supra). Therefore, keeping in view all these facts and circumstances, it is held that the services of the workman were never terminated by the management illegally and/or unjustifiably in violation of provisions of section 25 F of the Industrial Disputes Act, 1947. Issue no.1 and 3 are decided in favour of the management and against the workman.
ISSUE NO.2
25 Onus to prove this issue was upon the workman and he had to prove that he has completed 240 days of continuous service with the management during the preceding one year from the alleged date of termination of his services. 26 The workman in his cross examination deposed that he has placed document on judicial record to show 240 working days before his termination. During his further cross examination Ld. Authorized Representative for management drawn the attention of this witness towards judicial record and after going through the record, witness submitted that said document is not on judicial record.
27 Ld. Authorized Representative for management argued that in the present case the workman did not lead any evidence to prove that he had worked for 240 days continuously with the Digitally signed by LIR No. 224/2019 RAMESH 20 RAMESH KUMAR KUMAR Date:
2022.01.05 16:28:32 +0530 management in a preceding year from the alleged date of his termination and it is well settled law that an employee can raise an industrial dispute only after working for 240 days continuously with the employer in a year, but the workman did not lead any evidence to prove this issue. Hence, the claim of the workman is also liable to be dismissed on this ground too.
28 I have perused the record. The workman is not having any documentary evidence to prove that he has completed 240 days of continuous service with the management during the preceding one year from the alleged date of termination of his services. The workman has also not summoned the records of the management to prove this fact. The workman has also not moved any application thereby summoning the records of the management like attendance register/wages register etc. to prove that he has completed 240 days of continuous service with the management during the preceding one year from the alleged date of termination of his services. However, the management has placed on record its attendance register Ex.MW1/X which shows that the workman did not complete 240 days of continuous service with the management during the preceding one year from the alleged date of termination of his services. 29 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 Digitally signed LIR No. 224/2019 by RAMESH KUMAR 21 RAMESH Date:
KUMAR 2022.01.05
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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".
30 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.
31 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 worked with the employer for 240 days to get the benefit under section 25 F 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".
32 Therefore, keeping in view the above discussion and also keeping in view aforesaid law points, it is held that the workman has failed to prove that he has completed 240 days of continuous Digitally LIR No. 224/2019 signed by RAMESH 22 RAMESH KUMAR KUMAR Date:
2022.01.05 16:28:45 +0530 service with the management during the preceding one year from the alleged date of termination of his services. This issue is also decided against the workman.
RELIEF
33 Keeping in view the findings of this court on issue no.1, 2 and 3, it is held that the workman is not entitled to any relief against the management and an award to that effect is passed today. Reference is answered and disposed off accordingly. 34 A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
AWARD PRONOUNCED ON 05.01.2022 THROUGH VIDEO CONFERENCING Digitally signed by RAMESH KUMAR RAMESH Date: KUMAR 2022.01.05 16:28:51 +0530 (RAMESH KUMAR-II) PRESIDING OFFICER: LABOUR COURT-06 ROUSE AVENUE COURT COMPLEX NEW DELHI LIR No. 224/2019 23