Delhi District Court
Between The vs The on 10 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. DLCT130041732018
LIR No. 3814/2018
Date of Institution 05.10.2018
Date of Award 10.01.2022
BETWEEN THE WORKMAN
Smt. Renu W/o Sh. Jitender Singh, Aged 24 years, Contact
No. 8745951024, R/o H. No.144, E Block, Yadav Nagar, Libas
Pur, Delhi-42, through Sh. Kamta Prasad Sharma (General
Secretary), Contact No. 9811271724, Krantikari General
Mazdoor Union (Regd. 4604), J-1413, Jahangirpuri, Delhi-33.
AND
THE MANAGEMENT OF
M/s Bird Audio India Pvt. Ltd., A-35, Gali No.2, Phase-1,
Industrial Area, Badli, Delhi-42.
AWAR D
1 By this award I shall dispose off the reference as sent by
Deputy Labour Commissioner, Labour Department, Distt. North-
West, Govt. of the National Capital Territory of Delhi, Delhi
arising out between the parties named above to this Court vide
Notification No. F.24/ID/255/18/NWD/330/18/Lab/1063-66
dated 28.08.2018 with the following terms of reference:-
"Whether the workman Smt. Renu W/o Sh. Jitender
Singh has completed 240 days of continuous service and if so
have been terminated illegally and /or unjustifiably by the
management; and if yes, to what relief is she entitled and
LIR No. 3814/18 Digitally signed
by RAMESH
1
KUMAR
RAMESH Date:
KUMAR 2022.01.10
16:37:11
+0530
what directions are necessary in this respect?"
2 After receipt of reference, notice was issued to the
worklady with directions to file statement of claim which has
been filed by her stating therein that she had been working with
the management at the post of helper for the last five years at
monthly salary of Rs. 4700/-; that she was doing her work with
full honesty and hard work and during her service tenure with the
management, she neither gave any chance of complaint to the
management nor there was any kind of allegation against her;
that the management had never provided her various legal
facilities as per labour law like appointment letter, leave
encashment, wages as per Minimum Wages Act and service
record etc.; that despite repeated demand made by the worklady,
the management did not provide her all legal facilities and kept
on evading her on false assurance, due to which she became
member of union and made complaint against the management
before Chief Factory Inspector, Labour Department on
08.02.2018, 22.02.2018 and 20.03.2018, upon which factory
inspector inspected the management's premises, due to which the
management got annoyed and on 23.03.2018, when the worklady
went for her duty, the management without assigning any reason,
giving prior notice, terminated her services illegally, that too
without paying her due wages w.e.f. 01.02.2018 till 23.03.2018
and also refused to make any other due payment to her; that
thereafter, worklady filed a complaint on 18.04.2018 before
Labour Department; that despite best efforts made by the Labour
Inspector, the management neither paid any due wages to the
worklady nor reinstated her in service; that worklady also sent a
demand notice dated 15.06.2018 to the management stating
Digitally
LIR No. 3814/18 signed by
RAMESH
2
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:37:20
+0530
therein that she be given her due wages and she be also reinstated
in service but the management neither paid any due wages to the
worklady nor reinstated her in service; that thereafter the
worklady filed her dispute before Conciliation Officer however,
since the management did not cooperate in conciliation
proceedings, the Assistant Labour Commissioner was left with no
option but to refer the same before the Labour Court for
adjudication; that the management by terminating her services
illegally without giving any reason, notice or without conducting
any domestic enquiry against her, violated the provisions of
Section 25 F of the Industrial Disputes Act 1947; that the
worklady is unemployed since the date she was illegally
terminated by the management and despite efforts, she could not
get any job. Therefore, in these circumstances, it is prayed that an
award may kindly be passed in favour of the worklady thereby
directing the management to reinstate her in service with full
back wages, wages for the period of unemployment including all
legal facilities and other consequential benefits.
3 The management has contested the present case and filed
its written statement thereby taking various preliminary
objections that the statement of claim is liable to be dismissed
because the claim of the claimant is not maintainable in
accordance with law. It is further stated that the claimant was
engaged as helper some time in the month of January-February
2018 purely on casual basis and the management during the
month of January-February 2018 engaged some freelancer/casual
workers to meet the requirement and to fulfill the urgent order
and the claimant was engaged/deployed as freelancer for some
time during the said period. It is further stated that the claimant
Digitally
signed by
LIR No. 3814/18 RAMESH
RAMESH
KUMAR
3
KUMAR Date:
2022.01.10
16:37:27
+0530
never appointed as permanent employee and she has/had not
worked before and after the period of January-February 2018 and
she never worked after February 2018, therefore, the relationship
of master and servant between the parties ceased thereafter. It is
further stated that the claimant be directed to prove her continue
employment with the management for the period of five years as
alleged in the claim. It is further stated that the claimant has/had
never worked with the management on permanent basis and was
engaged/deployed only during the said period and the
management has been falsely implicated in the case solely with a
view to black mail and to harass and to extort money by adopting
illegal ways and means and such nefarious activities must be
condemned by this court. On merits, it is denied that the claimant
was working with the management for last five year as Helper or
that she was being paid Rs.4700/- per month or that she had
flawless records of her service and it is submitted that she was
deployed as freelancer/casual employee during the period of
January 2018 and February 2018 as Helper and thereafter, she
never worked with the management. It is further stated that the
management is well organized and is providing all statutory
benefits/facilities to its permanent employees and since the
claimant was engaged free-lancer/casual employee for a very
small period, therefore, the allegations are being alleged
otherwise have no substance in it, therefore, deserves no
consideration. It is further stated that the management never
adopted unfair labour practice and is very strict to follow the
procedure of law and to maintain properly but contrary to this the
claimant has filed the fabricated and false case against the
management. It is further stated that the management has no
Digitally
signed by
LIR No. 3814/18 RAMESH 4
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:37:34
+0530
grudge for any of the employees of being a member of the union.
It is further stated that the Factory Inspector inspected the record
of the management and never gave any adverse remarks in
maintaining records. It is further stated that the claimant never
approached the management for making any demand. It is further
denied that the management is liable to make the payment of
salary to the worklady for the period of 01.02.2018 to
23.03.2018, rather it is submitted that the claimant had been paid
payment for the days she worked with the management as
freelancer/casual employee. It is further stated that the claimant
had filed a complaint before the conciliation officer and the
representative of the management communicated all the facts,
despite that the matter has been referred for adjudication in a
stereo type manner without applying mind hence, the reference
order and its terms are bad in law. It is further stated that the
management has replied to all the letters received either from the
union or from the labour department and informed the real facts,
therefore, the appropriate government has passed the reference
order mechanically without applying its mind to the facts and
circumstances of the case. It is further stated that the
management has not violated the provisions of section 25 F of
the I.D. Act, contrary to this the claimant with the connivance of
the union has implicated the management in a false case,
therefore, the act and the attempt of the claimant is bad in law. It
is further stated that the management is not liable and obliged for
anything of the claimant because of having no relations of any
sort. All other averments of statement of claim are denied word
by word and ultimately it is prayed that the claim being false,
bogus, wrong and incorrect is liable to be dismissed and deserves
Digitally
signed by
LIR No. 3814/18 RAMESH 5
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:37:42
+0530
no consideration.
4 The worklady did not file rejoinder to written statement of
management and from the pleadings of both parties, following
issues were framed vide order dated 26.07.2019:-
1 As per terms of reference. OPW
2 Whether there exists any relationship of employer
and employee between the workman and the management?
OPW
3 Relief.
5 After framing of the issues, matter was fixed for
worklady's evidence. The worklady in support of her case
examined herself as WW-1 and deposed in her affidavit
Ex.WW1/A in terms of her statement of claim and relied her
evidence upon the documents i.e. original complaint dated
18.04.2018 Ex.WW1/1; copy of report of Labour Inspector dated
16.07.2018 Ex.WW1/2; copy of complaint given to Factory
Inspector dated 22.02.2018 Ex.WW1/3; copy of report of Chief
Factory Inspector dated 22.02.2018 Ex.WW1/4; copy of aadhaar
card Ex.WW1/5; original demand notice dated 15.06.2018
Ex.WW1/6; postal receipt Ex.WW1/7 and copy of claim filed
before Conciliation Officer Ex.WW1/8. The worklady did not
examine any other witness in support of her case and her
Authorized Representative closed her evidence on 18.11.2021
vide his separate statement. Thereafter, matter was fixed for
management's evidence for 09.12.2021, on which date Ld.
Authorized Representative for management submitted that
management is not willing to lead any evidence in the present
case and same may be closed. Statement of Ld. Authorized
Representative for management was recorded separately to that
Digitally
signed by
LIR No. 3814/18 RAMESH 6
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:37:48
+0530
effect and considering his statement, the evidence of the
management was closed on 09.12.2021. Thereafter, matter was
fixed for final arguments.
6 Ld. Authorized Representative for both parties filed their
respective written arguments.
7 I have gone through the written arguments as filed by both
parties.
8 I have also perused the record and on perusal of record my
issue-wise findings are as under:
ISSUE NO. 2
9 Firstly, issue no.2 is being taken up for the sake of
convenience. Onus to prove this issue was upon the worklady
and she had to prove that there exists any relationship of
employer and employee between her and the management. This
issue was framed as the management in its written statement took
a plea that the worklady was engaged as helper some time in the
month of January-February 2018 purely on casual basis to meet
the requirement and to fulfill the urgent order and she was never
appointed as permanent employee and she has/had not worked
before and after the period of January-February 2018 and she
never worked after February 2018, therefore, the relationship of
master and servant between the parties ceased thereafter. The
management in its written statement has clearly requested that
the worklady be directed to prove her continue employment with
the management for the period of five years as alleged in the
statement of claim.
10 In nutshell the claim of the worklady is that she had been
working with the management for last five years and despite her
repeated demands for providing legal facilities, the management
Digitally
signed by
LIR No. 3814/18 RAMESH 7
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:37:57
+0530
did not provide her all legal facilities and kept on evading her on
false assurance, due to which she became member of union and
made complaint against the management before the Factory
Inspector, Labour Department on 08.02.2018, 22.02.2018 and
20.03.2018, upon which factory inspector inspected the
management's premises, due to which the management got
annoyed and on 23.03.2018, when the worklady went for her
duty, the management without assigning any reason, giving prior
notice, terminated her services illegally.
11 The worklady was cross examined by the management on
this issue and in her cross examination, the worklady deposed
that she knows the contents of her affidavit Ex.WW1/A. She
further deposed that she had joined the management at the age of
19-20 years but she does not remember the date and month when
she joined the management. She further deposed that she does
not have any documentary proof to show that she had joined the
management five years back. During her further cross
examination Ld. Authorized Representative for management
drawn the attention of worklady towards document Ex.WW1/3
and on seeing the same she submitted that her signature does not
appear thereon. She further deposed that facilities of ESI,
overtime have not been provided to her but her salary was paid to
her according to her work. She further denied the suggestion that
management had kept her on temporary basis for the month of
January and February 2018 or that she did not work anywhere
after January and February 2018 or that management had paid
her salary up to date. She further denied the suggestion that she is
working anywhere or that she had worked only for January and
February 2018. She further deposed that she might be aware of
Digitally
signed by
LIR No. 3814/18 RAMESH
RAMESH
KUMAR 8
KUMAR Date:
2022.01.10
16:38:03
+0530
contents of Ex.WW1/1 and due to lapse of time she might have
forgotten the same. She further deposed that she might have
forgotten the contents of Ex.WW1/3 due to lapse of time. She
further deposed that she had applied for the job but she could not
get the same but she does not remember the name of the
company where she has applied for job. She further denied the
suggestion that she had filed a false affidavit or that she is
deposing falsely on this aspect.
12 In written arguments, Ld. Authorized Representative for
worklady stated that the worklady was working with the
management for last 5 years as a helper at last drawn wages of
4700/- per month and she never gave any chance of any
complaint to the management during her entire service tenure. It
is further stated that when worklady was employed in the
management, she was never provided any record by the
management relating to her service and she was never given
minimum wages as per Minimum Wages Act as implemented by
Delhi Government. It is further stated that the management also
did not provide the facilities of ESI and PF to the worklady and
when she demanded the legal facilities from the management, the
management got annoyed and in vengeance the management
terminated her services on 23.03.2018 without issuing any notice,
charge sheet or without conducting any domestic enquiry and
without paying her full and final, which is illegal and against
labour law. It is further stated that thereafter the worklady, on
18.04.2018 and on several other dates, gave written complaints to
Assistant Labour Commissioner, Labour Office, Nimri Colony,
Delhi-52 against the management, upon which one labour
inspector inspected the management's premises, but the
Digitally
signed by
LIR No. 3814/18 RAMESH 9
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:38:10
+0530
management refused to take the worklady back in service. It is
further stated that worklady also sent demand notice to the
management, but management neither gave any satisfactory reply
nor took worklady back in service. It is further stated that
worklady did not leave job of her own, rather her services were
terminated by the management illegally despite the fact that she
had completed 240 days of service in every calendar year. It is
further stated that prior to terminating the services of the
worklady, the management did not issue any notice, charge sheet
or conduct any domestic enquiry, which is complete violation of
provisions of sections 25 F, 25 G & 25 H of the Industrial
Disputes Act, 1947. It is further stated that worklady was forced
to file her case before Labour Conciliation Officer, Labour
Office, Nimri Colony, Delhi-52, where management appeared but
did not show any interest in compromise, due to which the matter
was referred to this court for adjudication. It is further stated that
after seeking many jobs worklady could not find any job and she
is jobless since the date of termination of her services, therefore,
she is entitled for reinstatement with full back wages and
minimum wages as per Minimum Wages Act as prescribed by
Delhi Government and other labour benefits. It is further stated
that management has refused to lead any evidence in their favour,
therefore no documents as placed by the management on record
should be read as management did not verify and prove any
document in their favour. It is further stated that the management
intentionally terminated the services of the worklady, whereas
she is still ready to work with management. It is further stated
that the claim filed before the conciliation officer by worklady
was also for reinstatement in service, but the management in their
Digitally
signed by
LIR No. 3814/18 RAMESH 10
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:38:17
+0530
reply never replied to keep the worklady in service. It is further
stated that since management did not lead any evidence which
shows that everything has been conspired by the management
against the worklady and hence, the worklady is entitled for
reinstatement with full back wages, leave encashment and other
consequential benefits.
13 On the other hand, Ld. Authorized Representative for
management in written arguments stated that the claimant was
engaged as helper some time in the month of January-February
2018 purely on casual basis and during the said period the
management engaged some freelancer/causal workers to meet the
requirement and to fulfill the urgent order and the claimant was
engaged/deployed as freelancer for some time during the said
period and she was being paid minimum wages as prescribed by
Delhi Govt. It is further stated that the worklady was never
appointed as permanent employee and she had not worked before
and after the period of January-February 2018 and she had never
worked after February 2018, hence the relationship of master and
servant between the parties ceased thereafter. It is further stated
that burden to prove this fact is on the management and the
management has successfully been able to prove this fact while
conducting cross examination of the worklady, wherein she has
categorically deposed that she does not have any documentary
proof to show that she had joined the management five years
back, hence from this deposition of the worklady, it stands
proved that she was engaged as helper some time in the month of
January-February 2018 purely on casual basis to meet the
requirement and to full fill the urgent order. It is further stated
that the worklady has also not moved any application seeking
Digitally
signed by
LIR No. 3814/18 RAMESH 11
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:38:23
+0530
summoning of records of the management like attendance
register, salary register, and appointment letter etc. to prove that
she had been appointment by the management on permanent
basis. It is further stated that since the worklady was appointed
on casual basis and she never worked with the management after
February 2018, hence the relationship of master and servant
between the parties ceased thereafter. Therefore, in these
circumstances, the claim of the worklady deserves dismissal with
heavy cost in view of law laid down by Hon'ble Delhi High
Court in case titled Babu Ram Versus Govt. of N.C.T. Delhi
and Anr.; 247 (2018) Delhi Law Times 596 and Automobile
Association Upper India Versus P.O. Labour Court II and
Anr., 130 (2006) DLT 160.
14 Since the worklady has come to court seeking relief and is
claiming that she had been working with the management for last
five years but her services were terminated illegally, this court is
of the opinion that it is the worklady who has to prove that she
had been working with the management permanently for last five
years and her services were terminated by the management
illegally on 23.03.2018.
15 It is a settled proposition of law that a fact has to be proved
by a person who asserts it. Law otherwise is well settled in view
of judgment titled UCO Bank Vs. Presiding Officer & Anr. 1999
V AD (Delhi) 514 (Delhi High Court) that a fact has to be proved
by a person who asserts it and in para 13 of this judgment,
Hon'ble Delhi High Court held mainly to the effect that:-
"principles regarding burden of proof are
stipulated in Chapter VII of Indian Evidence Act,
1872 (in short Evidence Act) and that Sections 101
to 114 A of Evidence Act were relevant on this
Digitally
LIR No. 3814/18 signed by 12
RAMESH
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:38:33
+0530
aspect and the Hon'ble Delhi High Court further
held in this judgment that General Principle, which
is laid down in these Sections, particularly under
Sections 101 and 102 of Evidence Act was that he
who asserts must prove i.e. burden of proof is the
obligation to adduce evidence to the satisfaction of
the Tribunal or Court to establish the existence or
non-existence of a fact contended to by a party. It
was further held in this judgment that the burden
of providing a fact rests on the party who
substantially asserts the affirmative of the issue and
not upon the party who denies it, for a negative is
usually incapable of proof."
16 It was also held by Hon'ble Allahabad High Court
in judgment titled Canara Bank Vs. Union of India &
Ors. 1998 Lab. I.C. 2923 (Allahabad High Court). The
Hon'ble Allahabad High Court held in para 11 of this
judgment to the effect that:-
"Section 101 of Evidence Act postulates that
whoever desires any court to give judgment as to
any legal right and liability dependent on the
existence of facts which he asserts, must prove that
those facts exist. It was further held that when a
person is bound to prove the existence of any fact, it
is said that the burden of proof lies on that person.
Reference was also made by the Hon'ble High
Court to the provisions of Section 101, 103 and 106
of the Evidence Act pertaining to burden of proof in
such like case."
17 I have perused the record. The worklady in support of her
case relied upon documents i.e. original complaint dated
18.04.2018 Ex.WW1/1; copy of report of Labour Inspector dated
16.07.2018 Ex.WW1/2; copy of complaint given to Factory
LIR No. 3814/18 Digitally
signed by 13
RAMESH
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:38:40
+0530
Inspector dated 22.02.2018 Ex.WW1/3; copy of report of Labour
Department dated 20.03.2018 Ex.WW1/4; copy of aadhaar card
Ex.WW1/5; original demand notice dated 15.06.2018
Ex.WW1/6; postal receipt Ex.WW1/7 and copy of claim filed
before Conciliation Officer Ex.WW1/8.
18 I have perused the aforesaid documents. So far as
documents i.e. complaint dated 18.04.2018 Ex.WW1/1; copy of
report of Labour Inspector dated 16.07.2018 Ex.WW1/2; copy of
complaint given to Factory Inspector dated 22.02.2018
Ex.WW1/3; copy of aadhaar card Ex.WW1/5; demand notice
dated 15.06.2018 Ex.WW1/6; postal receipt Ex.WW1/7 and copy
of claim filed before Conciliation Officer Ex.WW1/8, are
concerned, this court is of the opinion that prima facie these
documents are not sufficient to establish that the worklady had
been working with the management permanently for last five
years.
19 So far as report of Factory Inspector dated 20.03.2018
Ex.WW1/4 is concerned, a perusal of this document shows that
the name of the worklady, in the list of workers found at the time
of inspection of management, is mentioned at serial no.29 and
her service period is mentioned as 03 years. The worklady in her
statement of claim as well as in her evidence by way of affidavit
Ex.WW1/A claimed that she had been working with the
management for last five years. Whereas the said report of
Factory Inspector reveals her service period as 03 years. There is
complete contradiction with regard to service period of the
worklady. The worklady did not examine the said Factory
Inspector as witness, who prepared his report Ex.WW1/4 to
prove as to on what basis the said Factory Inspector came to the
Digitally
signed by
RAMESH
LIR No. 3814/18 RAMESH KUMAR 14
KUMAR Date:
2022.01.10
16:38:48
+0530
conclusion that the service period of the worklady was 03 years.
Therefore, this court is of the opinion that document Ex.WW1/4
cannot be relied upon as this document is not sufficient to prove
service tenure of the worklady, rather this document only shows
that on the day of inspection of management's premises the
worklady found present there. Apart from document Ex.WW1/4,
there is no other documentary evidence produced by the
worklady like appointment letter, salary slip, attendance register,
wages register etc. to prove that she was in the employment of
the management for last five years till 23.03.2018.
20 In Automobile Association Upper India Vs. P.O. Labour
Court II & Anr. (supra), Hon'ble High Court of Delhi held
that:-
"14. engagement and appointment of the workman
in service can be established either by direct
evidence like existence and production of
appointment letter or written agreement, or by
circumstantial evidence of incidental and ancillary
records, in nature of attendance register, salary
registers, leave record, deposit of PF contribution,
ESI etc. The same can be produced and proved by
the workman or he can call upon and caused the
same to be produced and proved by calling for
witnesses who are required to produce and prove
these records. The workman can even make an
appropriate application calling upon the
management to call such records in respect of his
employment to be produced. In these circumstances,
if the management then fails to produce such
records, an adverse inference is liable to be drawn
against the management and in favour of the
workman". Digitally
signed by
RAMESH
LIR No. 3814/18 RAMESH KUMAR 15
KUMAR Date:
2022.01.10
16:38:55
+0530
21 In Babu Ram Versus Govt. of N.C.T. Delhi and Anr.
(supra), Hon'ble High Court of Delhi observed that:-
"....it is well settled principle of law that the person,
who sets up a plea of existence of relationship of
employer and employee, the burden would be upon
him. In this regard, the Hon'ble Supreme Court in
the case of Workmen of Nilgiri Coop. Mkt. Society
Ltd. V. State of T.N. and Others, (2004) 3 SCC
514 has approved the judgment of Kerala and
Calcutta High Court, where the plea of the
workman that he was employee of the company was
denied by the company and it was held that it was
not for the company to prove that he was not an
employee".
22 The worklady has failed to bring on record any cogent
evidence to prove that she had served the management
permanently for last five years till 23.03.2018. The worklady has
also not moved any application thereby summoning the records
of the management like appointment letter/attendance
register/wages register etc. to prove that she had been working
with the management permanently for last five years. Further
more, the worklady is also not aware about exact date of her
appointment with the management and she has just simply
claimed that she had been working with the management for last
five years.
23 From the aforesaid discussion coupled with the fact that
the worklady did not lead any cogent evidence to prove that she
had been working with the management permanently for last five
years. She also did not lead any evidence to show that she had
worked with the management after February 2018. Therefore, it
is held that the worklady has failed to prove that she had served
Digitally
signed by
LIR No. 3814/18 RAMESH 16
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:39:01
+0530
the management for last five years till 23.03.2018. In absence of
any cogent evidence, it stands proved that the worklady was
engaged by the management purely on temporary basis in the
month of January-February 2018 and she never worked with the
management after February 2018, hence the relationship of
master and servant between her and the management ceased
thereafter. Issue no.2 is therefore decided in favour of the
management and against the worklady.
ISSUE NO.1
24 Onus to prove this issue was also upon the worklady and
she had to prove that she has completed 240 days of continuous
service and also that her services were terminated by the
management illegally and/or unjustifiably.
25 In written arguments, Ld. Authorized Representative for
worklady stated that the services of the worklady were
terminated by the management illegally despite the fact that she
had completed 240 days of service in every calendar year.
26 On the other hand, it is stated by Ld. Authorized
Representative for management in written arguments that in
order to get relief the workman has to fulfill the requirements of
section 25 F of the Industrial Disputes Act and she has to prove
that she had been in continuous service for not less than one year
under an employer but in the present case the worklady did not
lead any evidence to prove that she had worked for 240 days
continuously with the management in a preceding year from the
alleged date of her 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. It is further
stated that the worklady did not lead any positive evidence to
Digitally
signed by
LIR No. 3814/18 RAMESH 17
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:39:08
+0530
prove this issue, nor moved any application seeking summoning
of the records being maintained by the management like
attendance register and salary register to prove this fact. Hence
the claim of the worklady is also liable to be dismissed on this
ground too.
27 In support of his submissions, Ld. Authorized
Representative for management has placed reliance on judgments
of case titled as Range Forest Officer Versus S.T. Hadimani,
2002 (93) FLR 179 (SC); and Surendranagar District
Panchayat and Anr. versus Jethabhat Pitamberbhai, 2006
LLR 250.
28 I have perused the record as well as documents placed on
record by the worklady in her testimony. Prima facie no
documentary evidence has been filed by the worklady by which
it can be appreciated that she had completed continuous service
of 240 days with the management in a preceding year from the
alleged date of her illegal termination. The worklady has also not
moved any application thereby summoning the records of the
management like attendance register/wages register etc. to prove
that she had completed continuous service of 240 days with the
management in a preceding year from the alleged date of her
illegal termination.
29 In Range Forest Officer v. S.T. Hadimani (supra), the
Hon'ble Supreme Court of India 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
Digitally
LIR No. 3814/18 signed by
RAMESH
18
RAMESH KUMAR
KUMAR Date:
2022.01.10
16:39:14
+0530
workman had, in fact, worked for 240 days in a
year. No proof of receipt of salary or wages for 240
days or order or record of appointment or
engagement for this period was produced by the
workman. On this ground alone, the award is liable
to be set aside".
30 In Surendranagar District Panchayat and Anr. v.
Jethabhat Pitamberbhai (supra), the Hon'ble Supreme Court of
India 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".
31 Keeping in view the fact that the worklady has not led any cogent evidence to prove that she had completed continuous service of 240 days with the management in a preceding year from the alleged date of her illegal termination. Therefore, it is held that the claim of the worklady is liable to be dismissed on this ground alone.
32 Since the relationship of master and servant between the worklady and the management ceased after February 2018 and since she had not completed continuous service of 240 days with the management in a preceding year from the alleged date of her illegal termination, therefore, it is held that the services of the worklady were not terminated by the management illegally Digitally LIR No. 3814/18 signed by 19 RAMESH RAMESH KUMAR KUMAR Date:
2022.01.10 16:39:21 +0530 and/or unjustifiably in violation of provisions of section 25 F, 25 G and 25 H of the Industrial Disputes Act, 1947. This issue is also decided in favour of the management and against the worklady.
RELIEF (ISSUE NO.3)
33 In view of the findings of the court on issues no.1 and 2, it is held that the worklady 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 10.01.2022 THROUGH VIDEO CONFERENCING Digitally signed by RAMESH RAMESH KUMAR KUMAR Date:
2022.01.10 16:39:28 +0530 (RAMESH KUMAR-II) PRESIDING OFFICER:LABOUR COURT-06 ROUSE AVENUE DISTRICT COURT NEW DELHI LIR No. 3814/18 20