Delhi District Court
Sh. Yagnath Chaturvedi vs M/S Vinesh Traders (P) Ltd on 21 January, 2020
IN THE COURT OF SH. PAWAN KUMAR MATTO, PRESIDING
OFFICER, LABOUR COURT NO. IX, ROUSE AVENUE COURTS: NEW
DELHI
LIR No. 4867/16
Date of institution 14.02.2014
Date of Award 21.01.2020.
Sh. Yagnath Chaturvedi
S/o Sh.Shiv Baran Chaturvedi
Permanent Address: Village Post Deeh
H.P.O. Badli Rai, Police Station Badli Rai,
Tehsil Mushafirkhana, Distt. Sultan Pur, U.P.
C/o Ramroop Pal
D-35, Mansa Ram Park
Uttam Nagar,New Delhi-59 ......Claimant (workman)
Vs.
M/s Vinesh Traders (P) Ltd
Regd. Office: E-6, Bali Nagar
New Delhi-15
and Admn. Office: C-122, Man Sarover Garden
New Delhi-15 ......Management
AWARD
1. This award of mine will dispose off the reference sent to the
court by the office of Dy. Labour Commissioner, Labour
Department, Distt. West, Govt. of the National Capital Territory of
Delhi, arising between the parties as named herein above, vide
notification No. F.3(362)/13/Ref./WD/Lab./236 dated 06.02.2014
with the following terms of reference:-
"Whether the services of workman Sh.
Yagnath Chaturvedi s/o Sh.Shiv Baran
LIR No. 4867/16 Page No.1 /39
Chaturvedi 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. The claimant has filed the statement of claim stating
therein that the claimant was appointed as an accountant in the
management in the month of November, 1995 and he
continuously worked therein till 05.06.2013 and his last drawn
salary was Rs. 17,500/- per month. He worked in the
management sincerely and without any complaint.
3. The claimant has also stated that the management was
flouting all the rules and regulations and the claimant was not
provided legal facilities viz. Provident funds, gratuity, ESIC and
bonus etc. and when, the claimant had demanded for the legal
facilities, the management got annoyed and orally terminated his
services w.e.f. 06.06.2013 and withheld his salary for the months
of April and May, 2013
4. The claimant has also stated that on 06.06.2013, the
claimant was told by the management not to visit its office again,
as his services were no more required. The claimant has also
alleged that his signatures were obtained on blank papers and
vouchers.
5. The claimant has also stated that he was not allowed to
LIR No. 4867/16 Page No.2 /39
enter in the premises of the management, despite of his best
efforts and he is still ready and willing to continue his job.
6. He has alleged that the termination of his services is
absolutely illegal, unjustified and against the principles of natural
justice. He has also stated that he could not get any job despite
of his best efforts, after the termination of his services.
7. The claimant has also stated that he had sent a legal notice
dated 12.07.2013 to the management through speed post, but,
despite of service of the legal notice, management did not
reinstate the services of the claimant and the management had
sent a reply to the said legal notice, which was based on the false
and fabricated facts.
8. The claimant has also stated that he had approached to the
management time and again and requested it to reinstate his
services and to pay his salary, bonus, funds and other benefits,
but, all in vain.
9. The claimant has also stated that he is residing with the
family members in a rented accommodation and in view of illegal
termination of his services, the claimant and his family members
are suffering lot of problems and thus, all of them are at the
verge of starvation.
10. The claimant has also stated that he had filed the
statement of claim before the Dy. Labour Commissioner, F-Block,
LIR No. 4867/16 Page No.3 /39
(North West), Karampura, Delhi bearing no. 65/14 and the
Hon'ble Dy. Labour Commissioner issued a letter to the claimant
and he had filed the said letter/report of failure in the court and
he has prayed for directing to the management for reinstate his
services, to give the salary since April, 2013 with full back wages
and other benefits like bonus, gratuity, funds etc. and also sought
directions for the management to give Rs. 1,00,000/- as
compensation for mental, physical and social harassment.
11. The notice of statement of claim was issued to the
management. On completion of services, the management had
filed the written statement stating therein that the claimant has
suppressed the material facts from the court and the present
case has been filed with the malafide intention to extort the
money from the management. It is also stated that the claimant
was never in the employment of the management and the
management never had any occasion to employee a regular
accountant for its business and stated that the management is
indulged in the business of trading of coal and whenever, the
management needed the services of the claimant for stream-
lining its ledger accounts etc., were taken on casual basis and the
claimant was paid on the day to day basis. So, the statement of
claim is not maintainable.
12. It has also stated that there is no Industrial Dispute
regarding the termination of services of the claimant by the
management and stated that the claimant did not complete 240
days of continuous of his services in the management, prior to
LIR No. 4867/16 Page No.4 /39
the alleged termination of his services and stated that since the
claimant had worked in the management as casual/daily wage
worker, as he was called upon, as and when, management
required his services, so, the statement of claim is liable to be
rejected.
13. Replying to the statement of claim on merit, the
management has denied that the claimant was appointed in the
management as accountant in the month of November, 1995 or
that he had continuously served in the management till
05.06.2013 or that his last drawn salary was Rs. 17,500/- and
stated that the management is running business of Trading the
Coal and whenever, the management needed, the services of the
claimant for streamlining its ledger account, were taken on
casual basis and he was paid on the day to day basis for the
same and as per the nature of the work of the management, the
management never had occasion to appoint any full time
accountant.
14. The management has denied to have illegally
terminated the services of the claimant. It has also denied that it
has violated any rule or regulation. The management has also
denied that the claimant was not given any facility like provident
fund,gratuity, ESIC or that he had raised demand for the same or
that his services were orally terminated on dated 06.06.2013 and
stated that since, this claimant was engaged by the management
on casual basis, as per the requirement and he was paid on day
to day basis for the days, he was engaged by the management,
LIR No. 4867/16 Page No.5 /39
therefore, the question of terminating the services of the
claimant or not paying his salary for the month of April or May,
2013 does not arise.
15. The management has also stated that since, the
claimant was not in the service of the management, so, the
management has not terminated his services. It has also denied
to have said that the claimant should not visit its office again or
that his services were no more required or that the management
had obtained signatures of the claimant on blank papers or
vouchers. The management has also stated that it had sent the
reply dated 25.07.2013 to the legal notice to the Advocate of the
claimant and apprised him about the true and correct facts, but,
instead of withdrawing the said legal notice, claimant had chosen
to approach the court by way of filing statement of claim. The
management has denied its relationship of employer and
employee with the claimant. Management has also denied that
the claimant is unemployed and alleged that as per the
information received by the management, the claimant is
gainfully employed and after denying the other allegations
levelled against the management, the management has prayed
for rejection of the statement of claim and also for passing an
award in favour of the management and against the claimant.
16. The claimant has filed rejoinder to the written
statement of management and denied the averments made in
the written statement and reiterated the contents of his
statement of claim therein.
LIR No. 4867/16 Page No.6 /39
17. On the basis of the pleadings, following issues were
framed on 04.09.2014.
I. Whether the workman was regular employee
of the management since November, 1995 till
05.06.2013 as alleged in the statement of claim?
OPW
II. In the terms of the reference.
18. In order to prove his case, the claimant has examined
himself as WW1 vide his affidavit Ex. WW1/A and in one way or
the other, he has retreated the contents of his statement of claim
therein. He has relied upon the documents Ex. WW1/1 to Ex.
WW1/3. He was cross examined by the AR of the management.
19. The claimant has also examined Sh. Monu Kumar Rohila
as WW2 vide his affidavit Ex.WW2/A. He has relied upon the
documents Ex. WW1/2 and copy of police complaint dated
19.03.2011 mark B. He was cross examined by ld. AR of the
management. The claimant did not examine any other witness.
20. The management has examined its Director Sh. Vinesh
Gupta, as MW1 vide his affidavit Ex. MW1/A. He has relied upon
LIR No. 4867/16 Page No.7 /39
the record of attendance-cum-wages register Ex. MW1/1 reply to
the legal notice dated 25.07.2013 Ex. MW1/2. he was cross
examined by ld. AR for the claimant. Management has not
examined any other witness.
21. I have heard Authorized Representatives of both the
parties and perused the record.
22. The Ld. AR of the claimant has submitted that this
claimant was appointed in the management as Accountant in the
month of November, 1995. He worked therein till 05.06.2013 and
his last drawn salary was Rs. 17500/- and submitted that on
dated 06.06.2013 his services were illegally terminated by the
management and the management has also withheld the salary
of the claimant for the months of April and May, 2013. He has
also submitted that the claimant had served the legal notice to
the management. Thereafter he had filed the case in the Labour
Office and the matter was referred to this court and submitted
that the management has taken the plea that this claimant was
working on contract basis and submitted that the claimant has
examined himself and proved his case and submitted that
LIR No. 4867/16 Page No.8 /39
contract labour is barred by law. He has also submitted that the
claimant has relied upon the certificate Ex. WW1/1 dated
03.08.2011, issued by the Director of the management, wherein
it is certified that this claimant was employee of the
management. He has also submitted that the claimant has also
filed the computer generated copies of ledgers for the year 2010
to 2013 (running in three pages), wherein, the annual salary of
the claimant is mentioned, which is Ex. WW1/2. He has also
submitted that the Director of the management namely Sh.
Vinesh Gupta has been examined as MW1 and during his cross
examination he was directed to produce the record of computer
generated ledgers, but, this MW1 did not produce the ledgers
account for the year 2010 to 2013, so, the adverse inference is
liable to be drawn against the management for non-production of
the ledgers and from the copies of the ledger account produced
by the claimant, it is proved that the claimant was the employee
of the management. He has also submitted that the Monu Kumar
Rohila (WW2) has also proved that this claimant was serving, as
Accountant in the management, during the period this Sh. Monu
Kumar Rohila was serving in the management, whose services
were also illegally terminated by the management and submitted
LIR No. 4867/16 Page No.9 /39
that since the management has illegally terminated the services
of the claimant, so, he is entitled to be reinstated with full back
wages. He has relied upon the judgement titled as Gauri Shankar
vs State of Rajasthan, Civil Appeal no. 3701/2015.
23. On the other hand, the Ld. Authorised Representative of
the management has submitted that the claimant has claimed in
his statement of claim that he was serving in the management
since November, 1995 and served therein till 05.06.2013 and on
dated 06.06.2013 his services were illegally terminated and
submitted that this claimant was never regular employee of the
management, he never worked in the management for 240 days
continuously prior to the alleged termination of his services on
06.06.2013 and submitted that it was incumbent on the part of
the claimant to prove that he had served in the management for
the period, as claimed by him and submitted that this claimant
was called in the management to do the work, if needed and
further submitted that this claimant was paid by the
management on day to day basis and also submitted that since
this claimant was not regular employee of the management, so,
the management did not maintain the record of the working of
LIR No. 4867/16 Page No.10 /39
the claimant in the management. He has also submitted that the
management has produced the record of attendance and wages
register since April 2010 to 2012 and submitted that the name of
this claimant is not mentioned therein. He has also submitted
that the claimant has relied upon the alleged certificate Ex.
WW1/1, but, it is forged and fabricated documents and submitted
that the claimant has claimed that it was issued by Sh. Vinesh
Gupta, who has been examined in the court as MW1. But, during
his cross examination, he has categorically denied that he has
issued the same or it bears his signature on Ex. WW1/1. He has
also submitted that the claimant has failed to bring on record any
cogent evidence that Ex. WW1/1 was issued to the claimant by
the management. He has also submitted that WW1/2 is alleged
computer generated copies of ledgers, but, the same are not
signed by any person of the management and submitted that
since Ex. WW1/2 (colly) is the computer generated copies, so,
same cannot be relied upon. He has also submitted that at the
time of cross examination of MW1, the ledgers of the
management could not be traced, so, the same could not be
produced, so, no adverse inference can be drawn against the
management and submitted that the claimant has examined Sh.
LIR No. 4867/16 Page No.11 /39
Monu Kumar Rohila as WW2, but, Manu Kumar Rohila was never
employee of the management and further submitted that this
Monu Kr. Rohila, who has been examined as WW2, has failed to
prove that he was ever employee of the management. He has
also submitted that the Monu Kumar Rohila has filed a photocopy
of complaint mark B, allegedly filed by the management to the
police, but, the same does not bear the signature of any person
of the management and submitted that the claimant was having
opportunity to summon the record from the concerned police
station regarding the said complaint mark B and submitted that
since, it is a forged and fabricated document, so the claimant did
not choose to summon any person to prove the said complaint
and submitted that this Monu Kumar Rohila failed to prove on
record that he was ever employee of the management, so, his
testimony cannot be relied upon. He has also submitted that the
claimant has relied upon the copies of ledgers Ex. WW1/2 (colly),
but, the claimant has never pleaded in his statement of claim
that in the ledgers of the management, the name of the claimant
was ever mentioned or his annual income was mentioned therein
and submitted that since the Ex. WW1/2(colly) are forged and
fabricated documents, it was not pleaded in the statement of
LIR No. 4867/16 Page No.12 /39
claim, so, the same cannot be relied upon, as same are prepared
subsequently. He has also submitted that the claimant has failed
to prove on record that this claimant had ever worked in the
management for the period as claimed by him or continuously for
period of 240 days, prior to the alleged termination of services of
the claimant on dated 06.06.2013 and submitted that since the
claimant has failed to prove on record that he was regular
employee of the management since November, 1995 till
05.06.2013. He has also failed to prove that his services were
illegally terminated by the management on 06.06.2013, so, both
the issues are liable to be decided against the claimant. He has
also submitted that the ledgers for the year 2010 to 2013 could
not be traced out at the time of cross examination of MW1, so, no
adverse inference can be drawn against the management, as the
claimant was under the obligation to prove that he was the
regular employee of the management and the claimant has failed
to bring on record any cogent evidence to prove that he was
regular employee of the management and the management has
produced on record the attendance and wages record for the
year April, 2010 to March,2012, wherein the name of the
claimant is not found and submitted that even if the
LIR No. 4867/16 Page No.13 /39
management could not produce the ledgers in the court, no
adverse inference can be drawn, as no suggestion was ever put
by the AR of the claimant to MW1 that either he has deliberately
withheld the said record or it was against the management. In
the absence thereof, no adverse inference can be drawn, as the
claimant was under obligation to prove his case. He was
supposed to stand on his own legs and in the absence of any
cogent evidence Ex. WW1/1 and Ex. WW1/2 cannot be relied
upon, so, the statement of claim filed by the claimant may be
dismissed.
24. I have given thoughtful consideration to the submissions
made by the Ld. Authorized Representatives for the claimant and
management and perused the record.
25. The perusal of the record reveals that the claimant has
claimed that he was appointed as an Accountant in the
management in the month of November,1995 and he had
continuously worked in the management upto 05.06.2013 and his
last drawn salary was Rs. 17,500/- per month and his services
have been illegaly terminated by the management on
LIR No. 4867/16 Page No.14 /39
06.06.2013. So, the burden of proving these material facts was
on the claimant and burden of proving both the issues was on the
claimant. In order to avoid repetition, both the issues have been
taken together for discussion.
26. In order to prove his case, the claimant has examined
himself as WW1, vide his affidavit Ex. WW1/A, wherein the
claimant has reiterated the contents of his statement of claim.
He has relied upon the certificate allegedly issued by the Director
of the management Ex. WW1/1, computer generated copies of
ledgers Ex. WW1/2 (colly) since 1st April 2010 to 31st March, 1st
April 2011 to 31st March, 1st April 2012 to 31st March (running in
three pages) (wherein the annual salary of the claimant is alleged
to have been mentioned) and copy of legal notice dated
12.07.2013 Ex. WW1/3.
27. The claimant was cross examined by ld. Authorised
Representative of the management and during his cross
examination, he has stated that he is graduate. He is aware of
the contents of his affidavit Ex. WW1/A. The management is
engaged in the trading work of iron steel, coal etc. He has denied
LIR No. 4867/16 Page No.15 /39
that the work of the management is not that of permanent in
nature. He has voluntarily deposed that as per his knowledge, the
management had a turnover of 80 to 82 crores per annum
approximately. He has admitted that he is not in possession of
any such document to show such turnover of the management.
He has further deposed that he does not have any document to
show that he was getting a monthly salary of Rs. 17,500/-. He has
denied the suggestion that he was paid the amount of
renumeration per day or that whenever, the management
required his services, the management used to call him and after
completion of his work, he used to leave the office of the
management and he was paid accordingly. He has denied that
suggestion that the nature of his work was not permanent. He
used to work as an Accountant. He has denied the suggestion
that he was working on casual basis and stated that apart from
the management (during the period November 1995 to
05.06.2013) he had never worked for any other concerned, as
Accountant. He has denied the suggestion that he used to work
for other companies also, as Accountant. He has also deposed
that in support of his employment, he has already placed on
record Ex. WW1/1 issued by the management. He has deposed
LIR No. 4867/16 Page No.16 /39
that he was never issued any appointment letter by the
management except Ex. WW1/1 dated 03.08.2011.
28. He has also deposed that the management is a Pvt. Ltd.
Company and Shri Vinesh Gupta and Sh. Hanuman Prasad Gupta
are its Directors. The management had never issued him any
identity card. He has also deposed that Ex. WW1/1 was issued to
him to show before various authorities, where, he used to go in
connection with the work of the management that he was its
employee. He has identified the signatures of Mr. Vinesh Gupta
on written statement at point A and B and stated that he was not
sure whether on letter of authority dated 16.07.2014 signature
appearing to be of Mr. Vinesh Gupta or not. He has admitted Ex.
WW1/1 has not been signed by Sh. Hanuman Prasad Gupta, to
whom he knew as second Director of the management company.
He has denied that Ex. WW1/1 does not bear the signature of Sh.
Vinesh Gupta at point X. He has denied the suggestion that Ex.
WW1/1 has never been issued by the management or that it is a
fabricated document. He has admitted that Ex. WW1/2 does not
bear the signature of the management. He has voluntarily stated
that since the same is a computer generated document, so, it
LIR No. 4867/16 Page No.17 /39
does not require any signature. He has denied the suggestion
that Ex. WW1/2 is a fabricated document. He has admitted that
the management used to mark the attendance of its permanent
employees. He has admitted that the permanent employees
used to get salary, as per their attendance. He has denied the
suggestion that the management never employed more than 10
workers at any point of time. He has voluntarily deposed that
sometimes the management had eight workers and sometimes
10-15 workers.
29. When, this witness was asked that the management was
not covered under the ESIC and PF, then he has replied that he
was not getting the said facility, rest was not known to him.
When this claimant was asked that whether he has filed on
record any document to show that he had worked for more than
240 days in the management, to which, he had replied that he
had placed on record Ex. WW1/1 and Ex. WW1/2 in support of his
employment with the management.
30. He has denied the suggestion that he had not completed
240 days service with the management. He has admitted that
LIR No. 4867/16 Page No.18 /39
and during the employment, he did not file any complaint in
writing to any Labour Authority regarding not providing him legal
facilities by the management and stated that he used to make
oral demand for the said facilities from the management, but, no
heed was paid to his request. He has admitted that he had not
filed any document to show that management did not pay him
any salary for the month of April, May, 2013. He has also
admitted that he has not filed any document to show that he had
worked with the management upto 05.06.2013. He voluntarily
deposed that Ex. WW1/1 and Ex. WW1/2 have been filed by him
in support of his employment. He has further deposed that he
was never issued any termination letter by the management. He
has denied the suggestion that he was working on casual basis
with the management and his services were never terminated by
the management. He has admitted that he did not make any
police complaint regarding taking his signatures on blank papers.
He has further deposed that he was not aware whether the
management has stopped functioning. He has deposed that he is
married and having three children. Their education has been
completed. He is residing in his parental village. He has deposed
that he has agricultural land about three Beeghas at there.
LIR No. 4867/16 Page No.19 /39
Whatever meager income he gets from agricultural land, he is
utilizing for himself. He has admitted that he and his wife are
dependent upon his income. He has denied the suggestion that
since, he was getting handsome income from agriculture or that
he had left his employment with the management or that he has
deposed falsely.
31. Sh. Monu Kumar Rohilla has been examined as WW2 vide is
affidavit Ex. WW2/A wherein, he has deposed that he was
working as accountant with M/s Vinesh Traders Pvt. Ltd. Since
September 2008 to 9th March 2011 and workman Y.N. Chadurvedi
was working as an accountant with the management during the
period, he was serving with the management and he was already
appointed prior to this witness and this witness was informed
that he was working since 1995. He has also deposed that this
claimant was discharging the job of an accountant, but the
management was not maintaining their record. He has also
deposed that this claimant was working on regular basis with the
management and this witness was also working on regular basis
and both of them used to get salary at the end of the month and
they were paid salary through vouchers and the management
LIR No. 4867/16 Page No.20 /39
has illegally terminated the services of this witness on
19.03.2011 and false complaint was lodged against this witness
in the Police Station Kirti Nagar on dated 19.03.2011 and he was
interrogated by the police and later on the said complaint was
found to be false and this witness has seen the claimant working
in the management since 2008 to 2011. He has relied upon the
document which is already exhibited as Ex. WW1/2 and
photocopy of police complaint dated 19.03.2011 as Mark B.
32. This witness was cross-examined by the ld. Authorised
Representative of the management and during his cross
examination, he has admitted it to be correct that he has not
received any summons from the court. He was appearing, as a
witness at the request of the claimant and when, he was asked as
to whether he has filed any document to show that he was
employed by the management, to which, he has replied that he
has filed on record document Mark B. He has further deposed
that he doesn't have any other document.
33. He has also further deposed that he possesses the
document to show that he was working with the management, as
LIR No. 4867/16 Page No.21 /39
an Accountant during the period from 2008 to 2011, but, at
present, he is not having the same with him. He has denied that
he was never an employee of the management or that
management has never made any complaint (Mark B) against
him and when he was asked as to whether he possesses
appointment letter or the salary slip to show that he was
employed with the management, then, he has replied that he
was not given any appointment letter by the management and
no salary slip used to be given and salary was paid after getting
his signature on the vouchers. He has denied that he was
appearing as a witness at the instigation of claimant or that he
has filed false affidavit or that he has deposed falsely.
34. The management has examined its Director Sh. Vinesh
Gupta, as MW1 vide his affidavit Ex. MW1/A, stating therein, that
he is one of the Directors in the management. The claimant was
never in the employment of the management. The management
never employed a regular accountant for its business. The
management is indulged in the business of trading of coal.
Whenever, the management needed, the services of the
claimant, were obtained for streamlining, its ledger accounts etc.
LIR No. 4867/16 Page No.22 /39
and the services of the claimant were obtained by the
management on casual basis and claimant was paid on day to
day basis. He has further deposed that this claimant did not
complete 240 days continuous services in the management prior
to the alleged termination of his services and this claimant had
worked in the management as casual/daily wage worker that too,
when the management required his services, therefore, the
question of terminating the services or not paying his salary for
the month of April and May, 2013 does not arise. He has also
deposed that neither the claimant was in service of the
management nor the management had ever terminated his
services. He has denied to have obtained the signatures of the
claimant on blank papers and vouchers. He has also deposed
that the management has received false and frivoulous notice
dated 12.07.2013 and he had duly replied on 25.07.2013 to the
Advocate of the claimant, but, instead of withdrawing the legal
notice the claimant had chosen to approach to the court by way
of filing the present case in utter misuse of process of law. He has
also deposed that there is no relationship of employer and
employee between the parties to the present lis. The
management had never terminated the services of the claimant.
LIR No. 4867/16 Page No.23 /39
The statement of claim of the claimant is liable to be dismissed.
He has relied upon the record of attendance-cum-wages register
Ex. MW1/1 and reply to the legal notice dated 25.07.2013 Ex.
MW1/2. He was cross examined by ld. AR for the claimant.
35. During his cross examination he has admitted that the
management is a private limited company and it was
incorporated in March, 1993. The authorized Capital of the
management was Rs. 1 crore. He has further deposed that at
present Mrs. Veena Gupta is the co-Director of the management.
He further deposed that at the time of disputed period of claim of
the claimant for the year 1995-2013, his father late Sh. Hanuman
Prashad was the Chief/Managing Director of the management
company with him as co-Director. He has denied that he was not
authorized person to depose on behalf of the management. He
has voluntarily deposed that he has filed Resolution of Board in
this regard. On seeing the legal notice dated 10.08.2017, issued
by the claimant for production of documents, he has admitted
that the said legal notice Ex. MW1/W1 bears the correct address
of the management. He had admitted that he had not brought
the ledger Accounts of the management for the period 2010-
LIR No. 4867/16 Page No.24 /39
2013, as per the directions of the court vide order dated
18.11.2017. There is no written contract between the claimant
and the management for his appointment. He has voluntarily
deposed that the claimant was called, as and when his services
were required. He has further deposed that apart from the
claimant, no other accountant was hired by him for account
purposes, as rest of the work was done by himself. He has
admitted that the accounts were regularly maintained by the
management. The record/accounts of the management was also
audited by Auditors. He has denied that the claimant was
regularly working with the management since November, 1995 or
that his last drawn salary was Rs.17,500/-. He has also deposed
that the payment to the claimant was made on the very same
day, he used to come. He has further deposed that the same
was made in cash. He has further deposed that some times the
claimant was paid Rs.200/-, some times the claimant was paid
Rs.500/- or Rs.600/- for half day. No voucher was signed in this
respect. He has further deposed that the management never
maintained any record pertaining to the claimant, as he was not
regular employee. He has further deposed that the management
used to show the expenses incurred for claimant, in Income Tax
LIR No. 4867/16 Page No.25 /39
Return of the management, as general expenses. He has denied
that he has deposed falsely in this regard or that the claimant
was a regular employee. He has further deposed that no person
by the name of Monu Rohilla was working, as accountant with the
management from the period 2008 to 2011, no Police Complaint
against him was lodged. He has further deposed that the
management used to call the claimant telephonically one or two
days before, as per his availability. He has also deposed that the
document already Ex.WW1/1 does not bear his signature at point
X. He has further deposed that the letter head used for the
preparation of the Ex.WW1/1 does not belong to the
management. He has further deposed that he is confronted with
document Ex.WW1/1 for the first time and hence, the question of
making complaint for forging his signature on the said document
does not arise. He has further deposed that prior to that day, he
was not having any knowledge of document Ex.WW1/1. He can
not admit or deny due to laps of time whether document already
Ex.WW1/2 (Colly 3 pages) belongs to the management or not. He
has further deposed that he had appeared before the Conciliation
Officer, and admitted that the management did not file any reply
to the statement of claim before the conciliation officer. He has
LIR No. 4867/16 Page No.26 /39
also deposed that he had not sought any permission from any
government agency for hiring the claimant on temporary
/contractual basis. He voluntarily deposed that he was engaged
in the business of trading, hence, to his knowledge, no such
permission is required. He has admitted that the services of the
claimant were never hired through a contractor and the
management directly used to deal with the claimant and he used
to be called telephonically. He has denied that the claimant was
in regular employment of the management from November, 1995
to 05.06.2013 and on 06.06.2013 his services were illegally
terminated without any show cause notice, charge-sheet or
enquiry. He has denied that the management has illegally
withheld the salary of the claimant for the period April-May, 2013
and five days of June, 2013. He did not remember the exact day,
when the claimant had lastly performed his duties with the
management. He has denied that he has deposed falsely.
36. The perusal of the record reveals that the claimant has
claimed that he served in the management for since November,
1995 as an Accountant and his last drawn salary was Rs. 17,500/-
per month and his services have been illegally terminated by the
LIR No. 4867/16 Page No.27 /39
management on dated 06.06.2013. The management has taken
the plea that the claimant was not the employee of the
management and whenever, the management needed, the
services of the claimant for streamlining, the ledger account etc.
were obtained. He did not work in the management for a period
of 240 days continuously prior to alleged termination of his
services on 06.06.2013, so, it was incumbent on the part of the
claimant to prove that he worked in the management since
November, 1995 till 05.06.2013 continuously and his services
have been illegally terminated by the management on
06.06.2013.
37. The claimant has examined himself as WW1, vide his
affidavit Ex. WW1/A and he has also relied upon the documents
as discussed hereinabove. The ld. Authorized Representative for
the claimant has submitted that the Director of the management
had issued the certificate Ex. WW1/1. The management has
denied to have issued the same. The claimant has claimed that
Ex. WW1/1 bears the signature of the Director of the
management namely Vinesh Gupta, who has been examined as
MW1, but, MW1 has denied to have issued this certificate. He has
LIR No. 4867/16 Page No.28 /39
also denied his signature thereon. The claimant during his cross
examination has identified the signatures of Sh. Vinesh Gupta on
the written statement at point A and B. The alleged signature of
Vinesh Gupta on Ex. WW1/1 does not match with the admitted
signatures of Vinesh Gupta on the written statement at point A
and B. Since, the claimant has claimed that Ex. WW1/1 was
issued by the Director of the management, so, it was incumbent
on the part of the claimant to prove that it was issued by the
management, as the management has denied to have issued the
same. The claimant could examine the handwriting expert to
prove the signature of Vinesh Gupta on Ex. WW1/1, but, he did
not choose to examine any handwriting expert to prove the
same. So, in the absence of any cogent evidence, it cannot be
relied upon. The ld. AR for the claimant has also submitted that
the management has claimed that the claimant was kept on
contract and the contract Labour is barred by law. But, the
perusal of the pleading of the management reveals that the
management has nowhere pleaded that any contract was
entered into between the management and the claimant or that
the claimant was a contract Labour, so this court does not find
any force in such submission of the ld. AR of the claimant.
LIR No. 4867/16 Page No.29 /39
38. The ld. AR of the claimant has submitted that the claimant
has also relied upon the documents Ex. WW1/2 (colly), which are
alleged to be the copies of ledgers of the management for the
period 01.04.2010 to 31st March, 01.04.2011 to 31st March and
01.04.2012 to 31st March,but, these are the computer generated
copies and they do not bear the signature of any official of the
management and the ld.Authorised Representative for the
claimant has submitted that MW1, during his cross examination
did not produce the same ledgers of the management, so, an
adverse inference is liable to be drawn. In the light of the
judgment passed by the Hn'ble Supreme Court of India in Gauri
Shankar vs State of Rajasthan (supra), this court has perused the
said judgement.
39. But, as it is settled principle of law that the claimant has
to stand on his own legs to prove his case and even otherwise,
the Lordship of Supreme Court in case R.M. Yellatti v. The
Asst. Executive Engineer, JT 2005 (9) SC 340: 2006 LLR 85
(SC), had observed:
"Analyzing the above decisions of this court, it is
clear that the provisions of the Evidence Act in terms
LIR No. 4867/16 Page No.30 /39
do not apply to the proceedings under section 10 of
the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgments, we find that this court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked for 240 days in
a given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent
evidence, both oral and documentary. In cases of
termination of services of daily waged earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus in
most cases, the workman (claimant) can only call
upon the employer to produce before the court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage
register, the attendance register etc. Drawing of
adverse inference ultimately would depend
thereafter on facts of each case. The above decisions
however make it clear that mere affidavits or self-
serving statements made by the claimant / workman
will not suffice in the matter of discharge of the
burden placed by law on the workman to prove that
he had worked for 240 days in a given year. The
above judgments further lay down that mere non-
production of muster rolls per se without any plea of
suppression by the claimant workman will not be-
the ground for the tribunal to draw an adverse
inference against the management."
40. Coming to the case in hand, the claimant has nowhere
pleaded in his statement of claim that in the record of ledgers of
the management, the annual income of the claimant is
mentioned. The ld. AR for the claimant has nowhere suggested to
the MW1 that he has deliberately suppressed the record of ledger
for the reasons that the said record was against the
management. So, in the given circumstances, no adverse
LIR No. 4867/16 Page No.31 /39
inference can be drawn against the management.
41. The ld. AR of the claimant has claimed in his statement of
claim that he could not get any job and he and his family
members were at the verge of starvation. But, at the time of
cross examination of this workman, the claimant has deposed
that he has agricultural income from the agricultural land. Thus,
his testimony is found to be contrary to his statement of claim.
42. The Ld. Authorized Representative for the claimant has
submitted that from the testimony of Mr. Monu Kumar Rohila,
who has been examined as WW2, it is proved on record that the
claimant was serving in the management since November, 1995.
But, ld. AR of the management has submitted that Sh Monu
Kumar Rohila (WW2) was never employee of the management
Monu Kumar Rohila (WW2) also failed to prove that he was ever
employee of the management.
43. This court has perused the testimony of the Monu Kumar
Rohila, who has been examined as WW2. No doubt, that WW2
has claimed that he was also serving in the management as an
Accountant since September, 2008 and also claimed that this
claimant was working as an Accountant in the management since
1995 and the WW2 has relied upon the copy of complaint Mark B,
which is alleged to have been filed by the management against
Monu Kumar Rohila (WW2) in the Police Station Kirti Nagar. Since,
the management has denied to have filed any such complaint
(mark B) against Monu Kumar Rohila (WW2) in the Police Station
LIR No. 4867/16 Page No.32 /39
Kirti Nagar, so, it was incumbent on the part of the claimant to
prove that the management had filed the complaint (Mark B)
against WW2 (Monu Kumar Rohila). Since, the claimant was
having opportunity to summon the witness from the Police
station Kirti Nagar to prove the alleged complaint (mark B), but,
the claimant did not make any effort to summon any witness
from the PS Kirti Nagar to prove Mark B. As , the claimant did not
summon any witness from the Police station Kirti Nagar to prove
the copy of complaint mark B and the claimant did not bring on
record any cogent evidence to prove that this Monu Kumar Rohila
(WW2) was ever employee of the management and since, the
claimant has failed to bring on record any cogent evidence in this
regard, so, this court is inclined to hold that the claimant has
failed to prove that WW2 (Monu Kumar Rohila) was ever
employee of the management, so, in the absence of any cogent
evidence on record, the testimony of WW2 does not inspire any
confidence. Since, WW2 has failed to bring on record any cogent
evidence to show that WW2 was ever employee of the
management, so, testimony of WW2 does not inspire any
confidence.
44. Since the claimant has claimed that he worked in the
management since, November, 1995 and his services have been
illegally terminated by the management on dated 06.06.2013
whereas, the management has denied that this claimant had
worked in the management for the said period as claimed by the
claimant or for a period of 240 days, so, it was incumbent on the
part of the claimant to prove that he had worked in the
LIR No. 4867/16 Page No.33 /39
management since November,1995 till 05.06.2013 or that he
worked in the management for 240 days prior to the alleged
termination of his services on 06.06.2013.
45. In Range Forest Officer v. S.T. Hadimani, 2002 (93)
FLR 179 (SC), the Hon'ble Supreme Court held that it was then
for the claimant to lead evidence to show that he had in fact
worked for 240 days in the year preceding his termination. Filing
of an affidavit is only his own statement in his favour and that
cannot be regarded as sufficient evidence for any Court or
Tribunal to come to the conclusion that a workman had, in fact,
worked for 240 days in a year. No proof of receipt of salary or
wages for 240 days or order or record of appointment or
engagement for this period was produced by the workman. On
this ground alone, the award is liable to be set aside.
46. 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.
LIR No. 4867/16 Page No.34 /39
47. 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 25F of the Industrial Disputes Act, in the absence of
evidence on record the Labour Court and the High Court have
committed an error in law and fact in directing reinstatement of
the respondent-workman.
48. No doubt that claimant has examined himself as WW-1 vide his affidavit Ex.WW-1/A, wherein, he has claimed that he worked in the management since November, 1995 and his services have been illegally terminated by the management on dated 06.06.2013. The claimant was under obligation to prove that he had worked in the management for the said period, as claimed by him or at least for a period of 240 days prior to the alleged termination of his services, but, this court is of the considered opinion that the self serving affidavit of claimant Ex.WW-1/A and certificate Ex. WW1/1 allegedly issued by the director of the management and copies of the ledgers Ex. WW1/2 (colly) since 1st April 2010 to 31st March, 1st April 2011 to 31st March, 1st April 2012 to 31st March, are not sufficient to prove that the claimant has served in the management for the said period, as the LIR No. 4867/16 Page No.35 /39 management has denied to have issued certificate Ex. WW1/1 and also denied the Ex. WW1/2 (colly) and the claimant has failed to prove on record that the certificate Ex. WW1/1 was issued by the management or that it bears signature of Director of the management. The ld. AR for the claimant has submitted that in the copies of the ledgers, the annual income of the claimant for the year 2010, 2011 and 2012 are mentioned therein, but, these documents are not signed by any of the official of the management. The ld. AR for the claimant has submitted that in view of non-production of the ledgers by the management an adverse inference may be drawn, but, this court is of the considered opinion that since the claimant has failed to bring on record any cogent evidence to show that he had served in the management since November, 1995 to 05.06.2013 as the claimant has made such averments in his statement of claim or that his services were terminated by the management on 06.06.2013 and the claimant was under obligation to prove these facts, which were asserted by him in his statement of claim.
49. As their lordship of Supreme Court in case Manager, R.B.I. Bangalore vs S.Mani & ors in Appeal (Civil) no. 6306-6316 of 2003 had relied upon Catina of judgments, wherein, following observations were made:
In case Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195 it was held:
"15 A Court of Law even in a case where provisions of the Indian 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 his contentions. The matter, however, LIR No. 4867/16 Page No.36 /39 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 in 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."
50. In case Indira Nehru Gandhi Vs. Raj Narain [1975 Supp SCC 1] this Court observed:
"19. Furthermore a party in order to get benefit of the provisions contained in Section 114(f) of the Indian Evidence Act must place some evidence in support of his case. Here the Respondent failed to do so."
51. In M.P. Electricity Board Vs. Hariram [(2004) 8 SCC 246], this Court observed:
"11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously."
As noticed hereinbefore, in this case also the Respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference.
52. So, in the light of the abovesaid judgement, in view of non production of the ledgers record by the management, no adverse inference can be drawn, as the claimant has failed to prove the assertions made by him in his statement of claim.
53. Since, the claimant has relied upon the certificate Ex WW1/1, allegedly issued by the Director of the management and LIR No. 4867/16 Page No.37 /39 photocopies of the ledgers Ex. WW1/2 (colly) and in the above discussed circumstances, the same are not sufficient to prove that the claimant had served in the management as an Accountant since November, 1995 to 05.06.2013 or for a period of 240 days prior to the alleged termination of his services by the management on dated 06.06.2013.
54. Since, the claimant has failed to bring on record any cogent evidence to prove that he has served in the management since November, 1995 to 05.06.2013 or that he worked in the management for a period of 240 days prior to the alleged termination of his services by the management on dated 06.06.2013. The claimant has filed the self serving affidavit Ex. WW-1/A, but, as the testimony of the claimant is self contradictory, so, it does not inspire any confidence. So, in the absence of such proof, the services of the claimant could not be terminated by the management. This Court is inclined to hold that the claimant has failed to prove on record that he was regular employee of the management since November 1995 to 05.06.2013. He has also failed to prove on record that his services were illegally and unjustifiably terminated by the management on dated 06.06.2013, therefore, issue no. 1 and 2 are decided against the claimant.
55. Since the claimant has failed to prove that he worked in the management for the period as claimed by him or he worked in the management even for 240 days prior to the alleged LIR No. 4867/16 Page No.38 /39 termination of his services or that his services have been illegally and unjustifiably terminated by the management, so, he is not entitled to get any relief. Therefore, statement of claim filed by the claimant is hereby dismissed, by devoid of merits. The reference is answered accordingly.
56. The attested copy of the award be sent to the Office of 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 after compliance of necessary legal formalities. PAWAN Digitally signed by PAWAN KUMAR KUMAR MATTO Date: 2020.01.21 MATTO 16:58:46 +0530 Announced in the Open Court (PAWAN KUMAR MATTO) on 21st January, 2020 Presiding Officer Labour Court -IX, Rouse Avenue Court, New Delhi.
LIR No. 4867/16 Page No.39 /39