Delhi District Court
Sh. Shailesh Pathak vs . M/S. Central Footwear Company Id No. ... on 6 June, 2013
Sh. Shailesh Pathak Vs. M/s. Central Footwear Company ID NO. 478/10
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0330272010
F - 3.(564)/Ref./WD/LAB/640 dated
Reference No.
04.11.2010.
Type of Case Reference Case
Date of Institution 23.11.2010
Evidence concluded on 11.04.2013
Final Arguments Heard on 30.05.2013
Date of Award 06.06.2013
WORKMAN MANAGEMENT
Vs.
Sh. Shailesh Pathak S/o Sh. Rajpal M/s. Central Footwear Company,
Pathak C/o Engineering & General H - 10, Udyog Nagar, Rohtak
Karamchari Lal Jhanda Union Road, Delhi - 110041.
(Regd.), L - 1117, Mangolpuri,
New Delhi - 110083
PRESENT:
➔ None for the parties.
AWARD :-
1. The appropriate Government sent a reference no. F - 3.(564)/Ref./WD/LAB/640
dated 04.11.2010. to this court in relation to the illegal termination of the services
of the claimant /workman Sh. Shailesh Pathak by the Management M/s.
Central Footwear Company. The reference specifically pointed out as
follows :
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Sh. Shailesh Pathak Vs. M/s. Central Footwear Company ID NO. 478/10
"Whether Sh. Shailesh |Pathak S/o Sh. Rajpal
Pathak is absenting from his duties or his services
were terminated illegally and / or unjustifiably by
the Management, and if so, to what relief was he
entitled and what directions were necessary in
that respect?"
2. As per claim, the workman Sh. Shailesh Pathak was working with the Management
M/s. Central Footwear Company since 10.04.2000 as an 'Electrician'. He pleaded
his last drawn salary as Rs.4377/ per month. He stated that he was an active
member of a labour union. Aggrieved by his labour union's activities the
Management terminated his services on 02.03.2010 without resorting to the legal
provisions. He pleaded his unemployment and he also pleaded in his claim that in
the year 2001 the Management got one ESIC card issued in his favour in April,
2006 which was maintained till the year 2008.
3. The Management M/s. Central Footwear Company filed a reply / written statement
to the claim of the claimant. In the written statement it was pleaded that the claim
of the claimant was not maintainable and further that the workman started absenting
from his duties 02.03.2010 onwards. Replying on merits the Management
specifically denied the services from the year 2000. An alternative factual plea
was taken by the Management that this workman worked there for a few months
in the year 2005 and left his services after settling his full and final account. He
again joined the Management on 02.04.2006 and worked there till 18.02.2007.
This time also he got his full and final settlement amount. As per the Management
third time this workman joined its services on 01.02.2010 and worked there till
01.03.2010. No specific plea was taken regarding the last drawn wages. The
Management also pleaded its closure. The claim of the claimant was denied by the
Management on merits.
4. In this background of pleadings of the parties, this court vide its orders dated
07.12.2011 framed the following issues :
1. Whether the workman had unauthorizedly
remained absent from his duties, if yes, from what
date and period? OPM.
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Sh. Shailesh Pathak Vs. M/s. Central Footwear Company ID NO. 478/10
2. Whether the Management establishment was
closed, if yes on what date and with what effect?
OPM.
3. Whether the services of the workman were
terminated illegally and / or unjustifiably by the
Management? OPW.
4. Relief, if any.
5. Thereafter both the parties were asked to lead their respective evidence.
6. The claimant / workman Shailesh Pathak examined him as WW1 through his
evidence affidavit Ex. WW1/A and reiterated his claim in material aspects. He
relied upon 12 documents. Out of these 12 documents Ex. WW1/1 to Ex. WW1/3
were objected to by the ld. Counsel for the Management as these were photocopies.
Ex. WW1/1 are jointly two PF slips. First one is for the year 2001 - 2002 and the
second one is for the year 2002 - 2003. Ex. WW1/2 is a photocopy of ESI
subscription. Ex. WW1/3 is ESIC card of the workman. Ex. WW1/4 is the demand
notice dated 05.03.2010. Ex. WW1/5, Ex. WW1/6 and Ex. WW1/7 are the postal
receipts and acknowledgment card. Ex. WW1/8 is a claim filed before the
Conciliation Officer. Ex. WW1/9 is a carbon copy of a letter dated 17.05.2010
written by the Management to the Dy. Labour Commissioner. Ex. WW1/10 is the
photocopy of the rejoinder. Ex. WW1/11 is the reference order and Ex. WW1/12 is
the summons issued from this court.
7. He was cross - examined by the ld. counsel for the Management. During his cross -
examination it was revealed that this workman was a matriculate but did not know
English. Regarding Ex. WW1/9 the ld. counsel for the Management asked a
question that this letter written by the Management to the Dy. Labour
Commissioner did not show his continuous working for the year 2010.
He admitted that the Management had never given him any termination
letter. He stated that he did not know about the closure of the
Management's factory. He denied a suggestion regarding his
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earning of Rs.10,000/ to Rs.15,000/ per month.
8. After this the Management examined one Sh. Satish Kumar Manocha the proprietor
of the Management. He stated that the workman did never worked for 240 days in
continuation. He again repeated the Management's theory of three working intervals
instead of a continuous service period. He relied upon 4 documents. Ex. MW1/1
is a set of photostat pages of attendance register. Ex. MW1/2 is a photocopy
purportedly of a lease deed bearing the address of the Management's
establishment. Ex. MW1/2 shows the lease of the first floor of that premises. The
Management has also placed on record Ex. MW1/3 which shows a lease of the
ground floor of the same premises. Ex. MW1/4 is a photocopy of Form DAVT 16
for a period from 01.04.2011 to 30.06.2011.
9. The Hon'ble Supreme Court in case Workmen of Nilgiri Coop. Marketing Society
Limited Vs. State of Tamil Nadu & Ors. 2004 LLR 351 has observed as follows :
49. "It is a 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."
50. "In N.C. John Vs. Secretary Thodupuzha Talul Shopand
Commercial Establishment Workers' Union and Others [1973
Lab. I.C. 398], the Kerala High Court held :
"The burden of proof being on the workmen to establish
the employer - employee relationship an adverse
inference cannot be drawn against the employer that if
he were to produce books of accounts they would have
proved employer - employee relationship."
51. In Swapan Dos Gupta & Others vs. The First Labour Court of
West Bengal and Others, [1975 Lab. IC 202] it has been held that
"Where a person asserts that he was a workman of the
Company, it is for him to prove the fact. It is not for the
Company to prove that he was not an employee of the
Company, but of some other person."
10. The law was also elaborated by the Hon'ble Delhi High Court in
UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi)
514 and in Automobile Association of Upper India Limited Vs. PO
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Labour Court & Anr. 2006 LLR 851.
11. Limited Vs. PO Labour Court & Anr.
In Automobile Association of Upper India
(SUPRA) it was observed by the Hon'ble Delhi High Court that,
'it is well settled that the primary burden of proof to establish
a plea rests on a person so claiming in this behalf reference
can be appropriately made to the judicial pronouncement in
III (2001) SLT 561; (2001) 9 SCC 713 (715), State of
Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar, III
(2004) SLT 180; 2004 LLR 351 (para 49), Nilgiri Coop.
Marketing Society Ltd. Vs. State of Tamil Nadu, 2001 LLR
148, Dhyan Singh Vs. Raman Lal, 1996 Lab. I.C.202,
Swapan Vs. First Labour Court,West Bengal, and 1973 Lab.
I.C. 398 N.C. John Vs. TTS & CE Workers Union. Thus
burden lies on a person claiming the establishment to be an
industry to place positive facts before the Court in this behalf.
For this reason, the primary burden to establish the
relationship of employment also lies on the workman who is
claiming the same.'
12. In UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514
(SUPRA), it was held by the Hon'ble High Court,
'Now I shall deal with the second issue relating to burden of
proof : Principles regarding burden of proof are stipulated
in Chapter - VII of Indian Evidence Act, 1872 (Section 101
to 114A). General Principal, which is laid down in these
sections particularly Section 101 and 102 is 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
in order to establish the existence or non - existence of a
fact contended to by a party. Burden of proving 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. Dealing with aforesaid
Principles contained in Indian Evidence Act, Mr. O.P.
Malhotra in his book entitled "The Law of Industrial
Disputes", Fifth Edition (Volume 1) Page - 842 states as
under :
'The expression 'burden of proof' has two distinct
and often blurred meanings viz. (i) the burden of
proof as a matter of law and pleadings. This,
burden, as it has been called, for establishing a
case, whether by preponderance of evidence or
beyond a reasonable doubt, and (ii) the burden of
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proof in the sense of introducing evidence. In the
Indian Evidence Act, Sec. 101 uses the expression in
the former sense while Sec. 102 uses it in the latter
sense. The former type of onus viz. The burden of
proof of the facts in issue is usually known as the
general burden of proof or the burden of proof on
pleadings. This type of burden of proof has been
called by jurists, the 'legal burden', the legal or
persuasive burden is the burden borne by the party
who will loose the issue unless he satisfies the
Tribunal of the facts to the appropriate degree of
conviction and it is aptly termed the "Risk of Non
Persuasion" by Vigmore. The phrase 'legal burden'
was coined by Lord Denning while the phrase
'persuasive burden' was used by Dr. Glanville
Williams. Other jurists have referred to it as the
"burden of proof on the pleadings". This burden is
entitled to be called the legal burden because its
incident is determined by the substantive law, and
the adjective persuasive gives some indication of its
real nature. The pleadings do not always indicate
which party bears the burden, and the answer to a
somewhat controversial question is assumed if it is
said to be "fixed", for the epithet is designed to
emphasis the fact that this burden does not shift in
the course of a trial a matter of words about which
there is room for two views in the case of issues to
which certain rebuttable presumptions of law are
applicable. The latter type of onus is called the
professional or the tactical burden. The burden of
proof in the first sense is fixed at the beginning of
the trial by the state of pleadings and it is settled as
a question of law. Remaining unchanged,
throughout the trial exactly where the pleadings
place it and never shifts in any circumstances
whatsoever. The burden of proof in the second
sense, however, constantly shifts as one scale of
evidence or the other preponderates".
The point of consideration is as to whether these rules of evidence
would be applicable even in adjudication pleadings under the
Industrial Law. This question was decided by Supreme Court in the
case of Shankar Chakravarti Vs. Britannia Biscuit Co.
Ltd. (1979) II LLJ 194 wherein Supreme Court observed
that through the Adjudicatory Authorities under the Act
have all the trappings of a court, they are not hide bound by
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the statutory provisions of the Evidence Act Section-11 (3) of the
Industrial Disputes Act confers on them powers of a Civil Court
under the Code of Civil Procedure only in respect of matters
specified therein. Such Authorities are created for adjudication of
Industrial Disputes between the parties arrayed before them. Their
function being of a quasi - judicial nature, they have to adjudicate
such disputes on the basis of pleadings of the parties and the
evidence adduced before them in accordance with Rules of Natural
Justice. Therefore, any party appearing before anyone of such
Authorities must make a claim or demur the claim of the other side.
When there is a burden upon the party to establish a fact so as to
invite a decision in its favour, it has to lead the evidence. The
obligation to lead evidence to establish an averment made by a party
is on the party making the averment. The test would be who would
fall if no evidence is led. Such party, therefore, must seek
opportunity to lead evidence.
13. In the light of this law this court is of the view that the requirement of evidence by
the workman and the Management is not simultaneous. It is a primary duty of the
claimant to show that at least a prima facie case exists in his favour and thereafter
if he succeeds in doing that the Management's evidence would be taken into
consideration either in rebuttal or in the establishment of an alternative factual
circumstances put forward by it in defence.It is clear that burden of proving facts
keeps shifting from one party to the other.
ISSUE NO. 2 :
14. In this issue this court has to adjudicate upon the factum if the Management
establishment was closed, if yes on what date and with what effect.
15. The point of closure under the provisions of the Industrial Disputes Act
is always a mixed point of law and facts. There are specific
provisions of law given in Section 25 FFA and 25 FFF of the Industrial
Disputes Act r/w Rules 76 B and 76 C of the Industrial Disputes Rules.
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In order to discharge its onus showing the closure of its establishment the
Management had to show that it had taken steps as mandated by the
aforementioned provisions of law. But it is neither a pleading of the Management
nor was there any evidence tendered before the court that any such steps had ever
been taken.
16. The Management placed some photocopies of a lease deed bearing the address of
the respondent / Management purportedly by these photocopies of the lease deeds
the Management intended to prove that its establishment was not in its physical possession.
17. The evidence led by the Management is highly deficient in nature. It has nowhere filed a complete detail as to how many floors / compartments / areas in the premises in question were there and out of these floors / compartments / areas which two ones were leased out. Its impact on the working of the Management was nowhere factually assessed in this judicial process. Therefore, this evidence instead of clarifying the position has created more shrouding clouds over the premises in question. Nothing can be said with certainty that in whose possession and to what extent the premises was at the crucial point of time.
18. Secondly the rented out of a premises is not a facator to be considered by the court while appreciating the evidence in support of the Management's claim of closure. The evidence was to be tendered regarding those steps which were mandated by the legal provisions of the Industrial Disputes Act as aforesaid.
19. This court is of the view that the Management has squarely failed to prove any closure of its factory within the meaning of provisions of the Industrial Disputes Act.
ISSUE NO. 1 :
20. In this issue this court has to adjudicate upon the factum if the workman had unauthorizedly remained absent from his duties, if yes, from what date and for what period.
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21. In this case the Management pleaded an alternative factual situation. It pleaded that the workman had not worked with it continuously for several years rather he worked there in different intervals extending from the year 2000 to 2010. It was further a plea of the Management that he worked there with the Management such that he could never complete the Minimum span of 240 days to seek an assistance of legal provisions in the Industrial Disputes Act. Some photocopies were placed on record as Ex. MW1/1 as the attendance register of this workman. From where photocopies were taken; who prepared the originals of these photocopies; why those originals are not before this court and who compared the accuracy of these photocopies to these originals etc. were the questions which were never addressed to by the Management. These five pages of photostat copies are highly deficient, irrelevant and of obscure nature and hence this court is not in a legal position to appreciate the intention with which these were filed on record. This court does not prefer these documents for being considered for any purpose in this adjudication.
22. There is no other piece of evidence which this Management had placed on record in support of its alternative factual pleas. It has failed to show that the workman had worked there in three time pockets. It could not show that he resigned from service for three times. It could not show any amount of compensation or settlement amount to have been paid to the workman on each of such completion of service. No aspect of these three intermittent employments was brought on record. Hence this theory of the three employments is altogether discarded by this court.
23. As per the Management's plea the workman had abandoned his services and in that direction he first of all stopped attending his duties in the Management's office. As per the law laid down by the Hon'ble High Court in Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour) and Ors. MANU/DE/0541/2005 and by the Hon'ble Supreme Court in Punjab and Sind Bank Vs. Sakattar Singh (2001) 1 SCC 214 Management was obliged to hold an enquiry in case a workman stopped attending his duties. What to talk of an enquiry the Management had not sent even a single letter to this workman asking him to come and join his services. Therefore, there is no circumstance available on record in this judicial file which could even remotely AWARD Page 9 of 13 Sh. Shailesh Pathak Vs. M/s. Central Footwear Company ID NO. 478/10 indicate that the workman himself stopped attending his duties.
24. Consequently the Management is held to have been failed to "Prove" this issue.
This issue is decided accordingly.
ISSUE NO. 3 :
25. In this issue this court has to adjudicate upon the factum if the services of the workman were terminated illegally and / or unjustifiably by the Management.
26. The workman in his claim had taken specific pleas regarding his date of appointment, last drawn wages, date of termination and the mode of termination of his services as follows : ➔ regarding the date of appointment the Management forwarded a three time employment theory which it could never prove;
➔ regarding the last drawn wages the Management failed to have denied it and hence it appears to have been admitted by the conduct of the Management;
➔ there is no dispute regarding the date of last working date; and ➔ only the dispute between the parties is regarding the mode of termination. For workman it was a retrenchment and for the Management it was an abandonment of service.
27. As per the observations of this court the Management had failed to prove the abandonment by the workman. Hence the workman's termination from the services by the action of Management stands proved. This workman has placed on record his ESI card in which the AWARD Page 10 of 13 Sh. Shailesh Pathak Vs. M/s. Central Footwear Company ID NO. 478/10 entries were made on 15.10.2001. He has also placed on record PF receipts in which the subscription was deposited for the year 2001 - 2002 and 2002 - 2003. All these documents clearly show that the claim of the workman is bonafide and is well supported by the documents of employment. This workman was terminated by the Management by a positive action and this is well covered within the meaning of 'retrenchment' as defined in Section 2 (oo) of the Industrial Disputes Act which is as follows : Section 2 (oo) Industrial Disputes Act defines the retrenchment as follows : "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non -
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill - health.
28. The Hon'ble Supreme Court in case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) (2010) 5 Supreme Court Cases 497 has held that : "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and AWARD Page 11 of 13 Sh. Shailesh Pathak Vs. M/s. Central Footwear Company ID NO. 478/10 compensation in terms of Section 25 F (a) and (b) has the effect of rendering the action of employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
29. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial Disputes Act was imperative. The contravention thereof would render the retrenchment. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act but of Rule 77 the Industrial Disputes Rules also.
30. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the workman in the present matter was wrong. The impugned retrenchment of the workman by the Management was legally defective. RELIEF :
31. This court is of the view that compensation amount should be determined after having regards to the date of appointment, the date of termination, the total length of employment of the workman, his last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. inflation and the devaluation of money) and the circumstances in which he was retrenched.
32. In view of this court a sum of Rs. 1,00,000/ (Rupees One Lakh only) be given to the workman to make the loss good which he had suffered in the hands of the Management + Rs.10,000/ (Rupees Ten Thousand only) as litigation expenses.
33. Reference is answered accordingly.
34. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
35. The original documents be returned against acknowledgment back to AWARD Page 12 of 13 Sh. Shailesh Pathak Vs. M/s. Central Footwear Company ID NO. 478/10 the party which has filed them and further subject to the filing of the certified copies of the same.
36. File be consigned to the record room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 06.06.2013.
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