Delhi District Court
Sh. Bhagwat Yadav vs M/S India Navigation Company on 21 April, 2007
1
IN THE COURT OF SH. S.K. SARVARIA,
PRESIDING OFFICER LABOUR COURT, No. XII, KARKARDOOMA,
DELHI
ID No. 97/2005
BETWEEN
Sh. Bhagwat Yadav
@ Bhagwan Yadav,
S/o Ganesh Yadav,
C/o Delhi Pradesh Kamgar Union,
Ekta Sangh, RZ -F-53, Sitapuri,
Part 2, New Delhi. ...........Workman.
AND
M/s India Navigation Company,
A-103, Phase 2, Mayapuri Audyogik Kshetra,
New Delhi. ............Management.
ID NO. 97/2005
2
AWARD
1. The Industrial Dispute between the management of
M/s India Navigation Company, A-103, Phase 2, Mayapuri Audyogik
Kshetra, New Delhi and its workman Sh. Bhagwat Yadav @ Bhagwan
Yadav, S/o Ganesh Yadav, C/o Delhi Pradesh Kamgar Union, Ekta Sangh,
RZ-F.53. Sitapuri, Part 2, New Delh was referred by Secretary (Labour),
Government of the National Capitall Territory of Delhi for adjudication in
exercise of powers conferred by section 10 (1) (c), 10 (1) (d) and 12 (5) of
the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24
(2263)/2004 - Lab./ 1513 - 17, dated 3rd February, 2005 with the following
terms of reference :
"Whether the services of Sh. Bhagwat Yadav S/o Sh.
Ganesh Yadav,have been terminated by the management
illegally and/or unjustifiably by the management and if so,
to what sum of money as monetary relief alongwith
consequential benefits in terms of existing laws/Govt.
Notifications and to what other relief is he entitled and
what directions are necessary in this respect?"
2. The notice of the reference was issued to the workman who
ID NO. 97/2005
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filed statement of claim alleging in brief that he was working with the
management as karigar since 2/1/1990 on the last drawn wages of Rs
3260/-- per month. There was no cause of complaint against the
workman during the service period of the workman and his work and
conduct was satisfactory.
3. The management without giving any letter transferred the
workman to another establishment M./S. Nipa International at Gurgaon
and about more than two years before he was recalled at Mayapuri to
work in the establishment of the management but the name of the
workman was recorded in the register as Shri Bhagwan Yadav instead of
Bhagwat Yadav. When the workman protested the management stated
that the company is the same and management is the same and the
workers are the same but the name of the workman was recorded in
correct by mistake which shall be corrected. On 8/6/2004 the workman
was called in the office and his signatures were obtained forcibly on
blank papers, vouchers, letter pads of the establishment etc etc. The
workman was made to sit up to 8 p.m. and then by withholding his
wages for May 2004, without giving any intimation or without making any
ID NO. 97/2005
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payment his services were terminated.
4. The workman through his union made a complaint to the Labour
Department but before the Labour inspector the management did not
reinstate him to the job. The action of the management amounts to
retrenchment as defined in Section 2 (00) of the Act. The management
did not comply with the provisions of Section 25 F of the Act.
5. The workman sent a demand notice dated 23/6/2004 by
registered AD but the management neither replied nor complied with it.
Compelled by these reasons the workman raised industrial dispute
before conciliation officer but due to noncooperation of the management
the conciliation proceedings failed. Hence, the reference.
6. The workman is unemployed from the date of termination of his
services and has no source of income.
7. The workman has prayed for reinstatement to the job with
continuity of service and full back wages by way of award of this tribunal.
ID NO. 97/2005
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8. The management contested the claim and filed written
statement by taking the preliminary objection that the claim is liable to be
rejected as workman has not completed 240 days of service in the
employment of the management. Another preliminary objection taken is
that filing of demand notice before learned the Conciliation Officer
without first raising a demand and/or submitting a demand notice on the
management is patently illegal based upon case law including that of
Honourable Supreme Court of India in the case of Sindhu Resettlement.
9. On merits the management denied that the workman joined the
management on 23/1/1990. The management submitted that the
workman joined the management on 19/4/2004 as semi -- skilled worker
at the rate of Rs 2949.90 per month. During the period he worked with
the management he had given ample opportunities to the management
to complain against his work and conduct. The management denied that
it transferred the services of the workman to M./S. Nipa International
Private Ltd as prior to 19/4/2004 the workman was not in the
employment of the management. The management also denied that it
ID NO. 97/2005
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ever recalled the workman from M./S. Nipa International. It also
submitted that the the name of workman was recorded as informed by
him and he was issued appointment letter accordingly.
10. The management has alleged that the workman absented from
duty from 8/6/2004. Instead of collecting his full and final dues,
submitted a frivolous and mischievous statement of claim before the
learned conciliation officer. The management reiterated that the
workman has not completed 240 days in the employment of the
management. It submitted that due to this reason there was no question
to comply with the provisions of Section 25 F of the Act. The
management has denied the other facts stated in the statement of claim
and has prayed for answering the industrial dispute in favour of the
management.
11. The controversies between the parties in the pleadings resulted
into framing of the following issues by this tribunal on 17/3/2006: --
ISSUES
ID NO. 97/2005
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1. Whether the workman has completed 240 days of
employment with the management? OPW.
2. To what relief is the workman entitled from the
management?
12. In support of his case the workman WW1 has filed his affidavit
in evidence. He was cross-examined before the learned local
commissioner appointed by this tribunal after which the workman closed
his evidence. The management has also examined only one witness
namely M. W.1 Shri Shailender Kumar and has filed his affidavit in
evidence. He was also cross-examined before the learned local
commissioner after which the management also closed the evidence.
13. I have heard the learned authorised representatives of the
parties and have gone through the written arguments filed on behalf of
the management on the record of the case, carefully. My findings on the
issues frame are as under: -
14. ISSUE NO.1
ID NO. 97/2005
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The question is on whom the burden to prove the fact that the
workman has completed 240 days of service receding date of alleged
termination, lies? The answer lies in the following authorities relied upon
by learned authorised representative of the management: --
15. In Mohan Lal v. Management of M/s. Bharat Electronics
Ltd., 1981 (42) FLR 389 (SC), it is said by the Apex Court that before a
workman can claim retrenchment not being in consonance of section
25F of the Industrial Disputes Act, he has to show that he has been in
continuous service of not less than one year with the employer who had
retrenched him from service.
16. In Ranage Forest Officer v. S. T. Hadimani, 2002 (3) SCC 25
(26) para 3: 2002 (93) FLR 179 (SC), the Apex Court held that "In our
opinion the Tribunal was not right in placing the onus on the
management without first determining on the basis of cogent evidence
that the respondent had worked for more than 240 days in the year
preceding his termination. It was the case of the claimant that he had so ID NO. 97/2005 9 worked but this claim was denied by the appellant. 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."
17. Thereafter, in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and another, 2004 (103) FLR 192 (SC); Municipal Corporation, Faridabad v. Siri Niwas, 2004 (103) FLR 187 (SC): 2004 (23) AIC 690 (SC) and UP Electricity Board v. Hariram, 2004 (103) FLR 420 (SC), the Apex Court has reiterated the principle that the 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 ID NO. 97/2005 10 examining himself to prove the factum of his being in employment of the employer.
18. Recently in Surendranagar District Panchayat and another vs Jethabhai Pitamberbhai 2006 LLR SC 175, the Supreme Court has quoted and relied upon the above authorities and reiterated the legal position that the burden to prove the fact that the workman had completed 240 days of service prior to his retrenchment lies on the workman.
19. Therefore, it is clear that the burden to prove one year's continuous service or 240 days or more of service preceding termination lies on the workman. The workman has not lead any convincing evidence like appointment letter, wage slip, attendance card, PF Slip, ESI card to show that he has worked for 240 days or more prior to alleged termination of his services by the management. The affidavit in evidence of workman is not sufficient to prove the fact in the light of Range Forest Officer's case (supra).
ID NO. 97/2005 11
20. The workman in the pleadings and evidence has stated that he was appointed by the management on 2/1/1990 as karigar . He has also admitted in the cross-examination that he has raised an industrial disputes against M./S. Nipa International Private Ltd Gurgaon, Haryana. The workman himself has proved the demand noticed issued by him to the said management at Gurgaon which is Ex-WW1/10 and shows that in this demand notice the workman has stated that he was appointed by the management of M./S. Nipa International Private Ltd on 2/1/1990 as a press operator. It is not disputed that the establishment at Gurgaon, M./S. Nipa International Private Ltd is run by the father while the factory at Delhi by his son. There is no evidence on record to establish the functional and managerial integrity between these two establishments run at two different places. Therefore, the statement of the workman in the demand noticed Ex-WW1/10 that he was working with the M./S. Nipa International Private Ltd since 2/1/1990 falsifies his claim that he was working with the present management since 2/1/1990 as karigar. ID NO. 97/2005 12
21. The management has relied upon the application dated 19/4/2004 of the workman for appointment with the management copy which is Ex-WW1/M.1 and the appointment letter of the workman Ex- WW1//M.2 dated 30/5/2004. Although the workman has denied the signatures of these two documents but this denial loses significance in the light of the fact that in the cross-examination the questions were asked to the M. W.1 which leads to the inference that the workman has admitted his signature on the documents. In answer to these questions M. W.1 has stated that he could not tell whether at the bottom of Ex- WW1/M.1 workman has noted the date. He denied the suggestion that Ex-WW1/M.1 is not filled by the workman himself. He also denied the suggestion that Ex-WW1/M.1 is filled up afterwards. Therefore the tenor of answers of M. W.1 in the cross-examination suggests that the questions were asked from the M. W.1 assuming that the workman has put his signature on these two documents but the documents are not filled in written by the workman. Therefore, in my view these two documents can be relied upon to ascertain the length of service of the workman.
ID NO. 97/2005 13
22. There is another reason which emerges from the record of the case which goes in favour of the management. The fact that the establishment at Gurgaon M/s. Nipa International Private Ltd is run by the father while the factory of the management is run and managed by his son. It is also not disputed that the real name of the workman is Shri Bhagwat Yadav while in the record of the present management it was recorded as Shri Bhagwan Yadav. The case of the workman that his name was recorded wrongly by the management does not stand to reason. Rather the fact that the workman admittedly raised industrial dispute against M./S. Nipa International Private Ltd being run at Gurgaon by the father in question at Gurgaon led the workman to give his wrong name as Shri Bhagwan Yadav to the management so that his identity as a person who has raised industrial disputes with the establishment run by the father of the person running the factory of the management should not come to fore as it is a well-known fact that the managements do not have liking for the employees who involve them in the litigation. This fact also emerges as a logical inference from the evidence on record and admitted facts and lends credence to the above two ID NO. 97/2005 14 documents Ex-WW1/M.1 and M.2, referred before. These two documents certainly show that the workman has not worked with the management for 240 days or more preceding the date of alleged termination of his services by the management.
23. On behalf of the workman the argument is raised by his learned authorised representative that the management has not produced attendance register, wages register, ESI and Provident Fund record despite the fact that an application was filed by the workman for the same so adverse should be drawn against the management and it should be held that the workman has done more than 240 days of service with the management preceding date of termination of his services by it. Reliance is placed upon the authority Municipal Corporation of Delhi versus Rajinder Singh Negi, 101 (2002) Delhi Law Times: 481 wherein the management failed to bring on record the service record of the workman despite direction of the Labour Court so it was held that adverse inference can be drawn against the management. But in the present case the direction dated 7/7/2006 was issued to the ID NO. 97/2005 15 management to produce the attendance and wages register for the relevant period and also appointment letter of the workman. The management has produced appointment letter of the workman Ex- WW1/M.2 but has not produced attendance and wages record. The learned authorised representative of the management on 24/11/2006 has stated that whatever record was available with the management was produced during evidence of the management. Therefore, in the light of the submission by learned authorised representative of the management which implies that no such further record was available and also in the face of the appointment letter Ex-WW1/M.2 and the above discussion I find Municipal Corporation of Delhi's case (supra) distinguishable on fact and this authority does not help the workman in the given facts and circumstances of the case. More so, when the workman himself has failed to lead any convincing evidence regarding his length of service with the management. In R.M. Yellati Vs. Assistant Executive Engineer 2006 (108) FLR 213, following observations were made by the Apex Court:
"Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not ID NO. 97/2005 16 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 wages 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 roll 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. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of the fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case."ID NO. 97/2005 17
24. Reliance is placed upon the authority Surendranagar District Panchayat VS Dahyabhai Amarsinh 2005 IX AD (SC) 32, it was observed as follows:
"19. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any ' documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination -of his service. The Courts below have wrongly drawn an adverse inference for non-production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of servicefor the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the ID NO. 97/2005 18 uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Ad before his service was terminated by the employer; As regards non-compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority fist and his so-called seniority no relief could be given to him for non- compliance of provisions of the Ad. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."
25. In Ravindra Baburao Ambolkar VS Gujarat Tea Canteen & Anr 1996 LLR 40 Bombay, it was held:
"4. The Labour Court appreciated the evidence on record and, after carefully appraising it, has taken the view that the unsupported bare word of the Petitioner that he was in the employment of the First Respondent could not be believed. As to the receipt of the letters by the Petitioner at the address of the First Respondent, the Labour Court ID NO. 97/2005 19 held that the Petitioner, being the nephew of the First Respondent, was residing at the premises of the First Respondent, which could easily explain receipt of letters at that address. The Labour Court has correctly pointed out that, though the First Respondent's evidence was somewhat contradictory on peripheral issues, it was capable of being believed on the material issue as to existence of contractual relationship between the parties and the maintenance of the register of employment and other documents. One material circumstance highlighted before the Labour Court was that, despite his tall claim that he was working from the period 1973 to 1982 in the First Respondent's establishment, the Petitioner was unable to produce and examine even a single co-worker to affirm the said fact. In these circumstances, if the Labour Court has chosen completely to disbelieve the evidence of the Petitioner, I find it difficult to interfere in exercise of writ jurisdiction. I see nothing perverse, nothing contrary to law and nothing improper in the exercise of jurisdiction vested in it by the Labour Court."
26. In Soni Photostat Centre vs. Basudev Gupta and another 2004 LLR 546 All, the following observations were made:
"In the instant case the workman has not filed any documentary evidence nor has filed any application for summoning Rajesh Kumar or the attendance register from the employer. The petitioner could not lead any negative evidence to prove that after taking the experience certificate, respondent No.1had himself left the job to get the employment elsewhere. How attendance register of an employer can be maintained, ID NO. 97/2005 20 if he is not in the job? How could he produced Rajesh Kumar, who had left the job in the year 1988? The employer had candidly admitted that he had not maintained the attendance register then how he was expected to produce the attendance register."
27. In view of the above discussion I hold that the workman has failed to prove that he has worked for 240 days or more with the management preceding the date of alleged termination of his services. The Issue No.1is, therefore, decided in favour of the management and again the workman.
28. ISSUE NO.2 The workman has admitted that he raised industrial disputes against the management of M./S. Nipa International Private Ltd Gurgaon. The management with the written arguments has filed certified copy about full and final receipt to Rs 6000/- issued by the workman to the management on 19/3/1997 from the said management and also certified copy of the joint application of workman and the said management for settlement and also certified copy of the award dated ID NO. 97/2005 21 8/9/1997 of Industrial Tribunal -- Cum -- Labour Court Gurgaon on the basis of said settlement. The workman in the cross-examination has admitted that he has received a sum of Rs. 6000/- from the said management M./S. Nipa International Private Ltd. But the workman has not disclosed these facts in the statement of claim which shows that he has not approached the Labour Court with clean hands and has not raised a genuine disputes against the management. The said settlement also falsifies the plea of the workman that he was recalled from M./S. Nipa International Private Ltd to the Delhi factory of the management more than two years before raising the present industrial disputes.
29. In the light of my findings on Issue No.1the workman has failed to prove that he has worked with the management for 240 days or more preceding date of the alleged termination of his services by the management.
30. In the light of the above discussion and overall facts and circumstances of the case the workman is not entitled to a relief with the management in terms of reference order. The Issue No.2is also decided ID NO. 97/2005 22 in favour of the management and again the workman.
31. In the light of my findings on the above issues the workman is not entitled to a relief against the management.The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server(www.delhicourts.nic.in). The file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON THIS 21ST DAY OF APRIL, 2007.
(S.K.SARVARIA) PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.
ID NO. 97/2005 23 ID NO. 97/2005