Delhi District Court
Sh. Chandra Bhan Jaiswal vs M/S. Gagandeep Bajaj on 19 November, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LC No.1051/16 (Old No. DID 17/15).
CNR NO. DLKA010028592015
In the matter of :
Sh. Chandra Bhan Jaiswal
S/o Sanwali Prasad Jaiswal,
R/o H. No. 39, Kucha Belamul, Naya Bans,
Chandni Chowk, Delhi110006.
Through Sanjay Sharma (Adv.),
Ch. No. F507, 5th Floor, Karkardooma Court,
Shahdara, Delhi110032.
..............Workman
Versus
M/s. Gagandeep Bajaj,
Shop No. H14, Shardanand Market,
G.B. Road, Delhi110006.
.............Management
DATE OF INSTITUTION : 17.04.2015.
DATE ON WHICH AWARD RESERVED : 15.11.2016.
DATE ON WHICH AWARD PASSED : 19.11.2016.
A W A R D :
1. This is a direct industrial dispute filed by the workman
under the Industrial Disputes Act, 1947 (hereinafter referred as "the
Act") for reinstatement with continuity of service and full back
wages.
ID No.1051/16. 1/10
2. Claimant's case is that he had started working with the
management on the post of General Worker w.e.f. 02.01.01 at the
last drawn salary of Rs.9,500/ per month, but the management was
not providing him legal facilities like appointment letter, ESI, PF,
attendance card, overtime wages, minimum wages, casual leaves,
yearly increment, festival offs and bonus. Earlier, the management
was doing the business in the name and style of M/s. Shyam
Sunder Bajaj, but after some time, it changed its name to M/s.
Gagandeep Bajaj. When he was in the employment of the
management, it used to obtain his signatures on blank papers and
vouchers which can be used against him by it. When he demanded
legal facilities, the management started delaying payment of earned
wages and ultimately held those wages from 01.05.14 to 25.08.14
and terminated his services on 25.08.14 in violation to the
provisions of Section 25F of the Act against which he sent a
demand notice dated 26.08.14 which fell on deaf ears. Against
obtaining signatures on blank papers and termination of service, he
sent complaints dated 26.08.14 to the Labour Department and SHO
PS Kamla Nagar through union by post. He is jobless since
termination.
3. Written statement is to the effect that management is
not an industry because it is a Kirana Shop which is being run by
ID No.1051/16. 2/10
its owner without any employee. The claimant was never
appointed by the management as regular and permanent employee
and hence relationship of employer and employee is missing. He
had not worked with the management for 240 days in the preceding
year of termination.
4. Following issue were framed on 10.11.2015 :
1. Whether there was relationship of employer and
employee between management and claimant? OPM
2. Whether claimant had worked with the management
for 240 days in the preceding years? OPW
3. Whether termination of services of the claimant by
management on 25.08.14 is illegal and / or
unjustifiable? OPW.
4. Relief.
5. The first date for WE was 14.03.16. On that day, no
WW was present or summoned. Affidavit in evidence of any WW
was not filed. Advance copy of claimant's affidavit in evidence
was filed. ARW had taken adjournment on the ground that
claimant was not present. The matter was adjourned to 21.07.16.
Same was the position on that day and the case was adjourned to
15.11.16 for concluding WE with last and final opportunity. Same
was the position on that day and it seemed to the Court that
claimant had lost interest in the case and so WE was closed.
ID No.1051/16. 3/10
6. The management also did not examine any witness.
Issue Nos. 1 & 2.
7. Both these issues are interconnected and hence are
being taken up together.
It is the settled law of the land that it is the workman
who is required to establish that he was employed with the
management and that he had worked with it for 240 days in the
preceding year of his termination. In Range Forest Officer Vs.
S.T. Hadimani, 2002I, LLJ, 1053, it was 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 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 ID No.1051/16. 4/10 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."
It was held by the Apex Court in R.M. Yallatti Vs. Assistant Executive Engineer, 2006 (108), FLR 213 SCC as under: "Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Dispute Act. However, applying general principles and on reading the afore stated 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 workmen stepping the witness box. This burden is discharged upon the workmen adducing cogent evidence, both oral and documentary. In case 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 workmen (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wages register, the attendance register etc. ID No.1051/16. 5/10 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 statement made by the claimant / workmen will not suffice in the matter of discharge of the burden placed by law on the workmen to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere nonproduction of muster rolls per se without any plea of suppression by the claimant workmen 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 fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case."
Following observations of the Hon'ble Apex Court in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, AIR 2006 SC 110 are relevant: "10. 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 calender months preceding the date of termination. What we find is that apart from the oral evidence the workman has not ID No.1051/16. 6/10 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 month 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 service for the purpose of Section 25F of the Industrial Dispute Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the 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 Act before the service was terminated by the employer. As regards ID No.1051/16. 7/10 noncompliance of Section 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 list and his so called seniority no relief could be given to him for non compliance of provisions of the Act. 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." relied upon State of Haryana and Others Vs. Piara Singh & Ors. (1992) 4 SCC 118 wherein the Supreme Court had observed that the normal rule is regular recruitment through the prescribed agency, but exigencies of administration may sometimes call for an ad hoc and temporary appointment to be made. In such a situation, efforts should always be to replace such an ad hoc / temporary employee by regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection / ID No.1051/16. 8/10 appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly appointed candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc / temporary employees."
8. In the case in hand, the claimant did not appear in the witness box to substantiate the contents of statement of claim that he had joined the management on 02.01.2001 on the post of General Worker at the last drawn salary of Rs.9,500/ per month and that his service was terminated illegally on 25.08.14 in violation to Section 25F of the Act. He did not examine any other witness. He did not place on record any document to prove that he was employed by the management and had worked with it for 240 days. It is a case of no evidence from both sides and due to that reason, both issues are decided against claimant and in favour of the management.
Issue No. 39. It has already been observed in issue Nos. 1 & 2 that claimant has failed to establish his relationship of employee with the management and that he had worked with the management for 240 days before termination of his service. Due to that reason, there arises no question of termination of service. So, this issue is ID No.1051/16. 9/10 decided in favour of the management and against the claimant.
Issue No. 4.
10. Consequent to decision on issue Nos. 1, 2 & 3, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs.
11. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 19.11.2016. POLCXVII/KKD, DELHI.
ID No.1051/16. 10/10