Delhi District Court
By This Award vs Presiding Officer And on 20 January, 2023
IN THE COURT OF AJAY GOEL, PRESIDING OFFICER-06,
LABOUR COURT, ROUSE AVENUE DISTRICT COURT, D.D.U.
MARG, NEW DELHI.
LIR No. 3812/2018
Date of Institution 05.10.2018
Date of Arguments 16.01.2023
Date of Award 20.01.2023
BETWEEN THE WORKWOMAN:
Sh. Ashok Kumar Bharti, S/o Sh. Samai Bharti, aged 37 years,
Mob. No. 9873854336, R/o Jhuggi, Chandra Shekhar Azad Colony,
Battery Park, Near Ashok Tailor, Industrial Area, Wazirur, Delhi-
110052 through Sh. S. N. Shukla, General Secretary, Rastriya
Mazdoor Vahini Union (Regd. No. 3241), D-266, Gali No. 3,
Radha Kishan Mandir Marg, Swaroop Nagar, Delhi-110042.
VERSUS
THE MANAGEMENT OF:
M/s. Ramesh Trading Corporation (India), C-9, Industrial Area,
Wazirpur, Delhi-110052.
AWARD
1.By this award, I shall dispose of the reference sent by the Joint Labour Commissioner (District North West), Labour Department, Govt. of the National Capital Territory of Delhi arising between the parties named above to this court vide notification No. F.24/ID/297/18/NWD/355/18/Lab/1156-58, dated 05.09.2018 with the following terms of reference:-
"Whether the workman Sh. Ashok Kumar Bharti, S/o Sh. Samai Bharti has abandoned the job on his own after taking full and final settlement or his services have been terminated illegally and/ or unjustifiably by the management, and if so, to what relief is he entitled and what other directions are necessary in this respect?"LIR No. 3812-2018 1
2. Notice of reference was sent to the workman/his union with directions to file statement of claim. Upon service, claim was filed by workman thereby pleading that workman was working with management since 1998 as "Karigar" on the monthly salary of Rs. 8,000/- and he never gave any occasion of complaint. It is averred that legal facilities as detailed in para No. 2 of the claim were not being provided to workman and he was deprived of same and on demand of said facilities, the management gave false assurance to provide the same. Later on, when he reached for duty on 12.07.2017, the management terminated his services without any cause and prior information. It is stated that workman made a complaint dated 17.04.2017 before Labour Department, however, despite efforts of the Labour Inspector, the matter was not resolved. Thereafter, workman got issued a demand letter dated 17.04.2017 and despite service of same, the management neither took the workman back in service nor cleared his dues. It is further stated that workman then filed claim before Conciliation Officer, however, management showed no interest in said proceedings. Thereafter, present claim was filed by workman.
3. Management upon service of summons had appeared before the court and filed written statement to the effect that correct name of management is M/s. Ramesh Trading Corporation (India) and statement of claim filed against the allged M/s. Ramesh Trading Corporation which is a non-existent establishment and thus present claim is is not maintainable. It was also stated that workman has left his employment of his own on 30.06.2017 and has received all his dues in full and final and he was not in employment of management after 30.06.2017 and thus there is no question or reason for the management to terminate his services on 12.07.2017 or to retain his earned wages thereafter. It was also stated that workman has initially joined the services of management on 12.04.2005 and has left his employment of his own after receiving full and final dues on 05.01.2010 and he again joined the services of management afresh on 01.08.2016 and has again left his employment of his own after receiving full and final dues on 19.08.2016 and lastly, he LIR No. 3812-2018 2 again joined the services of management afresh on 06.01.2017 and has again left his employment of his own after receiving full and final dues on 30.06.2017 and thus after receiving his full and final dues from management, no industrial dispute can exist. It was also stated that workman had not worked for 240 days with the management as the claimant has lastly joined the services of management afresh on 05.01.2017 and left his employment on his own on 30.06.2017 after his receiving full and final dues.
4. On merits, it was stated that workman was getting all the facilities which were applicable on management and there was no reason for workman to demand the same. It was also stated that services of claimant were never terminated by management and it was claimant himself who left the services of management of his own after receiving his full and final dues. It was also stated that complaint filed by claimant before Labour Inspector was suitably replied by management and the officer was apprised with the true and correct facts of the case. It was also stated that as services of the claimant were never terminated by management but it is the claimant who has left his services of his own, hence, there was no reason for giving notice or notice pay or issuing charge sheet. The other contents of claim petition were denied and it was prayed that claim of workman be dismissed.
5. There was some correction in the name of management and workman moved application for calling corrigendum after necessary correction in the name of management. The corrigendum was received from concerned department on 14.10.2022 and thus, in view of the corrigendum, the name of management is being read as M/s. Ramesh Trading Corporation (India).
6. On the pleadings of parties, the following issues were framed in the matter:-
1. As per terms of reference?OP Parties
2. Whether the workman has worked for 240 days in preceding 12 months of alleged date of termination of his services?OPW LIR No. 3812-2018 3
3. Relief.
7. In evidence, workman produced himself in witness box in support of his case and after his cross-examination, the W.E. was closed.
8. In defence, management produced Sh. Rahul Gupta who was examined as MW-1 and after his examination, M.E. was closed on behalf of management.
9. I have heard the arguments and perused the record. My issue-wise findings are as under:
10. Issue No. 1. As per terms of reference?OP Parties and Issue No. 2. Whether the workman has worked for 240 days in preceding 12 months of alleged date of termination of his services?OPW :- Both these issues are taken up together being inter- connected.
11. It is the case of claimant that he was working with management since 1998 as "Karigar" on the monthly salary of Rs. 8,000/- and he never gave any occasion of complaint. It is pleaded that legal facilities as detailed in para No. 2 of the claim were not being provided to workman and he was deprived of same and on demand of said facilities, the management gave false assurance to provide the same. It is also pleaded that when he reached for duty on 12.07.2017, the management terminated his services without any cause and prior information. It is further the case of workman that he made a complaint dated 17.04.2017 before Labour Department, however, despite efforts of the Labour Inspector, the matter was not resolved and thereafter, he got issued a demand letter dated 17.04.2017 and despite service of same, the management neither took the workman back in service nor cleared his dues. It is further pleaded that workman then filed claim before Conciliation Officer, however, management showed no interest in said proceedings.
12. On the other hand, it is the case of management that workman has left his employment of his own on 30.06.2017 and has received all his dues in full and final and he was not in employment of management after 30.06.2017 and thus there is no question or reason for the management to LIR No. 3812-2018 4 terminate his services on 12.07.2017 or to retain his earned wages thereafter. It was also pleaded that workman has initially joined the services of management on 12.04.2005 and has left his employment of his own after receiving full and final dues on 05.01.2010 and he again joined the services of management afresh on 01.08.2016 and has again left his employment of his own after receiving full and final dues on 19.08.2016 and lastly, he again joined the services of management afresh on 06.01.2017 and has again left his employment of his own after receiving full and final dues on 30.06.2017 and thus after receiving his full and final dues from management, no industrial dispute can exist. It is further the case of management that he had not worked for 240 days with the management as the claimant has lastly joined the services of management afresh on 05.01.2017 and left his employment on his own on 30.06.2017 after his receiving full and final dues.
13. As far as evidence of workman is concerned, the workman has filed his evidence by way of affidavit and he relied upon several documents in support of his case. The complaint dated 17.04.2018 filed before Asst. Labour Commissioner is proved as Ex. WW-1/1, the report of Labour Inspector dated 01.08.2018 as Ex. WW-1/2, the certified copy of proceedings held by Labour Inspector as Ex. WW-1/3, demand notice dated 17.04.2018 as Ex. WW-1/4 and its postal receipt as Ex. WW-1/5 and complaint dated 25.04.2018 filed before SHO PS-Ashok Vihar as Ex. WW-1/6.
14. In his cross-examination, the workman admitted that he has no documentary proof that name of management is M/s. Ramesh Trading Corporation. Though in claim, it is mentioned that he had been working with management since 19978 but in cross-examination, WW-1 admitted that he has no document showing that he had been working with management since 1998. To make the matter worst, he further admitted that he does not have any document showing that he had worked with management for 240 days preceding 12 months from the date of termination. In his further cross-examination, WW-1 further deposed that LIR No. 3812-2018 5 minimum wages as per Govt. Rules was Rs. 14,000/- per month for skilled worker and he was getting Rs. 8000/- per month from management but he admitted that he did not file any complaint before any authority for paying him less wages. He further admitted that he is not having proof showing that he had been working with management for 12 hours in a day and that he had not filed any claim before any competent authority for recovery of overtime wages.
15. Furthermore, at one place, WW-1 deposed that no one has appeared before Labour Inspector on behalf of management and he further deposed that AR for management had appeared before Conciliation Officer at Nimri Colony and AR for management filed reply to his application. WW-1 further admitted that management had not issued any appointment letter to him during his service period.
16. So management has been successful in creating dent to the case of workman and the workman has not been able to substantiate his claim. The documents filed by workman are not sufficient to prove his claim. No appointment letter has been filed by workman nor any salary slip has been produced by him thereby establishing his relationship with management. Even no attendance record has been produced by him. So nothing material has been proved on record by claimant in support of his case and there are only self-serving statements of claimant without any valid and cogent evidence. The onus was upon the workman to prove that his services have been illegally terminated by management and that he had worked for 240 days in a preceding year but he failed to do so. Merely by issuing a demand notice and approaching the labour department ipso facto will not prove the case.
17. In this regard, reliance is placed upon judgment passed by Hon'ble Allahabad High Court, 2013 LLR 927 titled as U. P. State Warehousing Corporation and Another Vs Presiding Officer and Another wherein Hon'ble High Court in para No. 17 observed that " It is settled law that the person who files a claim is required to prove his case. The Industrial Dispute was raised at the instance of the LIR No. 3812-2018 6 union and even though, the provisions of the Evidence Act is not applicable in industrial proceedings, nonetheless, the burden of proof is upon the union and its worker to prove their claim before the Labour Court" .
18. So far as evidence led by management is concerned, the MW-1 Sh.
Rahul Gupta has relied upon various documents in support of case of management. The copy of receipt of full and final settlement dated 30.06.2017 is proved as Ex. MW-1/1, the copy of appointment letter dated 12.04.2005 is proved as Ex. MW-1/2 and receipt of full and final settlement dated 05.01.2010 as Ex. MW-1/3. MW-1 further proved the fresh appointment letter dated 01.08.2016 as Ex. MW-1/4 and receipt of full and final settlement dated 19.08.2016 as Ex. MW-1/5. The copy of last appointment letter has been proved as Ex. MW-1/6.
19. The perusal of these documents shows that workman has joined the management several times and left the services of his own after receiving full and final dues and particulars of workman and name of management is duly found mentioned on these documents. All these documents also bears the signatures of workman and even some of these documents also bears the thumb impression of workman. The careful perusal and comparison of signatures of workman on documents Ex. MW-1/1 to MW-1/6 with his signatures appended on claim and affidavit makes it clear that all these signatures are same.
20. The perusal of record also shows that workman has not filed any replication to the written statement filed by management and nothing in rebuttal to the pleadings of the management detailed in written statement has come on record. Rather, he has not disputed his signatures on Ex. MW-1/1 to MW-1/6. Further, if the signatures on documents Ex. MW-1/1 to MW-1/6 were not of him then he could have taken steps by moving appropriate application for comparison of his dispute signatures but again no such steps were taken by him.
21. In this regard, reliance is placed upon judgment passed by Hon'ble Supreme Court on 08.07.2008 in case titled as Ramesh Sankhala LIR No. 3812-2018 7 Vs. Vikram Cement etc. 2008 (14) SCC 58 wherein it was observed that workman cannot retain benefit if he want to prosecute claim petition instituted by him with Labour Court.
22. It has been held by Hon'ble High Court of Delhi in its judgment having titled as Shree Ji Sarees Vs. Ved Prakash Sharma, in Writ Petition (C) 2767 of 2012, decided on 21.05.2015 that "19. It is now settled law that a person who, approached court for enforcement of his legal rights must come to the court with clean hands and disclose all the facts to the court. Even when approaching a court of equity such as the High Court, invoking its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, the claimant should do so not only with clean hands but also with clean mind, clean heart and clean objective. Undoubtedly, the courts have to weight interest of justice vis-a-vis the private interest. However, a petition containing misleading and inaccurate statement(s), if filed to achieve an ulterior purpose, amounts to an abuse of process of the court. The court is not a forum to achieve an oblique purpose. Although, a beneficial legislation is to be given a liberal view and interpreted to the advancement of the class for which it is enacted. However, the court, cannot under the garb of the purpose which the enactment seeks to achieve, turn a blind eye and grant relief even in cases where the relief prayed is not established by evidences brought on record ". The above judgments squarely cover the present case also and is fully applicable herein.
23. In the cross-examination of MW-1, it has come that workman has himself prayed to leave the services and his dues were cleared and no document was required to be given when his accounts were settled. MW- 1 also deposed that he had appeared before Labour Inspector and joined almost all the proceedings. He further deposed that ESIC Facility was provided to workman at that time. In para No. 5 of his cross-examination, MW-1 also deposed that he was not required to call the workman back LIR No. 3812-2018 8 when he left the services and if workman wants to work, he is ready to take him back. From above discussion, it is ambit clear that workman has failed to create any dent to the case of management. The onus was high upon workman to prove his case but he has failed to prove the same on record.
24. The management has rightly argued that though workman was working with them and his dues were cleared by management when he left the services still he was required to prove the period of his service and that he has worked for 240 days, so on all counts, his case is not proved as he has failed to proved that he had worked for 240 days with management.
25. The AR for management has argued that Hon'ble Supreme Court in Krishna Bhagya Jala Nigam Ltd. Vs. Mohammed Rafi, (2009) 11 SCC 522 held that "initial burden of proof is on the workman to show that he had completed 240 days of service" .
26. In Manager, Reserve Bank of India, Banglore Vs. S. Marti and Ors. 2005 (5) SCC 100, a three Judge Bench of Hon'ble Supreme Court of India held that initial burden of proof was on the workman to show that he had completed 240 days of service. In R. M. Yellatti Vs. The Assistant Executive Engineer, JT 2005 (9) SC 340 also similar view has been taken. In G. M., B. S. N. L. and Ors. Vs. Mahesh Chand, 2008 (2) SCR 950 Hon'ble Supreme Court held that burden of proof lies on workman to prove that he had worked for more than 240 days in preceding year prior to alleged retrenchment.
27. Further reliance is placed upon judgment titled as Surendranagar District Panchayat & Anr. Vs. Jethabhai Pitamber Bhai, (2005) 8 SCC 450 wherein it was held that " It is for workman to adduce evidence apart from examining himself, to prove the said factum- Such evidence may be in form of receipt of salary or wages for 240 days or record of his appointment or engagement for that year (attendance register, muster roll) to show that he has worked LIR No. 3812-2018 9 with the employer for 240 days. "
28. The law settled in above judgments is fully applicable to the facts of the present case.
29. So in view of the above observation, both these issues are decided in favour of managements and against the workman and it is held that workman himself abandoned the job of his own after taking full and final settlement and his services were never terminated by management. It is also held that workman has not worked for 240 days in preceding 12 months of alleged date of termination of his services.
30. Relief :- In view of the findings of the court on issues, it is held that the workman is not entitled to any reliefs against the management. The claim of workman stands rejected.
31. With these observations the statement of claim of the workman filed under the provisions of the Industrial Disputes Act is disposed off. Reference is answered and disposed off accordingly.
32. A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Digitally
signed by
AJAY AJAY GOEL
Pronounced in open court GOEL
Date:
2023.01.21
on 20.01.2023. 14:54:36
+0530
(AJAY GOEL)
PRESIDING OFFICER LABOUR COURT-06/
ROUSE AVENUE COURT, NEW DELHI.
LIR No. 3812-2018 10