Delhi District Court
Sh. Vivek Mishra vs M/S. The Executive Engineer on 24 October, 2016
BEFORE THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII : ROOM NO. 22 KKD COURTS :DELHI
ID No. 1195/16. (Old. No.131/15
Unique ID No.02402C40372032015.
Sh. Vivek Mishra
S/o Sh. Laxmi Kant Mishra,
Through Indian Steel & Metal Workers Union (Regd.),
1800/9, Govind Puri Extension, Kalkaji,
New Delhi110019.
R/o 669, Arjun Camp, Mahipal Pur, New Delhi110037
..............Workman
Versus
1. M/s. The Executive Engineer,
PWD Electrical Department, M451,
Ground Floor, MSO Building, I.P. Estate,
New Delhi110002.
2. M/s. Schindler India Pvt. Ltd.
67, 4th Floor, Pearls Building, B.K. Roy Cort,
Asaf Ali Road, Darya Ganj, New Delhi110002.
.............Managements
DATE OF INSTITUTION : 16.11.2015.
DATE ON WHICH AWARD RESERVED : 24.10.2016.
DATE ON WHICH AWARD PASSED : 24.10.2016.
A W A R D :
1. This reference was sent by the Government of NCT
of Delhi vide Order No. F.24(157)Lab./CD/15/865 dated 21.09.15,
with the following terms :
"Whether the workman Sh. Vivek Mishra S/o Sh.
Laxmi Kant Mishra & Sh. Prakash Chand S/o Sh.
Anup Kumar have been terminated illegally and /
or unjustifiably by the management; and if so, to
what relief are they entitled and what directions
ID No.1195/16 1/8
are necessary in this respect ?"
2. Claimant's case is that he was working as Operator
with management No.1 through management No.2 since
14.05.2013 at the last drawn salary of Rs.5,160/ per month. His
service record was neat and clean. He had not given any chance of
complaint. The management had obtained his signatures on blank
papers, vouchers and appointment letter at the time of appointment.
He was appointed by management No. 1, but he had worked with
management No. 2. He had no relationship with management No.
2. Against termination, he approached the labour department for
reinstatement, but the management did not cooperate. Case filed
before Conciliation Officer also went unresolved. He is jobless
since termination.
3. Written statement of management No.1 is to the effect
that there was no relationship of employer and employee between it
and claimant as he was employee of management No. 2 on contract
basis.
4. No Dispute Award was passed against management
No. 2 on 01.08.2016 due to nonfiling of its address for service by
the claimant.
5. Following issues were framed on 01.08.2016:
1. Whether there was relationship of employer and employee
between management No. 1 and claimant? OPW.
ID No.1195/16 2/8
2. As per terms of reference.
3. Relief.
6. On 24.10.2016, the case was fixed for WE but no WW
was present or summoned. Affidavit in evidence of any WW was
not filed. No one was responding for claimant since morning.
Previous ordersheets showed that no one was appearing for the
claimant since 11.02.16. It seemed that claimant had lost interest
in the case and hence, WE was closed.
7. The management No. 1 did not examine any witness.
Issue No. 1.
8. The law of the land is that onus is upon the claimant to
prove that he was employed with management No. 1 and had
worked with it for 240 days in the preceding year of termination of
his service. It was held in Range Forest Officer Vs. S.T.
Hadimani, 2002I, LLJ, 1053 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 ID No.1195/16 3/8 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."
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.1195/16 4/8 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 produced any evidence to prove the fact that he has worked for 240 days. No proof of ID No.1195/16 5/8 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 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 ID No.1195/16 6/8 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."
9. In the case in hand, the claimant did not appear in the witness box. He did not tender his affidavit in evidence. He did not examine any other witness in his support. There is nothing on the file which may establish his relationship with management No.
1. It is a case of no evidence and due to that reason, this issue is decided in favour of management No. 1 and against claimant.
Issue No. 2.
10. It has already been observed in issue No. 1 that the claimant has failed to establish his relationship. His case in statement of claim is that he was working with management No. 1 since 14.05.2013 at the last drawn salary of Rs.5,160/ per month. His tenure with management No.1 was smooth, neat and clean. There was never any allegation of misconduct and hence, there was ID No.1195/16 7/8 no occasion for the management to issue him a chargesheet. The claimant did not appear in the witness box to substantiate those facts. So, this issue is decided in favour of management and against claimant.
Issue No. 3:
11. Consequent to decision on issue Nos. 1 & 2, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. The reference is answered accordingly. Award is passed accordingly.
12. 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 24.10.2016. POLCXVII/KKD, DELHI.
ID No.1195/16 8/8