Delhi District Court
Subodh Sinha S/O. Mr. Jagdamba Sahai vs B57 on 16 August, 2014
Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID) No. 151/14
UNIQUE CASE ID No. 02402C0848742008
In the matter of :
Subodh Sinha s/o. Mr. Jagdamba Sahai
R/o. H. No. C506, J. J. Colony, Inder Puri, Delhi.
C/o. Readymade Garments Exports Employees Union,
I441, Karampura, New Delhi - 110015
.......... Workman / Claimant
Vs.
M/s. Le' Apparell's
(through its Proprietor Joginder Kapoor S/o. Late Sh. Jagan Nath Kapoor,
R/o. 24/40B, Tilak Nagar, New Delhi18
NOW DECEASED: DIED ON 02.11.2013
as per death certificate filed on 21.01.2014).
B57, Mayapuri Industrial Area,
Phase - I, New Delhi 110064 ......... Management
Date of Institution : 12.12.2008
Date of reserving for award : 02.08.2014
Date of award : 16.08.2014
AWARD:
1.TERMS OF REFERENCE Vide Order No. F.24(1362)/07/Lab./1051519 dated 19.11.2008 Secretary (Labour), Government of N.C.T. of Delhi, referred following industrial dispute between Subodh Sinha s/o. Sh. Jagdamba Sahai as represented by Readymade Garments Exports Employees Union, I441, Karampura, New Delhi - 110015 and management of M/s. Le' Apparell's, B57, Mayapuri Industrial Area, Phase - I, New Delhi - 110064 under section 10 (1) Page 1 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14
(c) and 12 (5) of the Industrial Disputes Act, 1947 read with Govt. of India, Ministry of Labour Notification No. S11011/2/75-DK(IA) dated the 14th April, 1975 for adjudication by Labour Court No. XII: "Whether termination of services of Sh. Subodh Sinha S/o Sh. Jagdamba Sahai by the management is illegal and/or unjustified; and if yes, to what relief is he entitled?"
2. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM
(i) The workman had been in employment of management since 09.09.2004 at the post of 'Checker' and his last drawn wages were Rs.3,636/ per month.
(ii) The workman had been performing his duties with sincerity, diligence, devotion, dedication and workman had an uninterrupted, unblemished and meritorious service record, and never gave any cause of complaint to management.
(iii) Management was not providing proper and legitimate facilities to workman and was exploiting the workman in derogation and violation of labour laws, and when workman raised his demands, management got annoyed.
Management used to procure signatures of workman on blank papers, vouchers and receipts, and management used to manipulate records of workman.
(iv) Workman started raising his voice against exploitation and for his legitimate demands and rights. Workman number of times asked the management to provide wages according to updated notification of the Govt. of NCT of Delhi with other benefits. Management adopted the vindictive attitude towards the workman as workman was raising his voice for his legitimate rights Page 2 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 and against the unfair labour practices of management.
(v) When oral demands of workman for his legitimate rights were not made out, workman finding no other option, filed a complaint against the management to Labour Office but management neither complied the direction of Labour Office nor met out the demand of workman.
(vi) Management also kept with them earned wages of workman for the month of June 2007 and, despite complaint to Labour Office and reminder to management, management failed to give earned wages for the month of June 2007.
(vii) After the complaint of workman to Labour Office, management got annoyed with workman and threatened to terminate from his services and also to create fear and demoralized him; management also brought 'goonda' elements in the establishment to terrorize the workman.
(viii) After the complaints and legitimate demands of workman, management got annoyed and become unhappy and continuously threatened the workman for his termination from services and, at last, it terminated the services of workman on 20.06.2007 and threw out the workman with the threat of dire consequences to the workman in annoyance without any rhyme and reasons.
(ix) Thereafter, workman lodged a complaint to labour department regarding his termination but management with their adamant attitude refused to take back the workman on his services.
(x) Workman sent a demand notice to management on 17.07.2007 and same was duly received by the management but no positive response has been given Page 3 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 by the management, which clearly shows the malafide intention of management.
(xi) Workman also filed a case against management regarding his illegal termination before Conciliation Officer but conciliation failed due to adamant attitude of management. Hence, the present reference.
(xii) The impugned termination of workman is arbitrary, discriminatory, perverse, illegal, violative of Section 25 F of Industrial Disputes Act, 1947, contrary to the principles of natural justice, violation of Articles 14 and 21 of Constitution of India and otherwise also bad in law.
(xiii) Despite his best efforts workman is unemployed throughout from the date of his termination from the services.
(xiv) Workman begs to challenge the validity of impugned termination dated 20.06.2007 on the following, amongst others, grounds:
a) The impugned order of termination is illegal, arbitrary, discriminatory, unjustified, perverse and bad in law.
b) The impugned order is violative of section 25F of the Industrial Disputes Act, 1947 inasmuch as the management neither served one month's notice nor paid one month's wages in lieu of notice nor paid retrenchment compensation to workman.
c) The impugned termination of services of workman is violative of section 25F & G of the Industrial Disputes Act, 1947 as the other workers juniors to present workman are still working with management.
d) The impugned order is bad in law inasmuch as the termination of workman has been done not in good faith but in colourable exercise of power Page 4 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 and by way of victimization which tantamounts of unfair labour practice defined under Section 2 (ra) read with item 5 (a) and (b) of Schedule - V of the Industrial Disputes Act, 1947.
e) The impugned order is violative of Articles 14 and 21 of the Constitution of India inasmuch as the acts of management are arbitrary and discriminatory which deprived the workman of his means of livelihood.
f) The impugned order is bad in law inasmuch as the management has terminated the services of workman with malice, vice and non - application of mind.
g) The impugned order is bad in law inasmuch as it is contrary to the principles of natural justice.
h) The impugned order is, otherwise also, bad in law.
With these averments workman prayed for an award in his favour and against the management for his reinstatement in service with full back wages and continuity of service with all consequential benefits.
3. CASE OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF DEFENCE.
PRELIMINARY OBJECTION OF MANAGEMENT As per management, present industrial dispute is not maintainable under law being filed with ulterior motive and to extort money from the management as claimant has not worked for 240 days with it. No industrial dispute for his termination can be raised by the claimant who was appointed on probation basis and termination of his services is as per the terms of employment that during the period of probation services of the claimant can be dispensed with without any notice.
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ON MERITS, management denied the case as pleaded by workman in the statementofclaim and pleaded that claimant was appointed with the management only w.e.f. 01.11.2006 on probation with the condition that during the period of probation the services of claimant can be dispensed with without any notice. The services of workman were terminated on 20.06.2007 on the ground of unsatisfactory work during the period of probation. The management is within its right, as per the terms of employment, to terminate the services of a probationer if her / his work was not found satisfactory. Further, management pleaded that it was providing all the legal and statutory benefits to each and every employee including the claimant and, therefore, there was no reason for any complaint or demand for the same. Further, management pleaded that it is maintaining all the records as per statutory requirements and never procured signatures of claimant on any blank paper or documents. Management duly attended the conciliation proceedings and due to noncooperation and unreasonable demands of claimants conciliation proceedings failed. Claimant is gainfully employed with some other employer.
4. REJOINDER Workmen filed rejoinder to WS of management denying the stand taken by management and reaffirming the averments made in statement of claim.
5. ISSUES Vide order dated 01.07.2009 following issues were framed by Sh. S. K. Kaushik, Ld. POLC - XII:
(i) Whether the workman worked for 240 days during the last 12 calender months preceding the date she last worked with the management? OPW
(ii) Whether the workman was appointed on probation on Page 6 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 30.10.2006 and whether her service was terminated on 20.6.2007 due to her unsatisfactory work? OPM
(iii) As per terms of reference.
(iv) Relief. 6. EVIDENCE.
Workman appeared in the witness box as WW1 Mr. Subodh Sinha. Workmen relied upon documents: Ex.WW1/1 - ESIC Card of workman; Ex.WW1/2 (colly. 7 pages) - Pay Slips; Ex.WW1/3 - Leave Book for the year of 2006; Ex. WW1/4 - Identity Card; Ex. WW1/5 - Leave Application Vide No. C/N. 674 dated 23.05.2006; Ex.WW1/6 - Medical Certificate dated 21.11.2006 regarding age of workman; (NO DOCUMENT EXHIBITED AS Ex. WW1/7) Ex. WW1/8 - Complaint dated 21.06.2007 made to Assistant Labour Commissioner, Ex.WW1/9 - Report of Labour Inspector and Ex. WW2/1 - Declaration form submitted by the employer at Branch Office, Mayapuri.
(a) TRANSFER OF CASE FROM POLCXII TO POLCXIX Order dated 07.07.2011 suggests that the case was transferred from the Court of POLCXII to POLCXIX. On 07.07.2011 workman examined summoned witnesses namely WW2 Mr. Hira Lal from ESIC, Branch office, Mayapuri, Delhi and WW3 Mr. Hari Ballabh Retired Labour Inspector. Order dated 07.07.2011 reads as under : "07.07.2011 Present: Workman with AR Sh. Rahul Verma Sh. Hira Lal, UDC from ESIC Department is present. Sh. Hari Ballabh, Retired labour inspector is present. Sh. B. K. Chhabra AR for the management who is ex parte.
It is 12.10 p.m.
Case has been received by way of transfer. It be
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checked and registered.
Case was fixed for workman's evidence. WW2 Sh. Hira Lal and WW3 Sh. Hari Ballabh are present and examined in chief. Ld. AR for the management seeks adjournment to crossexamine the witnesses. His prayer is allowed subject to filing authority. He is unable to file authority today. Therefore, witnesses are discharged.
Put up for remaining workman's evidence on 291011.
(T.S. KASHYAP) POLCXIX/DELHI/070711"
Thereafter, on 11.05.2012 workman examined WW3 (sic) Mr. Ramesh Kumar, General Secretary of Readymade Garments Exports Employees Union. WE was closed on 11.05.2012 by Mr. Rahul Verma, AR for workman.
(b) MANAGEMENT BEING PROCEEDED EXPARTY AND APPLICATION(S) MOVED FOR SETTING ASIDE THE ORDERS VIDE WHICH MANAGEMENT WAS PROCEEDED EXPARTY.
After the framing of issues on 01.07.2009, workman was examined in chief on 01.09.2009 and case was adjourned for crossexamination of workman. On 07.04.2010 as none appeared for management till 2.10 p.m. despite repeated calls, right to crossexamine the workman was closed. WE was also closed and case was fixed for ME on 10.05.2010. On 10.05.2010, on request of management, case was adjourned to 21.07.2010 for ME subject to cost of Rs. 150/ to compensate the workman for travel expenditure. On 21.07.2010 again, on the request of management, case was adjourned to 23.09.2010 for ME as last opportunity subject to further cost of Rs.150/. On 23.09.2010 cost of Rs.300/ was paid to workman and case was adjourned to 19.11.2010 for ME. On 19.11.2010, management was proceeded exparty and case was adjournment to 13.12.2010 for final arguments. On 13.12.2010, case was adjourned to 15.12.2010 for purpose fixed at the request of workman. However, on Page 8 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 15.12.2010 case was adjourned to 15.01.2011 for WE as last opportunity. Thus, on 07.07.2011, workman examined WW2 Mr. Hira Lal and WW3 Mr. Hari Ballabh. It is noted that none appeared for management before the Court on 19.11.2010, 13.12.2010, 15.12.2010, 15.01.2011, 19.02.2011, 06.04.2011, 29.10.2011 and 12.03.2012. However, despite management being exparty vide order dated 19.11.2010, proxy appeared for ld. AR of management on 11.05.2012 on which date WE was closed, and case was adjournment to for final arguments.
Subsequently, Mr. Saurabh Munjal, ARM moved an application for recalling order dated 11.05.2012, to which workman filed reply on 23.08.2012. On 03.10.2012 Mr. K. K. Pandey, ARM filed his authority letter alongwith an application for recalling and setting aside order dated 07.04.2010, whereby management's right to crossexamine the workman was closed, and order dated 19.11.2010, whereby the management was proceeded exparty. Vide detailed order dated 06.12.2012 this application was decided by Sh. Sanjay Sharma ld. POLCXIX: KKD: Delhi by observing as under : ".... 8. Hence, in the interest of justice, the application is allowed subject to cost of Rs.2500/ and both the orders dt. 07.04.2010 and 19.11.2010 are set aside and the management is permitted to cross examine the workman and his witnesses. It is also made clear that the expenses of the witnesses of the workman shall also be borne by the management and only one opportunity shall be granted to it to cross examine the witnesses and thereafter to lead its evidence.
Application stands disposed of accordingly."
On 26.03.2013 cost was paid and workman was cross examined. Also, WW2 and WW3 were ordered to be summoned by management at their own cost for the next dated. On 06.11.2013, WW2 Mr. Hira Lal appeared. He was cross examined and discharged. WW3 Mr. Hira Ballabh was reported to be not Page 9 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 traceable despite repeated attempts to serve him. Hence, WE was closed. Case was adjournment on 06.11.2013 for ME on 21.01.2014.
On 21.01.2014 following order was passed:
"21.1.14 Pr.: w/m with Sh. Sunil Singh Ad.
Sh. Sashank Singh for mgt.
Copy of Death Certificate of the Prop. of mgt. filed and it is also informed that the prop. firm has been closed and further time has been sought for filing/leading evidence. Allowed.
Put up for ME on 2.4.14. last opp.
Sd/ POLC 21/1/14"
(c) TRANSFER OF THIS CASE TO THE COURT On 02.04.2014 vide Order No.1501506/Admn./KKD/Delhi dated 29.03.2014 of Ld. District & Sessions Judge, (East) KKD Courts, Delhi and Order No.5675 dated 28.03.2014 of Additional Labour Commissioner, Govt. of NCT of Delhi, this case was transferred to this Court from the Court of Sh. Sanjay Sharma ld. POLCXIX, Delhi.
On 02.04.2014 this case was received by way of transfer from Court of Sh. Sanjay Sharma, Ld. POLC - XIX, Delhi. On the said date, management was represented by Mr. Abhik, proxy counsel who appeared before the Court with Sh. Narender Kumar, Consultant with the management alongwith Mr. Ramesh Kumar Tuteja, Sr. Accountant with the management. On 02.04.2014, it was submitted that proprietor of management had expired 02.11.2013 and management was asked to furnish details of LRs of deceased proprietor Mr. Joginder Kapoor on the next date of hearing without fail. However, on 09.05.2014, Mr. K K Pandey, Adv for the management appeared and moved an Page 10 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 application for withdrawal of authorisation / vakalatnama. Copy of this application was supplied to ld. counsel for workman who had submitted that matter may be fixed for final arguments.
On 09.05.2014 an application was moved by Mr. K K Pandey, Adv. for management to withdraw vakalatnama / authorisation alleging that erstwhile proprietor of management namely Mr. Joginder Kapoor who had authorised to represent the case has died on 02.11.2013 and the legal heirs of late Mr. Joginder Kapoor are not in his contact. These averments in the application in hand are without any substance inasmuch as on 21.01.2014 ld. counsel for management had filed on record death certificate of Mr. Joginder Kapoor and had submitted that proprietorship concern has been closed. Also, on 21.01.2014 time was sought for filing / leading evidence. If the LRs of Mr. Joginder Kapoor were not in contact with the counsel for management one fails to understand (i) as to how ld. counsel was able to file on record death certificate of Mr. Joginder Singh; (ii) as to why on 21.01.2014 ld. counsel for management sought time for filing / leading evidence and (iii) as to how Mr. Narender Kumar, Consultant with the management and Mr. Ramesh Kumar Tuteja, Sr. Accountant with the management appeared before the Court on 02.04.2014 with Mr. Abhik Kumar, proxy counsel for management. Orders dated 21.01.2014 and 02.04.2014, without any doubt, suggest that LRs of Mr. Joginder Kapoor are very much aware about the present proceedings and, in every likelihood, they are in contact with ld. counsel for management. Despite having full knowledge about the present proceedings LRs of deceased Mr. Joginder Kapoor are not appearing before the Court. Also, the stand of the management as coming on record vide order dated 21.01.2014 regarding its closure does not appear to be convincing in view of the fact that on 02.04.2014 Page 11 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 Mr. Narender Kumar, Consultant with the management and Mr. Ramesh Kumar Tuteja, Sr. Accountant with the management appeared before the Court with Mr. Abhik Kumar, proxy counsel for management. In such circumstances, no ME has been led. Also, it is noted that on 26.05.2014 ld. counsel for workman submitted that he wanted to move an application but on 30.07.2014 ld. counsel submitted that he did not wish to move any application.
(d) EFFECT OF DEATH OF MR. JOGINDER KAPOOR, SOLE PROPRIETOR OF MANAGEMENT ON THESE PROCEEDINGS.
At this juncture, it would be pertinent to consider the effect of death of Mr. Joginder Kapoor on these proceedings under the provisions of Industrial Disputes Act, 1947. Proceedings have been initiated on a reference made u/s. 10(1)(c) and 12(5) of the Industrial Disputes Act, 1947 by the appropriate government. Neither the Industrial Disputes Act, 1947 nor the Industrial Disputes (Central) Rule, 1957 contain any provision to the effect that on the date of sole proprietor of management, proceedings before a Labour Court will abate. Provisions of Code of Civil Procedure, 1908 do not strictly apply to proceedings before this case. No provision in the Industrial Disputes Act, 1947 or The Industrial Disputes (Central) Rules, 1957 provide for applicability of provisions of Order 22 of Code of Civil Procedure, 1908 to proceedings before the Labour Court. Under section 15 of the Industrial Disputes Act, 1947, Labour Court is bound to submit its award to the appropriate government. Section 10(8) of the Industrial Disputes Act, 1947 provides that proceedings before Labour Court do not abate on the death of workman. Also, u/s. 18 (3)(c) of the Industrial Disputes Act 1947 an award is binding on the heirs, successors and assigns, in respect of the establishment to which the dispute relates, of the Page 12 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 employer. Stand regarding closure of business of management has already been disbelieved by the Court. It has already been noted that LRs can be taken to be having full knowledge of these proceedings. Thus, it is observed that despite death of sole proprietor of management, this Court is bound to answer the reference on merits on the basis of material available on judicial file and his death does / can not result in abatement of these proceedings before the Labour Court under the Industrial Disputes Act, 1947.
7. ARGUMENTS I have heard Sh. Sunil Kumar Adv. / AR for workman. None appeared for management. In fact on 09.05.2014 Sh. K. K. Pandey, Adv. for management had moved an application for withdrawal of authorisation / vakalatnama and none appeared before the Court thereafter till today to represent the management. Ld. counsel for workman relied upon case laws reported as (i) Hari Palace, Ambala City Vs. Labour Court, Rohtak and Anr. (1980) 11 LLJ 294; (ii) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Ors. Civil Appeal No.6767/13. Date of Decision August 12, 2013 by Hon'ble Supreme Court of India, (iii) Munshi Singh Vs. Nagar Panchayat 2010 LAB. I.C. 370; (iv) Smt. Laxmi Bharat Bavise (Widow) & Anr. Vs. M/s. Permanent Magnets Ltd. & Ors. 2012 LAB. I.C. 1809; (v) D. K. Yadav Vs. J.M.A. Industries (1993) 11 LLJ 696; (vi) Upper India Vs. The P.O. Labour Court 11 and Anr. 130 (2006) DLT 160; (vii) Reetu Marbles Vs. Prabhakant Shukla (2010) 2SCC 70 and (viii) Director, Fisheries Terminal Division Vs. Bhikubhai Meghaji Bhai Chawla Chavda AIR 2010 SC 1236.
Case laws relied upon by ld. counsel for workman perused with utmost regards particularly keeping in mind the question of their applicability in the Page 13 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 facts and circumstances of this case. I have gone through material available on judicial file very carefully. I have given a thoughtful consideration to the facts and circumstances of this case as they arise on the basis of material available on judicial file while keeping in mind relevant legal provisions.
8. My ISSUEWISE findings are as under : ISSUE NO. 1 Whether the workman worked for 240 days during the last 12 calender months preceding the date she last worked with the management? OPW It is a settled proposition of law that it is for the workman to prove that he completed not less than one year of continuous service with management to prove violation of provisions of section 25F of the Industrial Disputes Act 1947. Here as per workman he was in the employment of management since 09.09.2004 till 20.06.2007 on which date his services were, allegedly, terminated illegally / unjustifiably. In his crossexamination workman deposed that, "...It is incorrect to suggest that my date of appointment is 01.11.2006. I was appointed in the month of October or November 2004. I have no document to show that I was appointed in October or November 2004 except document Ex. WW1/5. It is wrong to suggest that the document Ex. WW1/5 is a forged and fabricated document as the same does not bear the stamp or signatures of any official of the management vol. There are signatures of one Mr. Srivastava, official of management at Point A. The affidavit Ex. WW1/A bears my signatures at Points P. It is correct that signatures at Point P on Ex. WW1/A are different from signatures appearing at Point B on Ex. WW1/5 vol. Both are my signatures. It is wrong to suggest that Ex. WW1/5 has been later on created and manufactured by me so as to prove my employment prior to 23.11.2006. It is incorrect to suggest that I have not worked with the management prior to Page 14 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 01.11.2006. It is wrong to suggest that I have not completed 240 days with the management. It is further wrong to suggest that I had placed no document on record to show that I had worked with the management for more than 240 days....". In the facts and circumstances of this case, document Ex. WW1/5 does not inspire much confidence from judicial mind. Workman himself is relying upon documents Ex. WW1/1 and Ex. WW1/2 all of which mention the Date of Appointment / Joining of workman 01 Nov. 2006. Further, documents Ex. WW1/5 is not consistent with Leave Book Ex. WW1/3 relied upon by the workman himself. In the leave book Ex. WW1/3 the alleged leaves as mentioned in Ex. WW1/5 have not been mentioned. Identity Card Ex. WW1/4 relied upon by workman also mentions his date of joining as 01.11.2006. There is no proof of workman getting salary from management at any time prior to 01.11.2006. In the totality of facts and circumstances of this case documents Ex. WW1/5 by itself does not prove that workman worked with the management since 09.09.2004 till 20.06.2007. Workman has even not examined any co workman in support of case as pleaded by him in the statementofclaim.
Workman has not even cared to plead as to how and under what circumstances documents relied upon by workman himself happened to mention his date of appointment / joining as 01.11.2006 instead of 09.09.2004. Documents Ex. WW1/8 and Ex. WW1/9 also do not help the workman to discharge onus of this issue. Today number of days between 01.11.2006 till 20.06.2007 comes out to be 232 (30 days of Nov. 2006, 31 days of Dec. 2006; 31 days of Jan. 2007, 28 days of Feb. 2007, 31 days of March 2007, 30 days of April 2007, 31 days of May 2008 and 20 days of June 2007.). Self serving affidavit of workman in the totality of facts and circumstances of this case does not prove that he worked with management during the period from 09.09.2004 Page 15 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 till 20.06.2007. Workman has failed to discharge onus of this issue and the same is decided against the workman.
ISSUE NO. 2 Whether the workman was appointed on probation on 30.10.2006 and whether her service was terminated on 20.6.2007 due to her unsatisfactory work? OPM In this case, management has not led any evidence. Nor suggestions corresponding to this issue have been given in the crossexamination of workman WW1 Mr. Subodh Sinha. Issue is decided against the management. ISSUE NO. 3: As per terms of reference.
("Whether termination of services of Sh. Subodh Sinha S/o Sh. Jagdamba Sahai by the management is illegal and/or unjustified; and if yes, to what relief is he entitled?") In view of my findings on issue no.1, workman can be said to have failed to prove violation of provisions of section 25F of the Industrial Disputes Act, 1947. For proving violation of provisions of section 25G of the Industrial Disputes Act, 1947 workman is not required to prove that workman had worked for a period of 240 days during twelve calender months preceding the termination of his services and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of 'last come first go' without any tangible reason. (Harjinder Singh Vs. Punjab State Warehousing Corporation AIR 2000 SC 1116 relied). But here workman has not even pleaded the names of persons who were junior to him but were retained in service by management. A bare averment in statementofclaim does not prove violation of provisions of section 25G of the Industrial Disputes Act, 1947. What is most important to note is that there are no depositions in the evidence affidavit (Ex. WW1/A) of workman regarding violation of provisions Page 16 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014 Subodh Sinha Vs. M/s. Le' Apparell's ID No. 151/14 of section 25G of the Industrial Disputes Act, 1947. Affidavit of workman mentions about violation of provisions of section 25F of the Industrial Disputes Act, 1947 only. Without specific depositions of workman in his evidence affidavit regarding violation of provisions of section 25G of the Industrial Disputes Act, 1947, it cannot be said that workman has been able to prove violation of section 25G of the Industrial Disputes Act, 1947. Thus, neither violation of provisions of section 25F nor 25G of the Industrial Disputes Act, 1947 is made out on the basis of material available on judicial file. Issue is decided against the workman.
ISSUE NO. 4: Relief:
In view of my findings on above issues, workman is held to be entitled to no relief.
9. Parties to bear their own costs.
10. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 16.08.2014 (ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi Page 17 to 17 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/16.08.2014