Delhi District Court
7. In Workmen Of Nilgiri Coop. Marketing ... vs . State on 22 February, 2007
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 251/06
BETWEEN
The Workmen
1. Sh. Tilak Raj S/o Sh. Chaman Lal
2. Sh. Rajender Kumar S/o Sh. Chaman Lal and
3. Sh. Rakesh Kumar S/o Sh. Chaman Lal
C/o General Mazdoor Lal Jhanda Union
I-441, Karampura,
New Delhi- 110015.
AND
M/s Ambay Plastic
K-19, Udyog Nagar, Peera Garhi,
Rohtak Road, Nangloi,
Delhi- 110041.
AWARD
1. The National Capital Territory of Delhi, through its Secretary
(Labour) vide reference No. F.24(1610)/2002-Lab/19007-11 dt. 10.10.2002
referred the dispute for adjudication between the Management of M/s Ambay
Plastic and its Sh. Tilak Raj and 2 others in the following terms of reference:-
"Whether the services of Sh. Tilak Raj, Sh. Rajender
Kumar and Sh. Rakesh Kumar have been terminated
illegally and, or unjustifiably by the management, and
if so, to what sum of money as monetary relief
alongwith consequential benefit in terms of existing
laws/Government notifications and to what other relief
is he entitled and what directions are necessary in this
respect?"
2. Workmen have filed statement of claim stating therein that they
have been employed with the management as per details given below:-
Name Date of Designation Wages
Appointment
Tilak Raj 19.03.1997 Painter Rs. 4000/-
Rajender Kumar 25.03.1997 Painter Rs. 3300/-
Rakesh Kumar 25.03.1997 Painter Rs. 2500/-
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It is stated that the workmen were working sincerely and diligently to the
satisfaction of management and never gave any chance of complaint to the
management. It is stated that the management was obtaining signatures of
workmen from time to time on blank papers, blank vouchers and blank
appointment letters and the copies of the same were not supplied to the
workmen and the management was also not maintaining muster roll of the
workmen where workmen were marking their attendance and the
management was also not providing legal facilities and also not making
payment of bonus and on oral demand of the same management started
remaining annoyed with the workmen and terminated the services of
workmen on 05.11.2001 and earned wages of workmen for October 2001 and
November 2001 were also not paid and no notice or charge sheet was issued
to the workmen before terminating their services. It is stated that the workmen
made complaint to the Labour Authorities but despite efforts of the Labour
Inspector workmen were not reinstated. Workmen presented their claim
before the Conciliation Officer but due to non-cooperative attitude of the
management conciliation was not arrived and the case was sent to the court.
It is prayed that an award be passed thereby reinstating the workmen in
service with full back wages and continuity of service.
3. The notice of statement of claim was issued to the management
but the management failed to appear despite service and was proceeded ex-
parte by my Ld. Predecessor vide order dt. 19.02.2004 and the case was
fixed for ex-parte evidence of workmen.
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4. In support of their case the workmen examined workman Sh. Tilak
Raj as WW1, workman Sh. Rajinder Kumar as WW2 and workman Sh.
Rakesh Kumar as WW3.
5. I have heard authorised representative for workman and carefully
perused record.
6. Workman Sh. Tilak Raj/WW1 adduced evidence by way of
affidavit Ex. WW1/A and he has relied on copy of report of the Labour
Inspector Ex. WW1/1 and copy of the claim filed before Conciliation Officer
Ex. WW1/2. Workman Sh. Rajender Kumar/WW2 adduced evidence by way
of affidavit Ex. WW2/A and has relied on copy of the claim filed before the
Conciliation Officer Ex. WW2/1. Workman Sh. Rakesh Kumar/WW3 adduced
evidence by way of affidavit Ex. WW3/A and has relied on copy of claim filed
before the Conciliation Officer Ex. WW3/1. In the report Ex. WW1/1 the
Labour Inspector has stated that in connection with complaint dt. 18.12.2001
of the workmen he had gone to the management but the management
refused to reinstate the workmen and the management was given notice to
appear before him on 21.12.2001 and 31.12.2001 but the management did
not appear. Ex. WW1/1 does not prove that the workmen were appointed by
the management or the date of appointment of workmen with the
management and the wages of the workmen and that the workmen have
worked continuously for 240 in a year with the management. Copies of claim
filed before the Conciliation Officer Ex. WW1/2, Ex. WW2/1 and Ex. WW3/1
also do not prove the date of appointment of workmen with the management
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or the post of the workmen or the wages of the workmen or that the workmen
have worked continuously for 240 days in a year with the management.
7. In Workmen of Nilgiri Coop. Marketing Society Ltd. vs. State
of Tamil Nadu and Ors., 2004 LLR 351 Hon'ble Supreme Court held that:
36. In a given case it may not be possible to
infer that a relationship of employer and employee
has come into being only because some persons
had been more or less continuously working in a
particular premises inasmuch as even in relation
thereto the actual nature of work done by them
coupled with other circumstance would have a role to
play.
38. The control test and the organization
test, therefore, are not the only factors which can be
said to decisive. With a view of elicit the answer, the
court is required to consider several factors which
would have a bearing on the result: (a) who is
appointing authority; (b) who is the pay master; (c)
who can dismiss; (d) how long alternative service
lasts; (e) the extent of control and supervision; (f) the
nature of the job, e.g. whether, it is professional or
skilled work; (g) nature of establishment; (h) the right
to reject.
8. In Range Forest Officer v. S.T. Hadimani, 2002 (93) FLR 179
(SC), the Hon'ble Supreme Court held that 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
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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.
9. In Rajasthan State Ganganagar S. Miils Ltd. v. State of
Rajasthan and another, 2004 (4) LLN 845; Municipal Corporation,
Faridabad v. Siri Niwas, 2004 LLR 1022 (SC): 2004 (4) LLN 785 and
Madhya Pradesh Electricity Board v. Hariram, 2004 (4) LLN 839: 2005
LLR 1 (SC), the Hon'ble Supreme Court reiterated the principle that 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 examining himself to prove
the factum of his being in employment of the employer.
10. In Surendranagar District Panchayat and Anr. v. Jethabhai
Pitamberbhai, 2006 LLR 250 the Hon'ble Supreme Court held that when the
workman apart from examining himself in support of his contention has not
produced any proof in the form of receipt of salary or wages for 240 days or
record of his appointment or engagement for that year to show that he has
worked with the employer for 240 days to get the benefit under section 25F of
the Industrial Disputes Act, in the absence of evidence on record the Labour
Court and the High Court have committed an error in law and fact in directing
reinstatement of the respondent-workman.
11. Hence, as per aforesaid decisions it is for the workmen to prove -6- that they have been employed with the management for the period as alleged and their services were illegally terminated by the management.
12. The contention of AR for workmen is that the management has failed to produce the record despite issuance of notice to the management to produce the record and in the circumstances adverse inference has to be drawn against the management.
13. In A. I. Railway Parcel and Goods Porters Union vs. Union of India and others-2003(99)FLR-203 it was held that:
As per the established principle of law, the petitioners in order to succeed will have to substantiate their claim. Non-production of evidence in opposition will not support the claim of the petitioners even by legal fiction. The Assistant Labour Commissioner, in our opinion, has failed to appreciate this proposition of law while recommending the claim of petitioner.
14. In Ravi N. Tikoo v. Deputy Commissioner (S.W.) & Ors. 2006 II AD (DELHI) 560 our own Hon'ble High Court observed as under:
37. "At this stage, it becomes necessary also to know that extent to which the workman is required to prove his case in the light of the absence of non-traverse by the management and lack of any defence before the industrial adjudicator. Such issue can be examined in the light of the provisions of Order 8 Rules 5 & 10 of the Code of Civil Procedure and the principles of law laid down thereunder.
Even if the respondent has not appeared before the court, the court has to exercise discretion as to the manner in which further proceedings should take place. The court would examine the allegations made by the claimant and the material placed on record, and if fully satisfied, would proceed to -7- answer the reference in favour of the workman. However, the basic principle being that where a claimant comes to court, he must prove his case, cannot be whittled down even in a case where no respondent appears. The court having called upon claimant to lead its evidence would be required to look at the case set up by the claimant which would include the pleadings and evidence in support and evaluate the same and be satisfied that the case set up by the claimant has been adequately established.
It is settled law that the party seeking a claim and adjudication has to prove its case before the court. Merely because, the respondent or the defendant has chosen to remain absent from the proceedings before the court or the tribunal, it does not follow that the consequence has to be a judgment or an order in favour of the claimant without any further proof of its contentions. A claim could be required to be proved by cogent and reliable evidence.
38. In this behalf in (2005) 5SCC 100 entitled Manager, Reserve Bank of Bangalore vs. S. Mani & Others, the Apex Court observed thus:-
"Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore, not correct to contend that the plea raised by the respondents herein that they had worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. In any event, the contention of the respondents having been denied and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the union dated 30-5-1988 and 11-4-1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the -8- allegations made therein cannot be said to have been proved, particularly in view of the fact that the contents thereof were not proved by any witness . Only by reasons of non-response to such letters, the contents thereof would not stand admitted. The Evidence Act does not say so."
15. As per order dt. 18.02.2005 notice issued to the management to produce the record through registered post was received back with the remarks of Post Man 'addressee refuses to accept'. The contention of AR for workmen is that adverse inference has to be drawn against the management for not producing the record. As per aforestated judgements the burden of proof is on the workmen to show that they have worked for 240 days in a given year and this burden is discharged only upon the workmen stepping in the witness box and the workmen adducing cogent evidence, both oral and documentary and if employer fails to produce the record drawing of adverse inference ultimately would depend thereafter on facts of each case. However, mere affidavits or self-serving statements made by the workmen will not suffice in the matter of discharge of the burden placed by law on the workmen to prove that they had worked for 240 days in a given year. In the present case the workmen have only examined themselves in support of their contentions. The workmen have not produced any evidence in the form of receipt of salary or wages for 240 days or record of their appointment or engagement to show that they had worked with the employer for the period as alleged.
16. In the circumstances, I am of the view that the workmen have failed to prove that they have worked for a period of 240 days or more with -9- the Management. Accordingly, the workmen are not entitled to the reliefs as claimed. Reference stands answered accordingly. Copies of award be sent to appropriate Govt. for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 22.02.2007.
(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI -10- ID 251/06 22.02.2007 Present: Workman Sh. Tilak Raj in person.
Management is ex-parte.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room.
POLC/22.02.2007