Delhi District Court
Sh. Hira Joshi vs Alok Madan on 30 August, 2010
IN THE COURT OF SH. MANMOHAN SHARMA
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI
DID No. 138/07
INDUSTRIAL DISPUTE BETWEEN
Sh. Hira Joshi,
S/o. Sh. Goverdhan Joshi,
r/o WZ59, Naraina Village,
New Delhi,
C/o. Hindustan Engineering & General Majdoor Union,
D2/24, Sultanpuri,
New Delhi.
.........Workman
AND
Alok Madan,
M/S Wightech Equipment,
F22, A Block, IIIrd Basement,
DDA Shopping Complex, Ring Road,
Naraina, New Delhi.
.........Management
Date of institution : 16.11.2007
Date of argument : 21.08.2010
Date of award : 30.08.2010
AWARD
1. An Industrial Dispute between the managements of Alok
Madan, M/s. Wightech Equipment, F22, A Block, IIIrd Basement,
DDA Shopping Complex, Ring Road, Naraina, New Delhi and its
DID No. 138/2007 page 1 of page 12
workman Sh. Hira Joshi, S/o. Sh. Goverdhan Joshi, r/o WZ59,
Naraina Village, New Delhi, C/o. Hindustan Engineering & General
Majdoor Union, D2/24, Sultanpuri, New Delhi was raised directly by
the workman under section 10 (4A) of The Industrial Dispute Act,
1947 (in short Act).
2. Briefly stated, the claim is that the workman was working
with the management since last five years as Service Engineer with
the last drawn wages of Rs.5750/ per month. He stated that no
appointment letter or other legal facilities were given to him. He was
working with honesty and dedication and never gave any chance of
complaint to the management but management did not provide him
legal facilities like appointment letter, identity card, leave book,
weekly and festival holidays, overtime, bonus, ESI, PF etc. The
management also got signed blank papers and vouchers from the
workman. The workman made oral demand for providing legal
facilities but managements got irritated and tried to find out ways to
discontinue his services and on 03.04.2007 the management
terminated the services of workman without giving any notice or
intimation. The workman made a complaint to Asst. Labour
Commissioner and on his intervention the management admitted to
take the workman on duty but refused to employee him in presence of
the Labour Inspector. The workman served demand notice upon the
management on 24.07.2007 through registered post which was neither
replied nor complied with by the management. The workman has
challenged his termination as illegal. He was not reinstated and since
then he is unemployed and could not get any service. Workman
DID No. 138/2007 page 2 of page 12
claimed that he is entitled to reinstatement with continuity of service
and full back wages.
3. Notice of the claim was issued to the managements. The
management contested the claim by filing written statement.
4. The management in its written statement claimed that the
services of the workman was supervisory in nature and thus he was
not a workman entitled to protection of the Industrial Disputes Act.
The management stated that it never terminated the services of the
workman. Stand of the management is that the workman voluntarily
left the job of his own. It further denied that he did not permit to
workman to resume his duties. The management stated that the
workman may join the duty if he still interested. The management
also took the stand that the workman refused to join duty in presence
of the Labour Inspector as he wanted back wages. The management
prayed for dismissal of the claim.
5. A rejoinder was filed by the workman. He denied the
averments of the written statement.
6. From the pleadings of the parties following issues were
framed on 01.08.08 by my Ld. Predecessor :
1. Whether the claimant was a workman within
the meaning of term U/s 2(s) of ID Act? OPW.
2. Whether workman himself left his job of his
own on 04.04.07? OPM.
3. Whether service of the workman was
terminated? It so whether termination was
illegal and/or unjustified? OPW
DID No. 138/2007 page 3 of page 12
4. Relief.
7. Both the parties were directed to lead evidence.
8. Workman filed his affidavit Ex.WW1/A in evidence and
relied upon six documents. He was crossexamined by Management.
9. Management has examined MW1 Sh. Vinod Sharma, its
manager. He was cross examined by AR for the workman but on
07.08.2009 his crossexamination was deferred. The witness never
turned up in the witness box again.
10. I have heard Sh. R. D. Sharma for the workman and Sh.
Suresh Kumar for the management being their ARs and have gone
through the record. Findings on the issues are as under:
ISSUE NO. 1 : Whether the claimant was a workman within the
meaning of term U/s 2(s) of ID Act? OPW.
11. The management has taken an objection that the claimant is
not a workman as he was performing supervisory functions.
12. It is settled law that it is neither the designation nor the
quantum of salary are the relevant factors for determining whether a
particular person is a workman or performing work of managerial or
supervisory nature.
13. The designation of the claimant is Service Engineer. WW1
has stated in his crossexamination that he was repairing machines. He
again said that he was manufacturing the machines.
14. In the entire crossexamination of WW1 no facts have been
brought forth to establish that the nature of the duties of the claimant
were of supervisory nature. MW1 in his affidavit in evidence MW1/A
DID No. 138/2007 page 4 of page 12
has not made any deposition on this aspect. Whether the workman
was manufacturing the machines or repairing the machines is
immaterial. What is to been seen if he was supervising the work of
other employees. There is no such evidence on record to show that the
workman was supervising the work of other employees.
15. The evidence on record does not indicate that the nature of
the work of claimant was supervising in nature. He was working
under the directions of the management and the dominant nature of his
work was of skilled or technical person. Therefore the claimant is
workman within the meaning of Section 2(s) of the Industrial Disputes
Act, 1947.
16. Therefore the finding on this issue is returned in favour of
the workman and against the management.
Issue no. 2 & 3 Whether workman himself left his job of his own on
04.04.07? & Whether service of the workman was terminated? If so,
whether termination was illegal and/or unjustified?
17. I am taking these two issues together for better appreciation
of the evidence, the issues being interlinked.
18. The stand of the management is that the workman while
being examined as WW1 has stated that "when I left the job of the
management, there were three service engineers, working in the
management".
19. AR for management has argued that the workman has
himself admitted that he had left the job. AR for the workman has
stated that the evidence has to be read as a whole and in the statement
DID No. 138/2007 page 5 of page 12
of the workman quoted there were two questioned combined in one
and therefore, the use of the word left.
20. The evidence of the workman has been recorded in a
narrative manner and not in interrogative manner. Therefore, to get
the full import of the statement the question has to be reformulated by
doing some reverse engineering. By this process, the question which
was put to the workman can be formulated as "When you left the job
of the management, how many service engineers were working in the
management?"
21. An admission must be specific, unambiguous. It may be
express or implied.
22. In the instant question, the question is as to the number of
service Engineers who were employed with the management at the
relevant time. The question is not with respect to whether the
workman left his job on his own or whether his services were
terminated. The word 'left' was supplied in the question itself.
Therefore, it was not flowing as an admission from the witness
WW1.
23. Therefore, when the word "left" was supplied in the
question itself in my view it cannot be treated as an admission on the
part of the workman.
24. There is no evidence led by the management except the self
serving statement of its manager that the workman left the job on his
own. There is no letter filed or proved on record by the management
to workman to show that the management made any efforts to call
DID No. 138/2007 page 6 of page 12
upon the workman to join his duties. The management has not
specifically denied the receipt of demand notice. On the contrary, the
workman as WW1 was given a suggestion that he had sent a demand
notice to the management which he admitted. No case has been
propounded that the demand notice was replied thereby calling upon
the workman to join the duties.
25. In document EX.WW1/1, the Labour Inspector has stated
that the management refused to reinstate the workman during
conciliation proceedings. AR for management has argued that the
report has not been proved in accordance with law as the Labour
Inspector was not brought to the witness box. Rules of evidence, in
strict sense are not applicable in an industrial adjudication but the
principles of natural justice ought to be observed. It is settled law that
there should be material before the court and not evidence in the strict
sense of the word.
26. An industrial adjudication is an inquiry as opposed to the
work trial. The report of Labour Inspector Ex. WW1/1 has been given
by him in the discharge of his official function and a presumption of
the official acts having been regularly performed can be raised taking
a cue from section 114 of the Evidence Act. It was open to the
management to summon the record from the Labour Office if it
wanted to rebut the report. No such challenge to the report was put
either in the cross examination of WW1 or otherwise.
27. Record reveals that when MW1 was crossexamined on
07.08.2009, he was asked if the management was ready to offer duty
to the workman and he sought time to seek instructions. MW1 did not
DID No. 138/2007 page 7 of page 12
turn up in the court thereafter. These facts, taken up in totally
corroborate the stand of the workman that he did not leave the services
on his own and there was no offer from the management to join the
duties. The so called offer made in para 3 of the written statement was
only a sham or moonshine. There was no genuine offer on the part of
the management to call back the workman to join the duties as he left
the same voluntarily.
28. The crossexamination of MW1 was not complete as he did
not revert to the court. AR for management stated that still the
evidence of MW1 can be read.
29. In my view, the management cannot use the evidence of
MW1 in its favour but the workman can read the same if MW1 has
made some admission in his favour. My view is based on the
presumption that nobody can be permitted to have advantage of its
own wrongs.
30. The management has not produced MW1 in the witness box
after 7.8.2009 for the reasons best known to it. It is not the case of the
workman that MW1 is not available or has died etc. Therefore, the
management cannot use the evidence of MW1 in its favour.
31. There is ample evidence on record in the testimony of WW1
that he was forcefully expelled from the office by the management and
he made repeated attempts to join his services. He also deposed
visiting the management with the Labour Inspector. While cross
examining WW1, management put a question regarding the report of
Labour inspector and whether the workman signed the same or not.
In my view, whether the workman signed the report or not is
DID No. 138/2007 page 8 of page 12
immaterial. Therefore, if the signatures of workman does not appear
on Ex. WW1/1 it does not reduce its evidentiary value
32. From the entire evidence on record it is clear that the
workman did not leave his services voluntarily but his services were
terminated by the management. The termination was not in
compliance of the laws and therefore, it was illegal and unjust.
33. These two issues are answered accordingly.
RELIEF
34. The workman has claimed reinstatement with full back wages
and continuity of service alongwith all other consequential benefits.
35. As regards back wages, the law is crystal clear that onus to
prove that the workman was not gainfully employed is on the
workman. There is a catena of case law on this aspect to mention few
are the judgements of the Hon'ble Supreme Court of India in
Municipal Council, Sujanpur Vs. Surinder Kumar 2006 SCC
(L&S) 967; Kendriya Vidhalaya Sanghathan Vs. S. C. Sharma
2005 LLR 275.
36. Now the evidence in this case is to be appreciated to find out
if the workman has discharged the initial onus of proof.
37. The workman has given the following statement on the
aspect of nongainful employment :
"That the deponent since the date of his
termination is completely unemployed and has
no means of sustenance he could not get any
employment despite his best efforts."
DID No. 138/2007 page 9 of page 12
38. Now the moot question is whether the above statement is
sufficient to discharge the onus of proof on the part of the workman.
39. In Kendriya Vidhalaya Sanghathan Vs. S. C. Sharma
2005 LLR 275 it has been held as under :
"When the question of determining the
entitlement of a person to back wages is
concerned, the employee has to show that he was
not gainfully employed. The initial burden is on
him. After and if he places material in that
regard, the employer can bring on record
materials to rebut the claim. In the instant case,
the respondent has neither pleaded nor placed any
material in that regard."
40. The present case also sails in the same boat. There is only a statement. No facts or material has been placed on record by the workman to discharge the onus except his own selfserving statement. The said statement is also omnibus and allencompassing in nature. It is more in the nature of an inference, and therefore can hardly be termed as evidence. It is the duty of parties to give evidence on facts and it is the prerogative of Courts to draw inferences from the same. Inferences or opinions given by the parties is no evidence in the eyes of law.
41. What efforts the workman had made to find an alternative job is within his personal and special knowledge. Under section 106 of DID No. 138/2007 page 10 of page 12 the Evidence Act the onus to prove such facts is on the person having such special knowledge. Thus the yoke of burden regarding what prospective employers he approached for job, what was the outcome, how he kept his body and soul together during all these years etc. are all facts which are within the personal knowledge of the workman. These facts are conspicuous by their absence in the evidence of the workman.
42. There is one surprising suggestion given to WW1 which is that he was unemployed since termination of his service and he admitted the same. However, from the other questions put to the workman the management does not want to suggest the non gainful employment. The evidence is to be appreciated in totality and not just from one single statement.
43. It also cannot be lost sight of that there is employment crunch and if an employee is thrown out his prospects for re employment are not very fair. It is also likely that a new employment would come at some discount to the last drawn salary.
44. Award of back wages is discretionary. It is the duty of the court to take judicial notice of the common course of events. It is humanly impossible to believe that the workman would have carried out his living without any source of sustenance. Thus his being not gainfully employed through out is ruled out.
45. Under these facts and circumstance and to balance the rights of the parties, it is directed that workman be reinstated in services with continuity of service and all consequential benefits. The workman is also awarded back wages @ 45% at the rate of his last DID No. 138/2007 page 11 of page 12 drawn wages/salary.
46. Award is passed accordingly. A copy of the award be sent to Secretary (Labour) for necessary action and be also sent to server (www.delhicourts.nic.in). The file be consigned to the record room. ANNOUNCED IN THE OPEN COURT ON 30th August, 2010 (MAN MOHAN SHARMA) Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.
DID No. 138/2007 page 12 of page 12