Delhi District Court
Between vs M/S. Dhawan Pesticides on 7 March, 2009
ID Nos.509/96 (old) & 241/08 (new)
IN THE COURT OF DR. SHAHABUDDIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID Nos.509/96 (old) & 241/08 (new)
Date of Institution : 21.09.96
Date on which Award reserved : 19.02.09
Date of passing of Award : 07.03.09
BETWEEN:
Workman Sh. Dinesh @ Tun Tun, c/o. Delhi State Industries & General
Employees Congress Union, 25/369, New Moti Nagar, New Delhi15.
............. The workman
AND
M/s. Dhawan Pesticides, BC96, Shalimar Bagh (Paschim), New Delhi
52.
.............The Management
AWARD
1.The Secretary (Labour), Govt. of National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Labour Court vide Notification No. F.24 (3623)/96/Lab.4192832 dated 30.08.96 with the following terms of reference.
"Whether the services of Sh. Dinesh Alias Tun Tun have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"Page 1 of 9
ID Nos.509/96 (old) & 241/08 (new)
2. The main submissions made by the workman in his statement of claim are to the effect that he was working with the management at the post of Operator for last 19 years drawing wages @ Rs.2000 per month; that the management was not providing legal facilities due to him; that management terminated his services on 10.09.95 without giving him any notice; that he made a complaint to the Labour Inspector and Labour Inspector visited the management but the management did not take him back on duty. Lastly, a prayer was made for his reinstatement along with full back wages and all other consequential benefits as per law.
3. The averments of the statement of claim have been strongly opposed in the Written Statement (in short WS) filed on behalf of the management.
4. In the rejoinder filed by the workman, the averments of the W/S were denied and those of the statement of claim were reiterated.
5. On the basis of pleadings of the parties, following issue was framed in this case on 12.08.98:
"As per terms of reference".
6. Subsequently, additional issues were framed in this case on 26.07.06 to the following effect: 1A. Whether the management was engaged in the business of contractorship of supply & applying pesticides for preconstruction anti Page 2 of 9 ID Nos.509/96 (old) & 241/08 (new) termite treatment in Government Departments which was of very short duration ranging from 2 to 3 months? If so, its effect? 1B. Whether the work of the preconstruction anti termite treatment had been banned by CPWD & other Government Departments w.e.f. 10.09.99? If so, its effect?
1C. Whether the management has become dufunct after 10.09.99 and has surrendered its sales tax registration to the Sales Tax Department and the same has been allowed by the Sales Tax Department on 14.02.05? If so, its effect?
7. From the side of the workman, He himself examined as WW1 and also filed his affidavits Ext.WW1/A and Ext.WW1/A1 respectively on record in support of his contentions.
8. From the side of the management MW1, Sh. Vijay Kumar Dhawan was examined and he also filed his affidavit on record in support of the contentions of the management.
9. Oral final arguments were heard in this matter from both the sides. In my considered opinion, the same were the mere repetitions of averments of pleadings of both the sides on record.
10. In the interest of justice, a further opportunity was given to both the sides for filing written synopsis of final arguments and the same have been filed on behalf of both the sides. I have carefully perused the same and in my considered opinion, these written arguments are again the mere repetitions of averments of pleadings of both the parties on record.
11. Certain authorities have also been filed on record on behalf Page 3 of 9 ID Nos.509/96 (old) & 241/08 (new) of the management. I have carefully perused the same. With due respect, there cannot be any dispute as regards the law laid down by the Hon'ble Courts in these authorities. However, with due respect, I am further of the considered view that none of these authorities squarely covers the instant case because the facts and circumstances of this case are quite different from the facts and circumstance of the cited decisions.
12. I perused the entire judicial file minutely and my issue wise decision is as under.
ISSUE Nos. 1A to 1C framed on 26.07.06:
13. I have taken up all these issues together as to my considered view all are interconnected with each other and can be decided by the same reasoning. Further, I have taken up these issues first before deciding issue no.1 framed on 12.08.98 which was "As per terms of reference" because that issue will depend mainly on the decision of issue nos.1A to 1C as mentioned above.
14. In this regard, I refer to the evidence of management first. MW1 Sh. V.K. Dhawan deposed on behalf of the management mainly to the effect that he was doing the business of pesticides since 198889; that he was working with CPWD as a contractor and was working in and around Delhi; that he was having one or two labours since the beginning of his business and the labour used to be on contract basis from work to work; that Sh. Dinesh was working as Page 4 of 9 ID Nos.509/96 (old) & 241/08 (new) subcontractor; that the claimant used to work as Spray Operator being spray contractor; that there was no written contract with the claimant as a subcontractor and that it was verbal contract; that M/s. Dhawan Pesticides was registered with CPWD as a contractor for the job of anti termite treatment only and the license for the job was issued by the Central Government for use of chemicals only; that he stopped working for last 56 years; that he had placed on record copy of banning of anti termite treatment work by the Government of India. This witness has also deposed in his affidavit Ext.MW1/A on record to the effect that he was the Proprietor of M/s. Dhawan Pesticides; that his firm, i.e., M/s. Dhawan Pesticides was registered with CPWD as a contractor and work of his firm was seasonal and was purely dependent upon the tenders received from Government agencies from time to time; that the work of his firm was of anti termite treatment at preconstruction stage of Government buildings constructed by CPWD; that the work of anti termite treatment at pre construction stage used to be awarded from 10 days to 3 months only depending upon the quantum of work; that Sh. Dinesh was not in his employment since 1985; that he used to give job to Sh. Dinesh for a short duration ranging from 10 days to 2 months; that in the year 1999, CPWD decided not to continue anti termite chemical treatment at preconstruction stage because it was felt by CPWD that considering the efficacy of such treatment, its limited effective life, Page 5 of 9 ID Nos.509/96 (old) & 241/08 (new) practical difficulties in ensuring use of proper quality and quantity of the chemicals, it was proper to do away with such practice; that his firm did not receive any tender and as such there was no work with the firm and no services of subcontractors were required after 1999 as no work was available thereafter and the firm was closed; that the management also surrendered sales tax number which was Ext.MW1/4 on record; that there was no relationship of employer and employee between the workman herein and the management and workman Dinesh had not worked with the management for a period of 240 days in a calender year nor in a year immediately preceding his alleged date of termination.
15. In this regard, evidence of workman as WW1 is also to be taken into consideration. He admitted in his cross examination that he joined the present management in 1976 as an Operator and he was a chemical sprayer; that he was not having any experience as an operator; that he demanded verbally, the funds, bonus etc. from the management in July 1995 and he demanded wages for two months in July 1995; that it was correct that the work of the management was of anti termite treatment; that it was correct that anti termite treatment was given at the preconstruction stage; that he did not know if CPWD had stopped taking anti termite treatment at preconstruction stage. He denied the suggestion that M/s. Dhawan Pesticides had not renewed its license for anti termite treatment after the ban of CPWD Page 6 of 9 ID Nos.509/96 (old) & 241/08 (new) of anti termite treatment at preconstruction stage and he also denied the suggestion that the management was not working uninterruptedly but he did not add anything further as to on what basis he denied these suggestions.
16. On the basis of above mentioned discussion, coupled with other entire as well as documentary evidence on record, I am of the considered view that the management herein was engaged in the business of contractorship of supplying and applying pesticides for preconstruction anti termite treatment in Government Departments which was of very short duration ranging from 2 to 3 months. Its effect is that the workman herein cannot claim his continuous service with the management which itself worked for very short duration ranging from 2 to 3 months. I am further of the considered opinion that the work of preconstruction termite treatment had been banned by CPWD and other Government Departments w.e.f. 10.09.99 because there is evidence of MW1 to this effect, coupled with documentary evidence on record, and to my considered view there is no substantial rebuttal of that evidence from the side of the workman. Its effect is that the workman herein cannot claim anything from the management which stood closed and which became defunct after 10.09.99. There is also oral as well as documentary evidence on record filed by the management to the effect that its sales tax registration was also surrendered to the Sales Tax Department and the Page 7 of 9 ID Nos.509/96 (old) & 241/08 (new) same was allowed by the Sales Tax Department on 14.02.05 and I am again of the considered view that there is no substantial rebuttal of this piece of evidence of the management from the side of workman. Hence, the workman cannot claim anything from the management which became defunct at a particular period of time as mentioned above. Accordingly, all these issues are decided against the workman and in favour of the management.
Issue No.1 framed on 12.08.98
17. The workman herein claimed to have worked regularly with the management for last 19 years at the post of Operator drawing monthly wages of Rs.2000 till his services were allegedly terminated by management on 10.09.95 without any justified reasons. These submissions have been strongly denied by the management.
18. In view of these rival submissions, the primary burden of proving continuous service per year for 240 days or for the year immediately preceding the date of his termination was upon the workman.
19. In this regard, I find support from the Judgment of Hon'ble Supreme Court of India given in the case of R.M. Yellatti vs. Asstt. Executive Engineer 2005 IX AD (SC) 261. The Hon'ble Apex Court in this case held mainly to the effect that law is wellsettled that the burden of proof as to the completion of 240 days of continuous work in a year was upon the workman. It was held in this Judgment that Page 8 of 9 ID Nos.509/96 (old) & 241/08 (new) this burden can be discharged by the workman by his stepping in the witness box and adducing cogent evidence, both oral and documentary. It was also held that mere affidavits or selfserving statements made by the claimant/workman will not suffice in the matter of the burden placed by law on the workman to prove that he had worked for 240 days in a given year.
20. The workman has not filed any cogent evidence either oral or documentary, on record in order to satisfy this Court that he really worked continuously for 240 days with the management for last 19 years or for that matter he worked for 240 days continuously during the preceding 12 months from the date of his alleged termination, i.e., 10.09.95.
21. Hence, the workman has miserably failed to prove his continuous service with the management for the alleged period. It has also been established on record by the management that the management worked for very short durations ranging from 2 to 3 months and its activities were also banned by CPWD and other Government Departments w.e.f. 10.09.99. Hence, the workman cannot claim to be regularly employed with such an establishment continuously for 19 years as alleged in his statement of claim.
22. On the basis of above mentioned discussion, I am of the considered opinion that the workman had not worked regularly and continuously with the management for the alleged period and hence, Page 9 of 9 ID Nos.509/96 (old) & 241/08 (new) there is no question of termination of his services illegally and/or unjustifiably by the management. Accordingly, this issue is also decided against the workman and in favour of the management. RELIEF
23. On the basis of above mentioned discussion, the workman herein is not entitled to any relief and no directions are needed to be passed in this regard.
24. The Award is passed to the above effect and the reference is answered accordingly.
25. A copy of this Award be sent to the Secretary (Labour), Govt. of NCT of Delhi for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court (Dr. SHAHABUDDIN)
today on 07.03.2009 Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi
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