Delhi District Court
Vide Order No. ... vs S.T. Hadimani on 4 August, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
PRESIDING OFFICER : LABOUR COURT : XVII
KARKARDOOMA COURTS :DELHI
ID No.117/10/97
Unique ID No. 02402C00000431997
M/s. Sparko Guru Nanak Auto Industries,
3/20, Ramesh Nagar,
New Delhi15
............. Management
Versus
Its Workmen
1. Sh. Pawan Kumar
2. Sh. Shankar Prasad
3. Sh. Kalikant Prasad
C/o Rashtriya General Mazdoor Union,
B239, Karampura,
New Delhi15.
..............Workman
DATE OF INSTITUTION : 25.03.1997.
DATE ON WHICH AWARD RESERVED : 29.07.2015.
DATE ON WHICH AWARD PASSED : 04.08.2015.
A W A R D :
1. Vide Order No. F.24(6034)/96Lab./695256 dated
12.03.1997, issued by Government of NCT of Delhi, a reference was
ID No.117/10/97. 1/19
sent to this Court with the following terms:
"Whether the services of Sh. Pawan Kumar, Shankar
Prashad and Kalikant Prashad have been terminated
illegally and/or unjustifiably by the management and if
so, to what relief are they entitled and what directions
are necessary in this respect?"
2. Claimants' case is that they were working with the
management with following details:
S. No. Name Designation Last Wages Period of
Drawn Service
1. Pawan Kumar Mistri Rs. 2,900/ 12 years
2. Shankar Prasad Mistri Rs. 2,600/ 5 years
3. Kalikant Prasad Mistri Rs. 1,900/ 1 year
Statutory benefits such as attendance card, appointment
letter, attendance sheet and paid leaves etc. were not provided to them
for which they were urging since long. Their services were terminated
on 31.03.1996 and earned wages also withheld. The union sought
intervention of the labour inspector vide complaint dated 31.03.1996 but
in vain. A demand notice was sent to the management on 16.04.1996
which went unheard.
ID No.117/10/97. 2/19
3. Written statement is to the effect that only Sh. Pawan
Kumar was working with the management on a contract basis. He was
never employed by the management permanently. Moreover, he left the
job after settling the account fully and finally on 31.03.1996 and joined
the other manufacturing units in handsome salary. Claimants Sh.
Shankar Prasad and Sh. Kali Kant were not, at all, employed with it.
4. Following issues were framed on 06.10.2003:
(i) Whether Shankar Prasad and Kali Prasad worked with the
management as workers?
(ii) Whether Pawan Kumar voluntarily retired from the
management after setting his accounts?
(iii) To what relief workman is entitled?
5. In order to substantiate their case, claimants Sh. Pawan
Kumar, Sh. Shankar Prasad and Sh. Kali Kant tendered their affidavits in
evidence as Ex.WW1/A, Ex.WW2/A and Ex.WW3/A respectively. Their
evidence is identical one. Sh. Pawan Kumar WW1 deposed that he
worked with the management for 12 years of the last drawn salary of Rs.
ID No.117/10/97. 3/19
2,900/ per month. The management did not provide him the
appointment letter, attendance card and paid leaves etc. When the
management did not provide him those facilities despite demand, he
became member of a union due to which, management was annoyed and
hence it refused him employment orally on 31.03.1996. Through union,
he sent a complaint Ex.WW1/1 to labour inspector on 31.01.1996 for
reinstatement and earned wages. He further deposed that the
management did not appear in the office of labour inspector and that is
why, he issued the report Ex.WW1/2 dated 13.05.1996 that the
management was asked to appear on 16.04.1996 but it failed and so he
instructed him (WW1) to file a case before conciliation officer. A
demand notice Ex.WW1/3 was sent to the management on 16.04.1996 by
all three claimants but they were not reinstated.
WW2 Sh. Shankar Prasad deposed that he had worked with
the management as a mechanic for 5 years at the last drawn salary of Rs.
2,600/ per month. His services were terminated on 31.03.1996. WW3
Sh. Kali Kant deposed that he had worked with the management as a
mechanic for one year at the last drawn salary of Rs. 1,900/ per month.
His service was terminated on 31.03.1996.
Issue No. 1:
6. Specific defence has been taken in written statement that
ID No.117/10/97. 4/19
claimants Sh. Shankar Prasad and Sh. Kali Kant had not worked with the
management ever. MW1 Sh. Balbir Singh, proprietor of the
management, deposed that Sh. Shankar Prasad and Sh. Kali Kant were
never in his employment. In crossexamination, he deposed that only
89 employees used to work with the management which was a small
establishment and so the management was not maintaining the record.
Moreover, all the employees were on contract basis. On the other hand,
it has been deposed by WW2 & WW3 that they were working with the
management for five years and one year respectively.
7. Now it is the settled law of the land that onus of proof of
fact that the claimant had worked with the management and that he was
in the employment of the management for 240 days in the preceding year
is upon the claimant.
It was held in Range Forest Officer Vs. S.T. Hadimani,
2002I, LLJ, 1053 it was held 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 ID No.117/10/97. 5/19 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 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 aforestated 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, ID No.117/10/97. 6/19 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. 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 ID No.117/10/97. 7/19 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 receipt of salary or wages or any record or order in that regard was produced; no coworker 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 ID No.117/10/97. 8/19 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 non compliance 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 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."
ID No.117/10/97. 9/198. In the case in hand, WW2 deposed in crossexamination that he did not have any document to show that he was working with the management. WW3 claimed in crossexamination that he had proof of the fact that he had worked with the management. He did not place on record any document to that effect. He further deposed that he did not have any proof of having received wages from the management at any point of time. It has been deposed by MW1 Sh. Balbir Singh that Sh.
Shankar Prasad and Sh. Kali Kant were never employed with the management. There is only one document Ex.MW1/WA in the favour of claimant Sh. Shankar Prasad. That document is acknowledgment received by him when he sent money order from the address of the management. The acknowledgment is dated 31.01.1995. Money order receipt is not proof of employment. It merely proves that the money order was sent by a person, who had some connection with the address mentioned in the receipt. It has been admitted by WW2 Sh. Shankar Prasad in crossexamination that WW1 was his friend. It is very much possible that on that day, he would have visited WW1 and that is why, he would have sent money order from the address of WW1.
WW2 & WW3 did not move any application for a direction to the management to place on record documents of their employment.
There is no other document on the file which may justify their claim that ID No.117/10/97. 10/19 they had worked with the management for 240 days in the preceding year. So claimants Sh. Shankar Prasad and Sh. Kali Kant have failed to prove that they had worked with the management. This issue is decided in favour of management.
Issue No. 29. Management has admitted in written statement and in the evidence of MW1 that claimant Sh. Pawan Kumar was working with it as a contract labour but he left the services on his own accord for better prospective. At the time of leaving the job, he had executed the full and final receipt Ex.MW1/1. As he himself abandoned the job, claimant Sh.
Pawan Kumar is not entitled to any relief.
On the other hand, Ld. ARW argued that Sh. Pawan Kumar had never left the service and rather, his job was terminated on 31.03.1996. He further submitted that Ex.MW1/1 does not bear the signature of claimant.
10. Onus of proof of this issue is upon the management. In order to discharge the onus, it put a document mark A i.e. photostat copy of Ex.MW1/1 to WW1 in crossexamination and his answer is that it was ID No.117/10/97. 11/19 not bearing his signature. By that time, the original Ex.MW1/1 was not placed on record by the management. It was placed on file only in the evidence of MW1 Sh. Balbir singh. After placing on record the original, the management did not move any application for confronting Ex.MW1/1 to WW1 Sh. Pawan Kumar. The management did not move any application for comparison of signatures appearing on Ex.MW1/1 and affidavit in evidence Ex.WW1/A, by handwriting expert. Onus was upon the management to prove that Ex.MW1/1 was bearing the signature of Sh. Pawan Kumar but it had failed to discharge the onus. So this issue is decided against the management and in favour of claimant Sh. Pawan Kumar.
Issue No. 3:
11. Claimant's case is that he worked with the management for 12 years. The management admitted in written statement and evidence of MW1 that Sh. Pawan Kumar was working with the management. It did not specify the period for which he had worked with the management. It means that period of employment has been admitted by the management as 12 years.
ID No.117/10/97. 12/1912. It is settled law that even in case of illegal termination reinstatement is not automatic. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman"
13. In Municipal Council, Sujanpur Vs. Surinder Kumar ID No.117/10/97. 13/19 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically".
14. In Vinod Kumar & others vs Salwan Public School & others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief ID No.117/10/97. 14/19 by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case.
12. Further, the Supreme Court in the following judgments held as under:
(a) In the matter reported as Jaipur Development Authority v. Ramsahai, (2006) 11 SCC 684, the court has stated:
"However, even assuming that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would ID No.117/10/97. 15/19 not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal ID No.117/10/97. 16/19 Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement ID No.117/10/97. 17/19 with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
15. The claimant had worked with the management for 12 years. His services were terminated about 19 years ago. So reinstatement is not one of the proper relief.
WW1 Sh. Pawan Kumar admitted in crossexamination that after 31.03.1996 till date, he was doing some or the other work to feed himself and his family members. Taking into account all these facts, a consolidated lump sum compensation of Rs. 3,00,000/ (Rupees Three ID No.117/10/97. 18/19 Lacs Only) is granted to the claimant Sh. Pawan Kumar. The management is directed to pay the said amount to the workman Sh.
Pawan Kumar within a month from the date of publication of this award failing which it shall be liable to pay interest @ 12 per cent per annum from today till realization. Relief of reinstatement, back wages and consequential benefits are declined to him. Claimants Sh. Shankar and Sh. Kali Kant have failed to prove themselves as employees of the management. So, they are not entitled to any relief. Statement of claim is disposed of accordingly. Parties to bear their own costs.
16. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 04.08.2015. POLCXVII/KKD, DELHI.
ID No.117/10/97. 19/19