Delhi District Court
10. In Workmen Of Nilgiri Coop. ... vs . State Of on 19 August, 2008
1 ID NO. 413/06
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 413/06
BETWEEN
The Workmen
1. Sh. Bhuwal Sahani S/o Sh. Baizu Sahani
2. Sh. Mangal Sahani S/o Sh. Bhagwan Das
3. Sh. Shiv Pal Yadav S/o Sh. Chorri Lal &
4. Sh. Indal Sahani S/o Sh. Bhual Sahani
C/o General Dukan and Udyog Karamchari Union,
9468, Tokri Walan, Pul Mithai, Library Road,
Delhi - 110006.
AND
The Management of
M/s. Gupta Plastic Works,
A - 80/1, G.T. Karnal Road,
Azadpur, Delhi - 110033.
Date of institution of the case : 10.03.2005
Date of reserving the award : 04.08.2008
Date of announcement of award : 19.08.2008
AWARD
1. The National Capital Territory of Delhi through its Secretary (Labour)
vide reference no. F.24(2458)/04/Lab.3398-3402 dt. 10.02.2005 referred the
dispute for adjudication between the management of M/s Gupta Plastic Works
and its workmen Sh. Bhuwal Sahani S/o Sh. Baizu Sahani, Sh. Mangal Sahani
S/o Sh. Bhagwan Das, Sh. Shiv Pal Yadav S/o Sh. Chorri Lal & Sh. Indal
Sahani S/o Sh. Bhual Sahani in the following terms of reference:-
"Whether the services of Sh. Bhuwal Sahani S/o Sh.
Baizu Sahani, Sh. Mangal Sahani S/o Sh. Bhagwan
Das, Sh. Shiv Pal Yadav S/o Sh. Chorri Lal & Sh.
Contd.......
2 ID NO. 413/06
Indal Sahani S/o Sh. Bhual Sahani have been
terminated by the management illegally and/or
unjustifiably and if so, to what sum of money as
monetary relief alongwith consequential benefits in
terms of existing laws/Govt. 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 particulars furnished below:
Sr. Name of workman Service period Designation Average amount
(piece rate)
No.
Sh. Bhuwal Sahani Molding Rs.2800/-
1 1990 Machine Man
Sh. Mangal Sahani Molding Rs.2600/-
2 1990 Machine Man
Sh. Shiv Pal Yadav Molding Rs.2700/-
3 1990 Machine Man
Sh. Indal Sahani Molding Rs.2700/-
4 1992 Machine Man
The workmen were working sincerely and diligently to the satisfaction of
management and never gave any chance of complaint to the management.
The management was not providing the legal facilities i.e appointment letter,
attendance card, pay-slip, leaves, ESI, PF, bonus and overtime wages. At the
time of payment of wages the management used to obtain signatures of
workmen on blank papers, vouchers etc. The management had not raised the
Contd.......
3 ID NO. 413/06
wages of workmen for the last three years and the workmen were demanding
raise in wages and the management was assuring the workmen to increase
their wages. On 21.11.2002 the workmen made complaint to Labour
Authorities through Union in respect of not providing the legal facilities by the
management. After visit of the Labour Inspector the management obtained
signatures of workmen at three places of two blank registers. The
management used to make the payment of wages to workmen on Wednesday
which used to be weekly off. On 26.11.2003 the workmen told the
management to make the payment of wages at the higher rate. On 27.11.2003
at about 4:00 PM the workmen demanded payment of wages on which
management got annoyed and terminated the services of workmen without
issuing any notice or charge - sheet and without payment of any
compensation. On 27.11.2003, 15.12.2003 and 30.12.2003 workmen sent
notices of demand to the management but the management did not send any
reply to the same and the workmen were not reinstated. The workmen
presented claim before the Conciliation Officer but no settlement was arrived .
The workmen are unemployed since the date of termination of their services. It
is prayed that an award be passed thereby reinstating the workmen in service
with full back wages and continuity of service.
3. Notice of statement of claim was issued to the management and
management has filed W.S. and has contested the same. In the WS the
management has stated that the management is getting job work from other
managements and the workmen used to be paid at the rate of wages settled
Contd.......
4 ID NO. 413/06
from time to time and after the settlement of rate piece basis the workmen
used to be paid full amount on every Wednesday which was weekly holiday of
the factory. It is stated that the workmen have never worked for 240 days in a
year with the management and the claim is liable to be dismissed. It is stated
that the workmen were not the permanent employees of the management and
their claims are liable to be dismissed. It is denied that the workmen were
employed with the management as per particulars furnished by the workmen in
the statement of claim. It is stated that the workmen intentionally used to do
work in a wrong manner and used to destroy the pieces and thereby causing
wastage. It is stated that the management had employed less than 10
employees in its factory hence the workmen were not entitle to the statutory
facilities as stated. It is denied that the management refused to pay the weekly
payment on 26.11.2003. It is also denied that on 27.11.2003 the workmen
demanded wages and management got annoyed and terminated their
services. It is stated that the management has not terminated the services of
workmen but the workmen have left of their free will and consent. It is stated
that the workmen are not entitled to any relief.
4. The workmen have filed rejoinder to the written statement of
management. In the rejoinder, the workmen have reiterated the contents of
statement of claim and have controverted the allegations of the management
as stated in the written statement.
Contd.......
5 ID NO. 413/06
5. From the pleadings of parties following issues were framed on
27.04.2006:
(i) Whether there existed relationship of employer and employee between
the parties? OPW.
(ii)If the answer to issue no. 1 is in affirmative, whether the workmen
have worked continuously for a period of 240 days in preceding one
year with the management, if so, its effect? OPW.
(iii)As per terms of reference.
6. To prove their case workmen examined Sh. Bhuwal Sahani as WW1,
Sh. Mangal Sahani as WW2, Sh. Indal Sahani as WW3 and Sh. Shiv Pal
Singh as WW4 and WE was closed on 22.03.2007.
7. The management examined Sh. Deepak Gupta, Proprietor as MW1.
8. I have heard ARs for both the parties and carefully perused record. My
findings on the specific issues are as under:
ISSUE NO. 1
9. In the statement of claim the workmen have stated that they haven
employed with the management as Molding Machine Men and the
management was not providing the statutory facilities and they demanded
payment of wages at higher rate on which management got annoyed and
terminated their services illegally on 27.11.2003. In para 3 of PO of W.S. the
management has stated that there was no binding on the workmen to do the
work with the management and their wages were settled on piece rate basis
and they were not the permanent employees of the management. The
Contd.......
6 ID NO. 413/06
contention of AR for management is that the workmen were doing work for the
management on piece rate basis and they were not the permanent employees
of the management and all the workmen have admitted in their evidence that
they were working on piece rate basis and in the circumstances there existed
no relationship of employer and employee between the parties.
10. 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.
Contd.......
7 ID NO. 413/06
11. The plea of AR for management is that the workmen were working on
piece rate basis with the management and they were not the permanent
employees of the management. Hence, there existed no relationship of
employer and employee between the parties.
12. The same issue arose for consideration before the Hon'ble Apex Court
in its landmark pronouncement which is reported at (1973) 27 FLR 350 entitled
Silver Jubilee Tea House Vs. Chief Inspector of Shops. In this case, all
workers were paid by the appellant on piece rate basis. The workers generally
attended the shops everyday if there was work. The rate of the wages paid to
the workers was not uniform and depended on the skill of the worker and the
nature of the work. However, after th cloth was given for stitching , the worker
was told as to how he should stitch it. If he did not stitch, as per the
instruction, the employer rejected the work and the worker was generally
asked to re-stitch the same. If the worker did not want to go for work to the
shop on a day, he did not have to make any application nor was there any
obligation on his part to inform the employer that he would not attend work on
that date. If there was no work, the employee was free to leave the shop
before it closed. With the permission of the proprietor, the workman could
even take the stitching home to stitch.
13. After a close examination of these facts, the Apex Court observed that
the right to control the manner of work is not the exclusive test to determine
the relationship of the management and its employees. It was observed that
even if the workers of the Silver Jubilee Tea House were not obliged to work
for the whole day in the premises of the management, it was not very material.
Contd.......
8 ID NO. 413/06
14. The Hon'ble Supreme Court in the Silver Jubilee Tea House case
cited with approval its earlier decision in 1957 SCR 152 entitled
Dharangadhra Chemical Works Ltd. Vs. State of Saurastra wherein it was
held thus:-
"The question for decision was whether the agarias
were workmen as defined by S.2(s) of the Industrial
Disputes Act, 1947 or whether they were
independent contractors. The Court said that the
prima facie test to determine whether there was
relationship between employer and employee is the
existence of the right in the master to supervise and
control the work done by the servant not only in the
matter of directing what work the employee is to do
but also the manner in which he had to do the work.
In the words, the proper test according to this Court
is, whether or not the master has the right to control
the manner of execution of the work. The Court
further said that the nature of extent of the control
might vary from business to business and is by its
nature incapable of precise definition that is not
necessary for holding that a period is an employee
that the employer should be proved to have
exercised control over his work, that even the test
of control over the manner of work is not one of
universal application and that there are many
contracts in which the master could not control the
manner in which the work was done."
15. The court after considering the several judicial pronouncements on the
subject further observed:-
" It is exceedingly doubtful today whether the
search for a formula in the nature of a single test to
tell a contract of service from a contract for service
will serve any useful purpose. The most that
profitable can be done is to examine all the factors
that have been referred to in the cases on the topic.
Clearly, not all of these factors would be relevant in
all these cases or have the same weight in all
cases. It is equally clear that no magic formula can
Contd.......
9 ID NO. 413/06
be propounded which factors should in any
cases be treated as determining ones. The plain
fact is that in a large number of cases, the court
can only perform a balancing operation weighing up
the factors which point in one direction and
balancing them against those pointing in the
opposite direction."
16. While considering the facts of the case as noticed above with regard to
the Silver Jubilee Tea House, the court held thus :-
"That some of the employees take up the work from
other tailoring establishments and do that work also
in the shop in which they generally attend for work,
as spoken to by the proprietor in his evidence,
would not in any way militate against their being
employees of the proprietor of the shop where they
attend for work. A person can be a servant of more
than one employer. A servant need not be under
the exclusive control of one master. He can be
employed under more than one employer.
That the workers are not obliged to work for
the whole day in the shop is not very material. There
is of course no reason why a person who is only
employed part time, should not be a servant and it is
doubtful whether regular part time service can be
considered even prima facie to suggest anything
other than a contract of service. According to the
definition in S.2 (14) of the Act, even if a person is
not wholly employed, if he is principally employed in
connection with the business of the shop, he will be
a " person employed" within the meaning of sub-
section. Therefore, even if he accepts some work
from other tailoring establishments or does not work
whole time in particular establishment, that would
not in any way derogate from his being employed in
the shop where he is principally employed.
We think that on the facts and circumstances
of the case the Chief Inspector of Shops and
Establishments and the High Court came to the right
conclusion that employer and employee relationship
existed between the parties and that the Act was
therefore applicable. We therefore dismiss the
appeal, but in the circumstances, we do not make
any order as to costs."
Contd.......
10 ID NO. 413/06
17. Sh. Bhuwal Sahani, Sh. Mangal Sahani, Sh. Indal Sahani and Sh. Shiv
Pal appeared in the witness box as WW1, WW2, WW3 and WW4 respectively.
In the cross - examination all the workmen i.e WW1 to WW4 admitted that
they were being paid on piece rate basis by the management. Apart from
giving suggestion only to the effect that the workmen were working on piece
rate basis, the management has not given any other suggestion to workmen in
their cross - examination to the effect that the management had no control on
the work being executed by the workmen and that their attendance was not
being marked by the management and the workmen were free to come and to
go at the day and time of their choice and the management was not exercising
any control on the work executed by the workmen and the workmen even had
liberty of taking the work to any other place of their choice and to execute the
same. On the contrary MW1 stated in the cross - examination that the
workmen were staying in the premises of the management while they were in
the employment of the management. Firstly, MW1 stated in the cross -
examination that the management had not issued any letter of appointment to
the workmen and thereafter he again said in the cross - examination that may
be management has issued appointment letters to the workmen. By stating so
the management has admitted that there existed relationship of employer and
employee between the parties because unless there was relationship of
employer and employee between the parties there was no question of
issuance of appointment letter by the management to the workmen. In the
cross - examination of WW3 Sh. Indal Sahani, the management has given
suggestion to the effect that he was issued ESI Card, which proves that there
Contd.......
11 ID NO. 413/06
existed relationship of employer and employee between the parties hence, on
that account ESI Card was issued to WW3 while he was in the employment of
management. The management adduced evidence by way of affidavit Ex.
MW1/A. In para 3 of the affidavit Ex. MW1/A the management has stated that
the management had provided all facilities to the workmen including weekly off
and in para 4 of the affidavit Ex. MW1/A the management has stated that the
workmen were covered under the ESI Act and the management had made
contribution towards ESI on account and the contribution was not deducted for
the purpose of welfare of the workmen. The plea of the management as stated
in paras 3 and 4 of affidavit Ex. MW1/A proves existence of relationship of
employer and employee between the parties as on account of existence of
relationship of employer and employee between the parties the management
was providing statutory facilities to the workmen. This issue is accordingly
decided in favour of the workmen and against the management.
ISSUE NO. 2
18. In the statement of claim the workmen Sh. Bhuwal Sahani, Sh. Mangal
Sahani, Sh. Shiv Pal have stated that they have been employed with the
management since the year 1990 and the workman Sh. Indal Sahani has
stated that he has been employed with the management since the year 1992
and the management was not providing statutory facilities to them and they
were demanding the same from the management on which management got
annoyed and terminated their services on 27.11.2003. In the W.S. the
management has denied that the workmen have been employed with the
management for the periods as stated in the statement of claim.
Contd.......
12 ID NO. 413/06
19. The plea of AR for management is that it is for the workman to prove
that there existed relationship of employer and employee between the parties
and that the workman has worked continuously for 240 days in a year with the
management.
20. 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 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.
21. 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.
Contd.......
13 ID NO. 413/06
22. 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.
23. Hence, as per aforesaid decisions it is for the workman to prove that he has been employed with the management for the period as alleged and that his services were illegally terminated by the management.
24. Although, in the W.S. the management has denied that the workmen have been employed with the management for the periods as stated in the statement of claim, but in the W.S. the management has not stated that since when the workmen have been employed with the management. Workmen Sh. Bhuwal Sahani, Sh. Mangal Sahani, Sh. Shiv Pal have specifically stated in the statement of claim that they have been employed with the management since the year 1990 and the workman Sh. Indal Sahani has stated that he has been employed with the management since the year 1992. In para 2 of the affidavit Ex. MW1/A the management has stated that the management used to engage the workmen for job work on piece rate basis in the year 1999, 2000 and 2001 as and when the firm received the job work. In the affidavit Ex.
Contd.......
14 ID NO. 413/06MW1/A also the management has not stated that since when the workmen have been employed with the management. The contention of AR for management is that the management came into existence in the year 1994 and there is no question of employment of workmen before the year 1994. In order to prove that the management came into existence in the year 1994, the management has relied on Lease Deed dt. 01.05.1994 Ex. MW1/1. The contention of AR for workman is that by the Lease Deed Ex. MW1/1 on which the management is relying the lessor has created a lease of 30 months but the same is not registered as required by law and it is a fabricated document. The management has relied on copy of the Lease Deed dt. 01.05.1994 Ex. MW1/1 and the said Lease Deed purportedly creates a lease of 30 months @ rent of Rs.1000/- per month and as per Section 17 of The Registration Act, 1908 the same is required to be registered compulsorily. But Lease Deed dt. 01.05.1994 Ex. MW1/1 has been prepared on a two rupees stamp paper and it is neither registered nor attested by any Authority. The Lease Deed dt. 01.05.1994 Ex. MW1/1 also does not prove that prior to 01.05.1994 the management was not in possession of the said premises and it does not contain any recital to the effect that the management came into possession of the premises in question only after 01.05.1994. The management has not examined the landlord/Lessor of premises in order to prove that the Lease Deed dt. 01.05.1994 Ex. MW1/1 is signed by him and the management was not in possession of the leased premises prior to 01.05.1994 and that the said lessor had the authority to create lease of the premises in question in favour of Contd.......
15 ID NO. 413/06the management. Lease Deed dt. 01.05.1994 Ex. MW1/1 does not prove the case of the management that the management came into existence in the year 1994. Another contention of AR for workmen is that MW1 stated in the cross - examination that in the year 1990 he was in service in Cycle Market and he has not produced any record to this effect in order to prove that the management was not in existence in the year 1990. It is to be noted that although in its evidence the management has tried to setup a case by filing Lease Deed dt. 01.05.1994 Ex. MW1/1 on record in order to prove that the management came into existence in the year 1994, but no such plea has been taken by the management that the management came into existence in the year 1994 in its Written Statement. Hence, the management has adduced evidence regarding coming of it into existence in the year 1994 on the fact which is not pleaded by the management in the W.S. and the management has adduced evidence to this effect which is beyond pleadings.
25. Workmen Sh. Bhuwal Sahani, Sh. Mangal Sahani, Sh. Indal Sahani and Sh. Shiv Pal appeared in the witness box as WW1, WW2, WW3 and WW4 respectively and they adduced evidence by way of affidavits Ex. WW1/A, Ex. WW2/A, Ex. WW3/A and Ex. WW4/A. In order to prove their employment with the management, the workmen have relied on notices dt. 27.11.2003, 15.12.2003, 30.12.2003 and copy of the claim filed before the Conciliation Officer. The documents filed on record by the workmen do not prove the date of appointments of workmen with the management. The management has simply rebutted the claim of the workmen regarding their periods of employment with the management. But the management has not specifically Contd.......
16 ID NO. 413/06stated as to since when the workmen were in the employment of management as per the records maintained by management. In the cross - examinations of all the workmen i.e Sh. Bhuwal Sahani/WW1, Sh. Mangal Sahani/WW2, Sh. Indal Sahani/WW3 and Sh. Shiv Pal/WW4 the management has given suggestion to the effect that the management was making payment on piece rate basis. A suggestion was given by the management in the cross - examination of workman Sh. Indal Sahani/WW3 to the effect that the management had provided ESI facility to him. Hence, the workmen have established a prima facie case of their employment under the management and in the circumstances, onus shifted on the management to rebut the claim of the workmen by producing its record that the workmen were not in the employment of management for the periods, as alleged.
26. In the case of Bank of Baroda vs. Ghemarabhai Harjibhai Rabari, 2005 LLR 443 the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case it would be the responsibility of the Management to rebut the same.
27. Although, it is for the workmen to prove that there existed relationship of employer and employee between the parties and that they have worked continuously for 240 days in preceding one year prior to termination of their Contd.......
17 ID NO. 413/06services but if the management does not issue any documents to the workmen relating to his employment in that case it was held in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. 2006 LLR 851 that:
14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
28. In Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi, 2006 LLR 1080, Hon'ble Supreme Court held
10. In R.M. Yellatti v. The Asst. Executive Engineer, JT 2005 (9) SC 340: 2006 LLR 85 (SC), the decisions referred to above were noted and it was held as follows:
"Analyzing 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 Disputes Act. However, applying general principles and on reading the aforestated judgments, Contd.......18 ID NO. 413/06
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 workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage 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 statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be- the ground for the tribunal to draw an adverse inference against the management."
29. As per decisions in Automobile Association of Upper India vs. P.O. Labour Court II & Anr. (Supra) and Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi (Supra) it is for the workman to call upon the management to produce the relevant record in order to prove that he has been employed with the management for the period as alleged.
Contd.......
19 ID NO. 413/06
30. The workmen have raised the plea that the management had not issued letter of appointment and the management was also not issuing pay-slip and the management was also maintaining the attendance register and the management was not issuing any such document which could be produced in the form of evidence by the workmen. The management examined Sh. Deepak Gupta as MW1. MW1 stated in the cross - examination that the management had not issued any letter of appointment to the workmen. But thereafter he again said that may be management has issued appointment letters to the workmen. But the management has not filed any copy of the appointment letter on record which was issued to any of the workers. In the cross - examinations of workmen i.e Sh. Bhuwal Sahani/WW1, Sh. Mangal Sahani/WW2, Sh. Indal Sahani/WW3 and Sh. Shiv Pal/WW4 also no suggestions have been given to the effect that the management had issued them letters of appointment. The management has failed to prove that any letter of appointment as provided by Section 34 of The Delhi Shops and Establishments Act, 1954 was issued to the workmen. In para 4 of affidavit Ex. MW1/A the management has stated that the workmen were covered under the ESI Act and the management was making contribution towards ESI of all the workmen. MW1 stated in the cross - examination that the management is providing ESI facility to its workers since November 1994. Workman/WW3 Sh. Indal Sahani stated in the cross - examination that he was issued ESI Card and the workman/WW4 Sh. Shiv Pal denied in the cross - examination that he Contd.......
20 ID NO. 413/06was issued ESI Card. No suggestions have been given to workman/WW1 Sh. Bhuwal Sahani and workman/WW2 Sh. Mangal Sahani in the cross - examination that ESI Cards were issued to them while they were in the employment of management. In the affidavit Ex. MW1/A the management has stated that it was providing ESI facility to its workers and MW1 stated in the cross - examination that the workmen were being provided ESI facility since November 1994. But the management has not produced any records maintained by it in order to prove that ESI facility was provided to workmen in the present case and if the same was provided, it was provided on which dates and the management has also not filed on record the return of contribution filed by the management with ESI Corporation in order to prove that ESI facility was being provided to the workmen. If the management was providing ESI facility to the workmen then it was open for the management to have summoned the declaration forms submitted by the workmen in the ESI Corporation in order to prove the dates of appointment of appointment of workmen with the management as the same would have contained the dates of appointment of workmen with the management. In para 3 of the affidavit Ex. MW1/A the management has stated that they had provided all facilities to the workmen including the weekly off. However, the management has not produced any records of other facilities which were allegedly provided to the workers in order to prove that the workmen have not worked with the management continuously for 240 days in a year. The management has relied on registers of employment and remuneration Ex. MW1/W1 to Ex. MW1/W3. It Contd.......
21 ID NO. 413/06is to be noted that the registers of employment and remuneration filed by the management are only from the year 2002 to 2004. The management has not produced any registers maintained by the management prior to 2002 in order to rebut the claim of the workmen regarding their periods of employment with the management. Moreover, the workmen were not confronted with the registers of employment and remuneration in their cross - examinations in order to prove that the same bear the thumb impressions/signatures of workmen. It is to be noted that the registers of employment and remuneration Ex. MW1/W1 to Ex. MW1/W3 do not bear any date in the column of date of appointment of any of the workers whose names are mentioned in the said registers. The management has failed to prove that the management was maintaining muster roll of the workmen as provided by Section 25D of the I.D. Act, 1947 wherein the workmen were making entries when they presented themselves for work. The management has failed to rebut the claim of the workmen regarding their employment for the periods as alleged by the workmen. All the workmen have succeeded in proving that they have worked continuously for 240 days in preceding one year with the management. This issue is accordingly decided in favour of the workmen and against the management.
ISSUE NO. 3
31. In the statement of claim the workmen have stated that on 26.11.2003 workmen requested the management to make payment of wages at increased rates on which management got annoyed and terminated their services on 27.11.2003. In para 4 of reply on merits in the W.S. the management has Contd.......
22 ID NO. 413/06pleaded that the management has not terminated the services of workmen, but the workmen have left their job of their free will and consent. In para 5 of the statement of claim the workmen have stated that they sent notices dt. 27.11.2003, 15.12.2003 and 30.12.2003 to the management but the management did not send any reply to the same. Notice dt. 27.11.2003 is Ex. WW1/1, postal receipt is Ex. WW1/2, UPC receipt is Ex. WW1/3 and AD card in respect of the same is Ex. WW1/4. The notice dt. 15.12.2003 is Ex. WW1/5, postal receipt is Ex. WW1/6 and AD card in respect of the same is Ex. WW1/7. Notice dt. 30.12.2003 is Ex. WW1/8, postal receipt is Ex. WW1/9, UPC receipt is Ex. WW1/10 and AD card in respect of the same is Ex. WW1/11. MW1 stated in the cross - examination that he had received notice dt. 27.11.2003 from the workmen. Thereafter he again stated that he has received one notice from the workmen but he cannot tell the date of the same. MW1 further stated in the cross - examination that he cannot say whether the notices dt. 25.12.2003 and 30.12.2003 were received from the workmen or not. MW1 stated in the cross - examination that AD card Ex. WW1/11 in respect of the notice dt. 30.12.2003 Ex. MW1/8 is signed by Sh. Kishan Dev, Employee of management. MW1 stated in the cross - examination that the management has not sent reply to the notice which was received from the workmen. The management has not explained that if the workmen had left the employment of their own and the management has not terminated their services then why no reply was sent by the management to the notice of workmen which was admittedly received by the management (as stated by MW1 in the cross -
Contd.......
23 ID NO. 413/06examination) thereby rebutting the allegation of workmen regarding illegal termination of their services. MW1 stated in the cross - examination that the management has not sent any notice to workmen thereby directing them to join the duties. The management has not explained that if the workmen had unauthorizedly absented from the duties of the management then why no notice was sent by the management to the workmen thereby directing them to report for duties. MW1 further stated in the cross - examination that the management has not issued any charge - sheet to the workmen and no enquiry has been conducted by the management against the workmen. It is to be noted that the management has pleaded that the workmen had voluntarily left the services of management however, the management has not proved that the workmen had tendered any resignation or the workmen had made any request to the management for giving full and final settlement amount. If the workmen had voluntarily left the services of management then it was open for the management to have sent suitable reply to the notice of workmen which was received by the management thereby stating that the workmen have voluntarily absented from the duties and they could have been directed to report for duties. The management has not explained that why no reply was sent to the notice of workmen or why no notice was sent to the workmen thereby directing them to report for duties. The evidence adduced by record proves that the management had terminated the services of workmen on 27.11.2003 and the management has made a lame excuse that the workmen voluntarily left the services of management.
Contd.......
24 ID NO. 413/06
32. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
33. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
Contd.......
25 ID NO. 413/06
34. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005- LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
35. Section 2(oo) of the Industrial Disputes Act 1947 reads as under:
"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.
36. Section 25F of the Industrial Disputes Act 1947 provides that:
Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
Contd.......26 ID NO. 413/06
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
37. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workmen Sh. Bhuwal Sahani, Sh. Mangal Sahani, Sh. Indal Sahani and Sh. Shiv Pal have been terminated illegally by the management.
38. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workmen Sh. Bhuwal Sahani, Sh. Mangal Sahani, Sh. Indal Sahani and Sh. Shiv Pal.
39. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-LLR-275 it was held that "for entitlement of back wages on reinstatement Contd.......
27 ID NO. 413/06of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
40. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
41. In J. K. Synthetics Ltd. vs. K. P. Agrawal & Anr., 2007 LLR 358 it was held that:
17. There is also a misconception that wherever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct Contd.....28 ID NO. 413/06
reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed we may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud, 2003 (2) SCC 212: 2003 LLR 225 (SC);
A.P.S.R.T.C. v. Abdul Kareem, 2005 LLR 943: 2005 (6) SCC 36 and R.S.R.T.C. v. Shyam Bihari Lal Gupta, 2005 (7) SCC 406: 2005 LLR 1196 (SC).
18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case............
42. Workmen Sh. Bhuwal Sahani, Sh. Mangal Sahani, Sh. Indal Sahani and Sh. Shiv Pal appeared in the witness box as WW1, WW2, WW3 and WW4 respectively and they adduced evidence by way of affidavits Ex. WW1/A, Ex. WW2/A, Ex. WW3/A and Ex. WW4/A. In the affidavits Ex. WW1/A to Ex. WW4/A the workmen have stated that they are unemployed since the date of termination of their services. No suggestions have been given to workman/WW1 Sh. Bhuwal Sahani in the cross - examination that he has been gainfully employed after termination of his services from the Contd.....
29 ID NO. 413/06management. The workman/WW2 Sh. Mangal Sahani stated in the cross - examination that at times he lives in Delhi and at times he lives in his native place at Distt. Sant Kabir Nagar, U.P. and when he comes to Delhi he looks for work for few days and thereafter he voluntarily stated that he stands on the Rehri if some vendors go his native village and earns some livelihood for him and he earns about Rs.50/- to Rs.100/- on that day. The workman/WW3 Sh. Indal Sahani stated in the cross - examination that at present he is residing in his native village and his approximate house-hold expenses are Rs.2000/- to Rs.2500/- per month and he is able to meet the same by getting money from land given on Batai basis and with the assistance of his mother. The workman/WW4 Sh. Shiv Pal stated in the cross - examination that after 26.11.2003 he had searched for alternate job for two days, but he could not succeed and he further stated that his brothers are supporting him in making a living.
43. In North East Karnataka Road Transport Corporation v. M. Nagangouda, 2007 LLR 340, it was held that gainful employment of a workman during interregnum will also include either self-employment or earning some amount from agricultural pursuits to maintain himself.
44. Although all the workmen have pleaded that they were unemployed since the date of termination of their services from the management however, the workmen have not proved that if they are unemployed since the date of termination of their services, then what efforts were made by them to secure alternate job after disengagement from the management. The workmen have not proved that after disengagement from the management they had applied Contd.......
30 ID NO. 413/06to other managements for job and they could not succeed in getting alternate employment. The workmen have also not submitted the details of any other managements to which they had submitted applications or appeared for interview for job after disengagement from the management. The management has also not succeeded in proving that the workmen have been employed in any other establishments after disengagement from the management. The management had put question to WW1 and WW2 in the cross - examination to the effect that whether they want to work with the management on piece rate basis to which to which they replied in affirmative. In the circumstances, all the workmen shall be entitled to reinstatement in service with back wages @ 50% of average piece rate basis paid to the workmen for the month of October 2003, from the date of termination of their services i.e 27.11.2003. All the workmen shall also be entitled to a sum of Rs.5000/- (Rupees Five Thousand Only) each on account of cost of these proceedings under Section 11(7) of The Industrial Disputes Act, 1947. 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 19.08.2008.
(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS DELHI 31 ID NO. 413/06 19.08.2008 Pr. Workmen Sh. Mangal Sahani and Sh. Shiv Pal Singh in person. None for management.
Award dictated and announced separately.
Copies of award be sent to appropriate Govt. for publication in accordance with law. File be consigned to record room.
POLC/19.08.2008