Delhi District Court
Sh. Nafe Singh vs . M/S. All India Institute Of Medical ... on 3 October, 2012
Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0427702004
F.24 (466)/96-Lab./ 15637 - 42 dated
Reference No.
17.02.1996.
Type of Case Reference Case.
Date of Institution 23.02.1996
Evidence concluded on 13.05.2011
Arguments heard on 05.09.2012
Date of Award 03.10.2012
WORKMAN Vs. MANAGEMENT
Sh. Nafe Singh S/o Sh. Mauji Ram, M/s. All India Institute Of Medical
C/o Hospital Employees Union, Science, Ansari Nagar, New Delhi
Aggarwal Bhawan, G. T. Road, Tis - 2.
Hazari, Delhi - 110054.
PRESENT:
None for the parties.
AWARD :-
1. The appropriate Government sent a reference no. F.24 (466)/96Lab./ 15637 - 42
dated 17.02.1996. to this court in relation to the illegal termination of the services
of the claimant /workman Sh. Nafe Singh by the Managements M/s. All India
Institute of Medical Science. The reference specifically pointed out as
follows :
"Whether the termination of services of Sh.
Nafe Singh were illegal and / or unjustified and
AWARD Page 1 of 20
Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04
if so, to what relief was he entitled and what
directions were necessary in this regard?"
2. As per claim the workman Nafe Singh claimed to have been working with the
Management AIIMS as a 'Nursing Orderly' since 03.05.1993. He alleged to have
been treaded by the Management AIIMS as a daily rated / casual / muster roll
worker. He claimed to have been receiving the minimum wages as applicable under
the Minimum Wages Act. He alleged that his other coworkers were get salaries in
the pay scale of Rs.775 - 1024 along with uniform, E.L., C.L., applicable holidays
and medical leaves etc. Thereafter the workman Nafe Singh pleaded that being
treated as a regular employee and was being paid salaries in the pay scale of Rs.775
- 1024 with usual allowances admissible under the Rules. He was also given other
benefits like uniform, E.L., C.L., applicable holidays and medical leaves etc. It
was alleged by the workman that on 01.01.1994 his services were terminated
without assigning any reason. Thereafter he resorted to raise an industrial dispute
and the same was finally sent to this court for adjudication.
3. A written statement was filed on behalf of the Management AIIMS under the seal
and signatures of its Director. Preliminary objections were taken that this claimant
was not a workman and that the Management was not an industry within the
meaning of the provisions of the Industrial Disputes Act. It was also pleaded that
the claimant was a daily wager and hence hisclaim was barred U/S 2 (oo) (bb) of
the Industrial Disputes Act. The reference by the appropriate Government was also
alleged to be bad in law. On merits the workman was admitted as a daily wager
working with the Management AIIMS 03.05.1993 and kept doing so till 01.01.1994
when he was not given any further extension. At one place in para 3 (vi) it was
contended that the workman had not completed 240 days of his employment with
the Management AIIMS.
4. In these backgrounds of the pleadings of the parties, the ld. Predecessor vide its
orders dated 11.02.2002 framed the following issues :
1. Whether the applicant does not fall in definition of
workman and Management is not an industry?
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Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04
2. Whether case of workman is covered U/S 2 (oo) (bb) of the
Industrial Disputes Act?
3. Terms of reference.
5. Thereafter on 17.09.2008 an additional issue was also framed by the other ld.
Predecessor vide his orders dated 17.09.2008 which is as follows :
1. Whether the present reference is bad as the same has not been
referred by the appropriate Government?
6. For the purpose of the present adjudication this court using its powers U/S 11 of the
Industrial Disputes Act r/w Order XIV Rule 5 C.P.C. restructures and reframes the
issues as follows :
1. Whether the present reference is bad as not being referred to by
the appropriate Government? OPM.
2. Whether the Management is an industry or not under the
Industrial Disputes Act, 1947? OPM.
3. As per terms of reference.
4. Relief, if any.
This court has merged the aspects of the present claimant being a workman under
the Industrial Disputes Act and the present suit being barred U/S 2 (oo) (bb) of the
Industrial Disputes Act in the main issue no. 3 and will be decided as a term of the
reference sent to this court.
7. Thereafter the workman Nafe Singh examined him as WW1 in support of his claim.
He filed his evidence affidavit as WW1/A dated 16.12.1999. He was
cross -examined by the ld. counsel for the Management. During the
cross - examination he admitted as to have been employed by the
Management as a daily wager. He admitted to have been paid on the
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Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04
basis of actual number of working days but stated that such payment was made
on monthly basis. He also stated that his wages were never deducted on account of
holidays etc. He further admitted not to have appeared in any test for the purpose
of his selection, however, he was interviewed for this job. He denied the
suggestion that in December, 1993 he was called for interview for his extension in
service. However, ld. counsel for the Management confronted him that this fact of
being called for interview in December, 1993 was admitted in rejoinder. He stated
that the wages paid to him were in accordance with the Government Regulations.
He admitted not to have sent any letter to the Management prior to 09.11.1994 and
he further admitted not to have made any efforts to get a job after the alleged
termination dated 01.01.1994. He has relied upon some documents. Mark A is a
photocopy of an attendance register. Ex. WW1/1 is a legal demand notice sent by a
labour union on behalf of this workman. It is dated 09.11.1994. Ex. WW1/2 and
Ex. WW1/3 are the photocopies of its postal receipts. Ex. WW1/4 is a claim filed
before the Conciliation Officer.
8. Thereafter the Management AIIMS examined one Sh. Arvind Gajbhiye a Sanitation
Officer as MW1. His affidavit Ex. MW1/A is more on a collection of law and
arguments than being on the facts of a case. In his affidavit this witness did not
speak even a single word on the appointment of the workman; the manner of
appointment; his service period and the manner of termination of the services of
the workman. The entire 'evidence affidavit'! contains only that the AIIMS is a
statutory body; that the AIIMS is an institute of natitonal importance; that the claim
was barred as per Section 2 (oo) (bb) of the Industrial Disputes Act and similar
other aspects. However, during the course of examination a few facts could
emerge. He admitted that the workman was employed by the Management on
03.05.1993 as a "Nursing Orderly". He stated that the workman was engaged for 3
months initially, but subsequently his tenure was extended for further 3 months with
a gap of one day between two consecutive terms of extension.
9. In this case the Management is the AIIMS. The claimant / workman
impleaded the respondent / Management as the AIIMS. As per Section
3 (2) of the AIIMS Act, 1956 it is a body corporate. It can sue or be sued in that name and capacity. Section 10 of theAct gives it a AWARD Page 4 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 governing body and other committees. U/S 11 it has a Chief Executive Officer designated as the Director. Section 7 of the Act gives it a President. All the acts of or in the name of the AIIMS are to be authenticated in a manner given in Section 21 of the Act. The AIIMS has been given powers under this Act to frame Rules & Regulations to carry out the purpose of the AIIMS Act, 1956.
10. This court has seen the material available on record. There is not even a single piece of paper showing that the written statement or the so called Management's affidavits were really filed by the respondent the AIIMS. It appears to have been filed by some "Management" with the signatures of its Director. Similarly MW1 Sh. Arvind Gajbhiye has no where filed any authorization from the Director/ President of the AIIMS. He has not filed any Resolution of the governing body of the AIIMS. There is no authentication of these people as to have been authorized to appear in the court. Everything has been kept in dark.
11. The Management has not given a chance to this court to look into the fact as to who is defending this claim of the workman. Everything cannot run by presumption. It cannot be presumed here that whoever appeared in the name of the respondent / Management was really the respondent / Management.
12. The AIIMS is a legal persona and has a definite identity. There is a specific legal procedure to be followed by it in instituting / defending legal claims. But the same has not been duly followed here in this case. There is no linkage between the legal persona impleaded in these proceedings and the people contending that they were appearing for this legal persona. Link or relationship of this nature cannot be thrust forcibly by the appearing persons.
13. This court has no objective mechanism to ascertain the identity of the person or persons who apparently defended or tried to defend this claim. It is very surprising to see that one Sanitation Officer has come to this court to represent the AIIMS without it being in the knowledge of the AIIMS administration. Who authorized him on behalf of the AIIMS; why was he not authenticated as per law; how could he bind the AIIMS by his acts these all questions were never replied to. It is also not clearly established if in fact he was even an employee of the AIIMS as his identification papers AWARD Page 5 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 were never placed on record.
14. It is not sufficient for a party just to file an authorization in Form 'F' Industrial Disputes Act. That party has to give its identification and authentication also. The party which authorizes its attorney / AR to appear before this court has to give its own particulars too. For each party e.g. a natural person, a legal person, a society, a trust, a limited company or a private limited company or a corporation, this requirement of identification may vary. But in all cases, it is a sine qua non so that the court is in a position to identify the parties. And the proceedings before it are not collusive in nature. In the present case, the respondent / Management has totally failed in giving any identification of its authenticity or genuineness.
15. This view of this court is also substantiated by Part 16 Instructions to Civil Courts in Delhi Delhi High Court Rules. The observations of this court are in tendom with Rules contained therein.
16. The same is the intention of the legislature enshrined in Section 119 CPC where all unauthorized persons are restrained from addressing the courts during adjudication.
17. Conversely, in absence of any evidence as discussed above, this Management corporation cannot be restrained in case of an adverse order against it, to plead that it is not bound by that adverse order as no authorized person was ever sent to the court, as it had never authorized any person to appear before the court. Consequently, if the evidence led by the Management is taken on record, it would simply pave the way for this Management to accept or reject the court's verdict, and that too as per its own choosings. This evidence does not bind the respondent / Management tendered by the persons, not duly authorized by the respondent / Management.
18. This witness purportedly appeared on behalf of the Management but he had not shown any authorization issued by the Management in his favour. This witness was merely a Sanitation Officer. He can hardly be believed to be a responsible person on behalf of such a giant establishment as is the respondent AIIMS established under a Parliamentary Act. It appears that someone had sent this witness to the court just to complete a formality. This gentleman has also not filed his authorization nor did he file his AWARD Page 6 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 identity card or any other document to show that he was even an employee in the AIIMS. This witness who appeared in the court to represent the Management did not show his connection to the Management. In the particular circumstances of absence of his identification and authorization in accordance with the AIIMS Act, the evidence tendered by him is held as inadmissible on behalf of the respondent / Management.
19. Now the status of the case is similar to that of an exparte case where one party has led its evidence while the other party has failed to do the same. In these circumstances, the evidence of the claimant / workman can be considered now in disposing of the issues. The statements made by the claimant / workman during his cross - examination would also be considered but nothing tendered by the MW1 Sh. Arvind Gajbhiye would be considered as he could nowhere show his relationship to the respondent / Management the AIIMS This has already been observed by this court previously.
ISSUE NO. 1 :
20. In this issue this court has to adjudicate upon the factum if the present reference is bad as not being referred to by the appropriate Government.
21. It was for the Management to prove this issue but as the evidence of the Management has already been held as inadmissible in the eyes of law, therefore, it is held that the Management has not brought any evidence on this aspect. Hence this issue is held to be "Not Proved" by the Management AIIMS and is decided accordingly.
ISSUE NO. 2 :
22. In these issues this court has to adjudicate upon the factum if the Management is an industry under the Industrial Disputes Act, 1947.
23. In the AIIMS Vs. Raj Singh 2009 I - LLJ 260 the Hon'ble Delhi High Court has dealt with a similar or so to say an identical matter. AWARD Page 7 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 Because of its particular relevance the whole of the judgment is reproduced (verbatim) :
1. This appeal is directed against the impugned order dated March 26, 2007 passed by the learned single Judge dismissing W.P. © 2771/1999 filed by the applicant All India Institute of Medical Sciences (AIIMS).
2. The facts leading to the filing of the appeal are that the respondent Raj Singh was working as Driver with AIIMS on daily wages since August, 1, 1984 and continued to work as such till August 13, 1987 on daily wages. Aggrieved by the termination of the services, Raj Singh raised an industrial dispute which was referred to the Labour Court. By an award dated December 4, 1988 the Labour Court decided the issues in favour of the workman and against the appellant herein and directed the reinstatement of the workman, without back wages. Aggrieved to the extent, the back wages was denied, the workman filed W.P. (C) 5569/1999 in so far as the termination of the services of the respondent were held to be illegal and reinstatement ordered.
3. It was contended on behalf of the appellant before the learned single Judge that AIIMS was a hospital and not an "industry" within the purview of the Industrial Disputes Act, 1947 ("I.D. Act"). It was accordingly contended that the respondent was not a workman and therefore, the Labour Court has no jurisdiction to entertain his claim. Reliance was placed upon the judgments in Safdarjung Hospital V. Kuldip Singh Sethi AIR 1970 SC 1407 : (1970) 1 SCC 735 : 1970 SC 1407 : (1970) 1 SCC 735 : 1970IILLJ266, Bangalore Water supply and Sewerage Board v. A. Rajappa AIR 1978 SC 969 : (1978) 2 SCC 213 : 1978ILLJ349 and State of U.P. v. Jai Bir Singh (2005) 5 SCC 1 :
2005IILLJ831.
4. The learned single Judge negatived the contention and held that the Labour court was justified in holding the appellant to be an "industry" within the meaning of the I.D. Act. As regards, the petition by the workman, since he did not claim back wages before the Labour Court it was held that no such relief could be granted in the writ petition. Both writ petitions were accordingly dismissed.
5. We heard the submission of Mr. Mukul Gupta, learned counsel for the appellant and Ms. Sonia Arora, learned counsel for the respondent.
6. In the present appeal, at one stage, the parties were directed to take instructions on whether they would be willing to settle their disputes.
However, no amicable settlement could be arrived at.
7. It was submitted by Mr. Mukul Gupta, learned counsel for the appellant that the correctness of the decision of the Constitution Bench in the Banglaore Water Supply and Sewerage Board v. A Rajappa (supra) has been referred to a larger Bench of the Supreme Court and therefore, this court should await the judgment of the larger AWARD Page 8 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 Bench before deciding the present case. We are unable to accept this submission. The law declared in Banglore Water supply and Sewerage Board v. A. Rajappa (supra) continues to be binding. This Court has to apply law as it prevails. The reliance placed upon the decision of the Supreme Court in Physical Research Laboratory v. K.G. Sharma AIR 1997 SC 1855 : (197) 4 SCC 257 : 1997IILLJ625 (SC) is misconceived for the simple reason that the AIIMS does not cease to be a hospital merely because research is also carried on therein. Applying the law as explained in Bangalore Water Supply and Sewerage Board v. A Rajappa (supra), AIIMS has to be held to be an "industry" within the meaning of the I.D. know Act.
8. Reliance was placed on the judgment in Director, Food and Supplies, Punjab v. Gurmit Singh (2007) 5 SCC 727 : 2007IILLJ813 to contend the evidence had not been led before the Labour Court in regard to the issue whether AIIMS is an industry and that the case should be remanded to the Labour Court for a fresh determination. This Court finds that the decision in Gurmit Singh turned on its own facts. A specific plea was taken in case that the establishment was not an industry that had not been considered by the Labour Court. As far as the present case is concerned, the Labour Court has indeed considered this point and held as under:
"11. As regards the plea that management is not an industry, the law is wellsettled. It was held long back by Constitution Bench of the Hon'ble Supreme Court in Bangalore Water Supply and Sewerage Board v. A Rajappa (1978) 2 SCC 213 that hospital, research institutes and training center render valuable material services to the community qualifying for coming within Section 2 (J) of Industrial Disputes Act. The same was followed in Dr. V.P. Chaturvedi and Others v.
Union of India (191) 4 SCC 171 and V.L. Chandra and Other Vs. AIIMS and Other AIR 1990 SC 1670 : (1990) 3 SCC 38 : 190II LLJ29 (SC). In view of the said authorities pronouncing I have no hesitation in holding that the management is an industry".
In that view of the matter, it cannot be said that the Labour court erred in holding the appellant to be an industry. Having considered the decisions in State of Gujarat v. Pratam Singh Narsinh Parmar (2001) 9 SCC 713 : 2001ILLJ1118, State of U.P. v. Jai Bir Singh (1997) 4 SCC 257 and Executive Engineer (State of Karnataka_ v.
K. Somasetty (Supra), this Court is not persuaded to take a view different from that taken by the learned single judge.
9. We find no infirmity in the impugned order passed by the learned single Judge that calls for interference. The appeal and the pending application are, accordingly, dismissed.AWARD Page 9 of 20
Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 24 The matter in hand is completely identical except a few personal nouns to the matter dealt with by the Hon'ble Delhi High Court in the aforesaid case. The case AIIMS Vs. Raj Singh (SUPRA) was relied upon by the workman.
25 Hence there is no room for this court to differ either on merits or on law from the mandate dictated by the Hon'ble Delhi High Court. Hence it is held by this court that for the purpose of this adjudication this respondent the AIIMS is an industry.
26. It is held accordingly.
ISSUE NO. 3 :
27. In this issue this court has to adjudicate upon the factum if the services of the workman were terminated illegally and / or unjustifiably by the Management.
28. The workman had clearly alleged that he had worked there from 03.05.1993 to 01.01.1994 as a 'Nursing Orderly'. An admission was made by the opposite party to the effect that this workman was working with it as a daily wager, therefore, as a consequence, he was not entitled to any relief under the Industrial Disputes Act.
29. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
30. The Hon'ble Supreme Court in case Workmen of Nilgiri Coop. Marketing Society Limited Vs. State of Tamil Nadu & Ors. 2004 LLR 351 has observed as follows :
49. "It is a well settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
50. "In N.C. John Vs. Secretary Thodupuzha Talul Shopand Commercial Establishment Workers' Union and Others [1973 Lab. I.C. 398], the Kerala High Court held :
"The burden of proof being on the workmen to establish the employer - employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer - employee relationship."
51. In Swapan Dos Gupta & Others vs. The First Labour Court of West Bengal and Others, [1975 Lab. IC 202] it has AWARD Page 10 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 been held that "Where a person asserts that he was a workman of the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company, but of some other person."
31. The law was also elaborated by the Hon'ble Delhi High Court in UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 and in Automobile Association of Upper India Limited Vs. PO Labour Court & Anr. 2006 LLR
851.
32. In Automobile Association of Upper India Limited Vs. PO Labour Court & Anr.
(SUPRA) it was observed by the Hon'ble Delhi High Court that, 'it is well settled that the primary burden of proof to establish a plea rests on a person so claiming in this behalf reference can be appropriately made to the judicial pronouncement in III (2001) SLT 561; (2001) 9 SCC 713 (715), State of Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar, III (2004) SLT 180; 2004 LLR 351 (para 49), Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu, 2001 LLR 148, Dhyan Singh Vs. Raman Lal, 1996 Lab. I.C.202, Swapan Vs. First Labour Court,West Bengal, and 1973 Lab. I.C. 398 N.C. John Vs. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same.'
33. In UCO Bank Vs. Presiding Officer & Another 1999 V AD (Delhi) 514 (SUPRA), it was held by the Hon'ble High Court, 'Now I shall deal with the second issue relating to burden of proof : Principles regarding burden of proof are stipulated in Chapter - VII of Indian Evidence Act, 1872 (Section 101 to 114A). General Principal, which is laid down in these sections particularly Section 101 and 102 is that he who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the satisfaction of the Tribunal or Court in order to establish the existence or non - existence of a fact contended to by a party. Burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a AWARD Page 11 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 negative is usually incapable of proof. Dealing with aforesaid Principles contained in Indian Evidence Act, Mr. O.P. Malhotra in his book entitled "The Law of Industrial Disputes", Fifth Edition (Volume 1) Page - 842 states as under : 'The expression 'burden of proof' has two distinct and often blurred meanings viz. (i) the burden of proof as a matter of law and pleadings. This, burden, as it has been called, for establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, and (ii) the burden of proof in the sense of introducing evidence. In the Indian Evidence Act, Sec. 101 uses the expression in the former sense while Sec. 102 uses it in the latter sense. The former type of onus viz. The burden of proof of the facts in issue is usually known as the general burden of proof or the burden of proof on pleadings. This type of burden of proof has been called by jurists, the 'legal burden', the legal or persuasive burden is the burden borne by the party who will loose the issue unless he satisfies the Tribunal of the facts to the appropriate degree of conviction and it is aptly termed the "Risk of Non Persuasion" by Vigmore. The phrase 'legal burden' was coined by Lord Denning while the phrase 'persuasive burden' was used by Dr. Glanville Williams. Other jurists have referred to it as the "burden of proof on the pleadings". This burden is entitled to be called the legal burden because its incident is determined by the substantive law, and the adjective persuasive gives some indication of its real nature. The pleadings do not always indicate which party bears the burden, and the answer to a somewhat controversial question is assumed if it is said to be "fixed", for the epithet is designed to emphasis the fact that this burden does not shift in the course of a trial a matter of words about which there is room for two views in the case of issues to which certain rebuttable presumptions of law are applicable. The latter type of onus is called the professional or the tactical burden. The burden of proof in the first sense is fixed at the beginning of the trial by the state of pleadings and it is settled as a question of law. Remaining unchanged, throughout the trial exactly where the pleadings place it and never shifts in any circumstances whatsoever. The burden of proof in the second sense, however, constantly shifts as one scale of AWARD Page 12 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 evidence or the other preponderates".
The point of consideration is as to whether these rules of evidence would be applicable even in adjudication pleadings under the Industrial Law. This question was decided by Supreme Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. (1979) II LLJ 194 wherein Supreme Court observed that through the Adjudicatory Authorities under the Act have all the trappings of a court, they are not hide bound by the statutory provisions of the Evidence Act Section-11 (3) of the Industrial Disputes Act confers on them powers of a Civil Court under the Code of Civil Procedure only in respect of matters specified therein. Such Authorities are created for adjudication of Industrial Disputes between the parties arrayed before them. Their function being of a quasi - judicial nature, they have to adjudicate such disputes on the basis of pleadings of the parties and the evidence adduced before them in accordance with Rules of Natural Justice. Therefore, any party appearing before anyone of such Authorities must make a claim or demur the claim of the other side. When there is a burden upon the party to establish a fact so as to invite a decision in its favour, it has to lead the evidence. The obligation to lead evidence to establish an averment made by a party is on the party making the averment. The test would be who would fall if no evidence is led. Such party, therefore, must seek opportunity to lead evidence.
34. In pursuance of the law as aforesaid, this court is of the view that prima facie it is a burden on the workman to prove that he had a relationship with theManagement in the nature of 'an employer and an employee'. He has also to show and prove the other details of this relationship. This burden of proof keeps shifting between the parties during the course of an adjudication.
35. As per his own case the workman was employed on 03.05.1993 and his services were terminated on 01.01.1994. As per simple calculation the workman would have completed 8 months (i.e. 240 days) of his services on 03.01.1994. But his services were terminated on AWARD Page 13 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 01.01.1994. The period of his working is tentatively 7 months and 28 days or 238 days. [(7 x 30 + 28) = (210 + 28) = (238)].
36. During the course of arguments a simple piece of paper was placed by the workman in which a calculation was made to show that the time period in which the workman allegedly worked for the Management was of 243 days. He made a simple calculation by adding actual number of days in the months from May to December, 1993. This calculation shows the real number of days the workman had worked there was 243 i.e. more than the minimum requirement of 240 days. No counter argument was advanced by the opposite party to show that this calculation was not correct. This calculation by the workman showing his working for more than 240 days is also plausible because the respondent / Management in its written statement had not pleaded any other alternative dates of employment or termination of service of the workman. The date of employment as 03.05.1993 was confirmed in the written statement but nothing was stated regarding the last date of working. Only a cursory reference was made in para 2 in reply on merits in the following words : ".......However, he was not selected in said interview held in December, 1993. Therefore, he was not given any further extension w.e.f. 01.01.1994."
This reference is taken by the court as an admission by the Management regarding the date of appointment and the date of termination of services.
37. The claimant / workman has pleaded in his claim that he was a daily wager in the respondent establishment the AIIMS. He also did not plead that the rate of his last drawn wages. He kept working there till 01.01.1994 when his services were terminated. In the written statement purportedly filed on behalf of the Management, this status of the claimant / workman as a daily wager was admitted. The respondent / Management has not made any pleading on the point of date of termination of the services of the workman. Here the point of the Management was that the present claimant was a daily wager and hence he was not entitled to the benefits available to a 'workman' under the Industrial Disputes Act. AWARD Page 14 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04
38. The Hon'ble Delhi High Court in case M.C.D. Vs. Narender Kumar & Anr. WP(C) No. 15232 of 2004 held as follows : "The Supreme Court in Samishta Dube's case (Supra) has held that the definition of 'workman' in industrial law is not restricted to regular employees and the same would also include daily wagers and the rule of Seniority is applicable to daily wagers also. With this settled legal position, the only ground which was available to the petitioner Management was to bring its case within the scope of section 2 (oo) (bb) of the Industrial Disputes Act which is an exception to Section 25 F, 25 G and 25 H of the Industrial Disputes Act."
39. A similar observation was made by the Hon'ble Delhi High Court in Bhopal Vs. Presiding Officer, Labour Court & Anr. 2007 LLR 686. The Hon'ble High Court held as follows : "Having gone through the aforementioned case law and in the light of the facts and circumstances of the case there is no doubt that the petitioner comes within the definition of a 'workman' in terms of section 2 (s) of the Act. Once it is found that the petitioner comes within the definition of a 'workman', and that he has rendered 240 days of continuous service in the year, then irrespective of whether he was a daily wager or not, the natural consequence thereof is the conclusion that the provisions of Section 25 F of the Act were applicable to him and termination of his services without complying with the provisions of section 25 F was illegal.'
40. Now this court is of the view that nomenclature 'daily wager' does not make any distinguishing sense so far as the word 'workman' under the Industrial Disputes Act is concerned. A 'daily wager' is very well a 'workman' under the Industrial Disputes Act.
41. After the admission of the Management that this workman was a 'daily AWARD Page 15 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 wager' working for it, this court draws a conclusion that a relationship in the nature of 'an employer and an employee' is established between the Management and the workman and the workman has discharged his burden on this point. Now keeping in view the language of Section 106 of the Evidence Act, the domain of the Management starts. Once a relationship in the nature of 'an employer and an employee' is established between the parties, and the provisions of the Industrial Disputes Act are prima facie applicable to that relationship, then it is for the Management to disclose other and further details of that relationship. It is a matter within its specific knowledge because due to a poor socio-economy and educational background, a workman cannot be burdened to produce all the documents 17 - 18 years old during an adjudication. This was a burden on the Management to discharge.
42. In this case the evidence of the Management has already been held as inadmissible. Had it not been held so, even then it would not have made any difference because the Management had not even pleaded an exclusive version of facts on the point of service of this workman. Its denial is a simple and evasive denial. This court is also of the view that the Management is guilty of not bringing an evidence on this aspect of the relationship between it and the workman.
43. At this point this court can safely draw a presumption U/S 114 illustration (g) Evidence Act that had that evidence been brought before the court, it would have gone against the interests of the Management. Hence it is hereby held that the points of date of appointment, rate of daily wages and the date of termination are proved by the workman as uncontroverted because the Management had not brought the related evidence on record despite abundant opportunities given to it. Whatever it had brought on record, it was defective and against the law. As a corollary of this observation the date of appointment of the workman and the date of termination are held to have been proved as 03.05.1993 and 01.01.1994 respectively as pleaded by the claimant in his claim.
44. As per the rule laid down in "S.M. Nilajkar And Others Vs. Telecom District Manager, Karnataka (2003) 4 Supreme Court Cases 27 burden to prove the ingredients of Section 2 (oo) (bb) of the Industrial AWARD Page 16 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 Disputes Act in an employment it must be shown to be under a contract which stipulates that it would come to an end with the expiry of a specific event. Management has not only failed in pleding any such contract between it and the workman, but also failed to bring any document of this nature on judicial record. The submissions of the Management were merely verbal and did not contain any evidentiary material in them. But in the present case it has already been held that the respondent / Management's evidence was inadmissible and it cannot be said to have discharge its burden. Therefore, this aspect of the issue is also held to be not proved by the Management.
45. As per versions of both the parties available on record, the workman was not allowed to work after 01.01.1994. The workman called it as illegal termination of his services while the Management pleaded that he was not offered work after 01.01.1994. In the circumstances as observed above, the Management could not prove its this version and the termination of workman's service was in such circumstances as to constitute retrenchment U/S 2 (oo) of the Industrial Disputes Act which reads as follows : "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 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.
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46. Comparing this law with the facts of this case, it is clear that the services of the workman Nafe Singh were "retrenched" on 01.01.1994. The Management had not even pleaded any defence available under the statute i.e. Section 2 (oo) of the Industrial Disputes Act.
47. This court is of the view that it is not even in the pleadings of the Management that this retrenchment of workman's services were in accordance with Section 25 F of the Industrial Disputes Act. No record of any notice, notice pay or compensation was pleaded or proved. Consequently, the retrenchment of the workman is found against the provisions of the Industrial Disputes Act.
48. The Hon'ble Supreme Court in case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) (2010) 5 Supreme Court Cases 497 has held that : "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25 F (a) and (b) has the effect of rendering the action of employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
49. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial DisputesAct was imperative. The contravention thereof would render the retrenchment illegal. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act but of Rule 77 the Industrial Disputes Rules also.
50. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the workman in the present matter was wrong. The impugned retrenchment of the workman by the Management was legally defective.
AWARD Page 18 of 20 Sh. Nafe Singh Vs. M/s. All India Institute of Medical Science ID No. 1019/04 RELIEF :
51. As per the findings of this court as aforesaid the claimant Nafe Singh was found serving the Management from 03.05.1993 to 31.12.1993. He had just pleaded the minimum statutory period required for seeking relief under the Industrial Disputes Act. But his pleadings in the claim created a second problem before the court. He nowhere has written his last drawn salary in the pleadings as well as in his evidence affidavit. In a very clever way he simply had written that he was receiving wages 'as fixed and revised from time to time by the appropriate Government'. As per language of Section 25 B of the Industrial Disputes Act this workman would be deemed to have worked for one year with the Management. Therefore, this court directs that he be given a compensation for his one year's service as calculable U/S 25 F of the Industrial Disputes Act. For this purpose the date of his appointment be taken as held proved by the court and the last drawn wages be taken a per the rates applicable on 31.12.1993. The claimant / workman has to show it before the executing authority as to what rates were applicable at that time.
52. In his cross - examination he has clearly stated that he had not made any efforts to get a job after 01.01.1994 i.e. the date when the retrenchment of his service was alleged. This clearly shows that the workman Nafe Singh would have been getting some financial assistance for his survival from somewhere else. It was not logically possible for a person who had just lost his job to sit home and drop his efforts for searching a new job.
53. Therefore, this courts does not find his case good for awarding any back wages. As the workman had not disclosed his wages in the claim, therefore, it is not proper for this court to make any calculation and apply multiplicative factors estimating the effect of rate of inflation and the amount of depreciation of currency. As a blind case this court direcats that an amount of Rs.10,000/ be given in addition to the compensation as calculated in para 51.
54. This court awards a further sum of Rs.5000/ as litigation expenses.
55. Reference is answered accordingly.
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56. The original documents be returned against acknowledgment back to the party which has filed them and further subject to the filing of the certified copies of the same.
57. File be consigned to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 03.10.2012.
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