Delhi District Court
Maninder Singh vs M/S Mahafil Banquet on 12 April, 2019
IN THE COURT OF SH. PAWAN KUMAR MATTO,
PRESIDING OFFICER, LABOUR COURT NO. IX, SOUTH-
WEST; DWARKA COURTS: DELHI
LIR No. 8825/16
Date of institution 05.09.2016
Date of Award 12.04.2019
Maninder Singh
S/o Late Sh. Harbhajan Singh
R/o B-425, 1st Floor, Sudarshan Park,
Moti Nagar, New Delhi-15.
.....claimant
Vs.
M/s Mahafil Banquet
A-39, Mahendru Enclave
G.T., Karnal Road,
Azadpur, Delhi-33.
.....Management
AWARD
1. This award of mine will dispose off the
reference as sent to this court by the Office of the Joint
Labour Commissioner, Labour Department, Distt. North-
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 1/19
West, Govt. of the National Capital Territory of Delhi,
Delhi, arising out between the parties, as mentioned
herein above, vide notification No.F.24/ ID/
365/15/NWD/815/15/Lab/4137-41 dated 29.08.2016 with
the following terms of reference:-
"Whether the services of claimant Sh.
Maninder Singh s/o Late Sh. Harbhajan
Singh have been terminated illegally
and/or unjustifiably by the management;
and if so, to what relief is he entitled
and what directions are necessary in this
respect?"
2. Sh. Maninder Singh (hereinafter will be referred
to as the "Claimant/claimant") has filed a claim petition
against M/s Mahafil Banquet (hereinafter will be referred
to as the "Management"), wherein, the claimant has
averred that the claimant was working with the
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 2/19
management on the post of Booking Clerk since
04.04.2012 and his last drawn wages was Rs. 22000/-
per month. The management has not issued any
appointment letter to claimant. The management had
illegally terminated the services of the claimant on
20.07.2015. It is also stated that the claimant used to
work sincerely and honestly and he did not give any
chance of complaint to the management. It is also stated
that the management did not provide the legal facilities
i.e. Casual Leave, Incentive, Pay Slip, Leave Book, CA,
yearly increment, Over time wages, Festival Leave etc.
to claimant and claimant used to demand to
management to provide the abovesaid legal facilities,
but, the management has not provided the same to him.
The management used to mark the presence of claimant
in the attendance register and also used to pay wages to
him on the wages register. It is also stated that the
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 3/19
management had not paid the earned wages for the
months of April, May and June 2015 to claimant and
when, the claimant asked to management to pay his
earned wages for the said months, then, on 19.07.2015,
the management had illegally terminated the services of
the claimant without any rhyme or reason, without
paying the earned wages for the months of April, May,
June and 18 days of July 2015 to claimant, without
paying the compensation and without conducted any
domestic enquiry against the claimant. It is further
stated that on 17.07.2015, the claimant had filed the
complaint against the management before the Assistant
Labour Commissioner, Nimari Colony, New Delhi and on
his complaint, the Labour Inspector had visited the
establishment of management and he advised to
management to reinstate the claimant in service and to
pay his earned wages for the abovesaid months. It is
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 4/19
also stated that the claimant had sent demand notice to
the management through his Union, which was duly
served upon the management, but, the management did
not reply the same. The claimant had filed the statement
of claim before the Assistant Labour Commissioner,
Nimari Colony, New Delhi. Despite of issuing of summons
by the Conciliation Officer, the management did not
appear at there. It is stated that the claimant has worked
more than 240 days with the management. It is also
stated that the claimant is unemployed, since, the date
of termination of his services by the management and
has prayed that his claim petition may be allowed and
he may be reinstated with full back wages with interest.
3. Notice of claim petition was issued to the
management, but, management did not appear despite
of services of notice of the claim. Consequently, the
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 5/19
management was proceeded exparte vide order dated
11.09.2017 and the matter was adjourned for exparte
evidence of the claimant.
4. The claimant Sh. Maninder Singh in order to
prove his case has examined himself as WW-1 vide his
affidavit Ex.WW1/A and relied upon Ex.WW1/1 which is
office copy of complaint to ALC dt. 29.07.2015, WW1/2 is
copy of Labour Inspector report dated 03.09.2015, Ex.
WW1/3 is office copy of statement of claim filed by the
claimant before the ALC, Ex. WW1/4 is copy of
application dated 05.01.2018 filed by the DLC before the
CMM. Thereafter, the exparte evidence of claimant was
closed.
5. I have heard ld. AR for the claimant.
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 6/19
6. Ld. AR for the claimant has submitted that this
claimant was appointed on 04.04.2012 as 'Booking Clerk'
by the management and his salary was Rs. 22,000/- per
month and his salary was withheld for the months of
April, May and June 2015 and when, the claimant had
demanded for the same on dated 19.07.2015, his
services were illegally terminated and submitted that the
claimant has filed the complaint before the Labour
Inspector, but, the management did not appear before
him and submitted that since, the services of the
claimant have been illegally terminated and the claimant
has filed the photocopy of the application Ex.WW1/4,
from which, the relationship of workman and
management may be proved, as the authority under
Delhi Shops and Establishment Act 1954, had filed an
application in the Court of Chief Metropolitan Magistrate,
North West, Rohini, Delhi for recovery of Rs. 80933/- and
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 7/19
submitted that since the services of the claimant have
been illegally terminated by the management, so, the
claimant is liable to be reinstated with full back wages.
7. I have given thoughtful consideration to the
submissions made by AR of the claimant and perused
the record.
8. Since, claimant has claimed that he was
appointed as Booking Clerk on dated 04.04.2012 and his
salary was Rs.22,000/- per month and the claimant has
also claimed that his services have been illegally
terminated by the management on dt.19.07.2015 and in
order to prove his case, the claimant has examined
himself as WW-1 vide his affidavit Ex.WW-1/A and in one
way or the other, the claimant has reiterated the
contents of his statement of claim therein and the
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 8/19
claimant has relied upon the photocopies of documents
i.e. the copy of complaint to the Assistant Labour
Commissioner Ex. WW1/1, copy of Labour Inspector
report dated 03.09.2015 Ex. WW1/2, office copy of
statement of claim filed by the claimant before the ALC
Ex. WW1/3, copy of application dated 05.01.2018 filed by
the DLC before the CMM Ex. WW1/4 and the ld. AR for
the workman has submitted that the for proving the
relationship of workman and management, the copy of
the application u/s 21(5)(b) of Delhi Shops and
Establishment Act for recovery of amount as fine may be
looked into, but, this court is of the considered opinion
that this document is not considerable for determining
the relationship between the claimant and the
management. Since the workman has claimed that he
was appointed on 04.04.2012 and his services were
illegally terminated by the management, on dt.
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 9/19
19.07.2015, so, it was incumbent on the part of the
workman to bring on record some cogent evidence and it
was incumbent on the part of the claimant to prove that
he had worked with the management for 240 days prior
to the termination of his services on dated 19.07.2015,
but, the workman has not brought on record any cogent
evidence.
9. 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
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 10/19
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.
10. 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
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 11/19
employer.
11. 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, in
directing reinstatement of the respondent-workman.
12. Hence, as per aforesaid decisions, it was for the claimant to prove that he has been employed with the LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 12/19 management for the period as alleged and his services were illegally terminated by the management.
13. In UCO Bank v. Presiding Officer- 2000 I CLR 105 it was held that: 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 negative is usually incapable of proof.
14. In Krishna Bhagya Jala Nigam Ltd. v.
Mohammed Rafi, 2006 LLR 1080, Hon'ble Supreme Court held.
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 LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 13/19 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, 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 LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 14/19 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."
15. In Ravi N. Tikoo v. Deputy Commissioner (S.W.) & Ors. 2006 II AD (DELHI) 560 our own Hon'ble High Court observed as under:
37. "At this stage, it becomes necessary also to know that extent to which the workman is required to prove his case in the light of the absence of non-traverse by the management and lack of any defence before the industrial adjudicator. Such issue can be examined in the light of the provisions of Order 8 Rules 5 & 10 of the Code of LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 15/19 Civil Procedure and the principles of law laid down thereunder. Even if the respondent has not appeared before the court, the court has to exercise discretion as to the manner in which further proceedings should take place. The court would examine the allegations made by the claimant and the material placed on record, and if fully satisfied, would proceed to answer the reference in favour of the workman. However, the basic principle being that where a claimant comes to court, he must prove his case, cannot be whittled down even in a case where no respondent appears. The court having called upon claimant to lead its evidence would be required to look at the case set up by the claimant which would include the pleadings and evidence in support and evaluate the same and be satisfied that the case set up by the claimant has been adequately established. It is settled law that the party seeking a claim and adjudication has to prove its case before the court. Merely because, the respondent or the defendant has chosen to remain absent LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 16/19 from the proceedings before the court or the tribunal, it does not follow that the consequence has to be a judgment or an order in favour of the claimant without any further proof of its contentions. A claim could be required to be proved by cogent and reliable evidence".
16. Thus, from the law discussed hereinabove, it is clear that the burdened of proving that this claimant worked for 240 days or more with the management, was on the claimant. No doubt that this claimant has examined himself vide affidavit Ex.WW-1/A and pleaded therein that he had worked with the management as 'Booking Clerk' since 04.04.2012, but, mere filing of affidavit is not sufficient to prove that this claimant was workman. The claimant has also filed the copy of application dt. 05.01.2018 filed by the authority under the Delhi Shops and Establishment Act in he court of LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 17/19 Ld.CMM(North West) Ex.WW-1/4, but, that document is not relevant to determine that claimant was workman, so, on the basis of the said document, it cannot be held that the claimant was workman of the management within the meaning of Section 2 (S) of the Industrial Disputes Act.
17. In view of the above discussions, I am inclined to hold that the claimant had failed to prove on record that he worked for a period of 240 days or more with the management. As the claimant has failed to prove that he worked with the management for a period of 240 days or more, hence, he has failed to prove that he is workman within the meaning of provisions of Section 2 (S) of the Industrial Disputes Act. So, he is not entitled to get relief under Section 25F of the I.D. Act. Accordingly, the statement of claim of the claimant is hereby dismissed. LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 18/19 The reference is answered accordingly.
18. A copy of the award be sent to the Office of the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room, as per rules after compliance of necessary legal formalities. Digitally signed
PAWAN by PAWAN
KUMAR MATTO
KUMAR Date:
MATTO 2019.04.12
15:20:35 +0530
Dictated and (PAWAN KUMAR MATTO)
Announced in Open PRESIDING OFFICER
Court on 12.04.2019 LABOUR COURT-IX/
SOUTH-WEST DISTT.
DWARKA COURTS:DELHI
LIR no.8825/16 Maninder Singh vs M/s Mahafil Banquet 19/19