Delhi District Court
Shri Rambir Singh vs M/S S.K. Timbers on 13 August, 2008
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IN THE COURT OF MS. NISHA SAXENA, POLC, FAST
TRACK-XXI, KARKARDOOMA COURTS, DELHI
ID No. 28/08/96
Shri Rambir Singh,
C/o Lokhit Kamgar Union,
C-35, Near Madras Shop,
Indl. Area Wazirpur,
Delhi-52. ........Workman
Versus
M/s S.K. Timbers,
Bawana Road,
Near Delhi Dharam Kanta,
Sameypur,
Delhi-42. .......Management
Appearances : AR for the workman Shri D.B. Yadav.
AR for the management Shri M.K. Diwedi.
References : 1. Dhyan Singh vs. Raman Lal 2001 LLR 148.
2. R.M. Yellati vs. The Assistant Executive Engineer I
(2006) SLT 32.
3. Surendranagar District Panchayat and anr. vs.
Gangaben Laljibhai and others VIII (2006) SLT 364.
Date of Institution : 16.07.96
Date of reserving for award : 08.08.08
Date of award : 13.08.08
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AWARD
01. Secretary (Labour) Govt. of the National Capital
Territory of Delhi vide his order No. F.24(1089)/96-Lab./29387-92
dated 24.05.96 has referred the industrial dispute between M/s
S.K. Timbers, Bawana Road, Near Delhi Dharam Kanta,
Sameypur, Delhi-42 and its workman Shri Rambir Singh, C/o
Lokhit Kamgar Union, C-35, Near Madras Shop, Indl. Area
Wazirpur, Delhi-52 for adjudication as per the following terms
of reference:-
"Whether the services of Shri Rambir
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?"
02. Briefly stated, the facts of the case as disclosed in the
statement of claim are that the claimant had been working as a
Munim at a salary of Rs. 1600/- per month for the last ten years.
The management was not providing statutory benefits like
minimum wages, leave attendance, bonus, ESI, PF, overtime etc.
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When he demanded the same, management got annoyed and
terminated his services w.e.f. 06.11.94. He has claimed that he
has been unemployed since his illegal termination. He sent a
demand notice to the management through regd. AD and UPC but
the management did not receive the same. He has sought
reinstatement in service alongwith full back wages. The stand of
the management is that the sole proprietor of the firm Shripal
Jain expired on 09.11.95. Thereafter, the firm got closed and sales
tax registration was surrendered and it is claimed that the
workman worked with the management only for 5-6 months.
03. On the pleadings of the parties, following issues were
raised for trial :-
1. As per terms of reference.
04. In the matter earlier an exparte award was passed on
16.5.2000. However, on an application moved by the management,
the exparte award was set aside.
05. On the pleadings, parties were called upon to lead their
respective evidence. In support of his case, workman examined
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himself as WW1 and proved his affidavit as Ex. WW1/A and relied
upon the documents Ex. WW1/1 to Ex. WW1/6. On behalf of the
management Shri Amit Jain, son of the deceased proprietor has
been examined as MW1 who proved his affidavit as Ex. MW1/A
and relied upon the documents Ex. MW1/1.
06. I have heard AR for the workman Shri Shyam Narain
and AR for the management Shri M.K. Diwedi and gone through
the entire record.
07. My findings on the issues are as hereunder.
Issue No. 1 :- As per the terms of reference.
The onus is on the workman to prove that he
worked with the management for more than 240 days and
therefore, is entitled to the benefits under section 25-F of the
Industrial Disputes Act. He has stated in his affidavit that he
worked for more than 10 years with the management prior to his
termination. In his cross-examination, he has denied the
suggestion that he did not work for 240 days with the management
and he worked only for 5-6 months. MW1 Shri Amit Jain has
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stated in his affidavit that in total the workman worked only for 5-
6 months and is not entitled for any dues as he never worked for
240 days with the management. There is no cross-examination of
the witness on this point and therefore, the averment of the
management witness Shri Amit Jain is taken to have been
admitted by the workman since no cross-examination is conducted
on the issue if the workman did not work with the management for
240 days. Once the management has denied that he worked for 10
years with the management, the onus was squarely upon the
workman to prove his duration of services with the management.
Only oral testimony is not sufficient to prove that he worked with
the management for 10 years. To prove a contract of employment
there has to be direct evidence. Workman has not been able to
place any document on record to show that he worked for more
than 240 days with the management except for his bald statement
in which he submitted that he worked for 10 years with the
management. Had he worked for so long with the management he
could have produced any co-employee. He could have produced
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some documents to prove that he worked for such a long period
with the management. All the documents placed on record Ex.
WW1/1 to Ex. WW1/6 pertain to the period after his termination. I
am supported in my opinion by Dhyan Singh vs. Raman Lal
2001 LLR 148. In R.M. Yellati vs. The Assistant Executive
Engineer I (2006) SLT 32, it was held that "mere affidavits or
self-serving statement will not suffice in the matter of discharge of
burden placed by law on the workman to prove that he had worked
for 240 days in a given year." In the same strain is
Surendranagar District Panchayat and anr. vs. Gangaben
Laljibhai and others VIII (2006) SLT 364. In his affidavit
workman has stated that the management was not provding legal
benefits such as minimum wages, weekly offs, payment of casual
leave, attendance card, ESI card, bonus, PF and overtime etc.
However, in his cross-examination, he stated ESI was not
applicable to the firm and he was not aware about Provident Fund.
In his affidavit, MW1 Shri Amit Jain has stated that the payment
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of bonus, ESI and EPF were not applicable upon the shop and
there is no cross-examination that ESI, EPF or bonus were
applicable on the management. The management has taken the
plea that the firm closed down after demise of its proprietor Shri
Sripal Jain. The same is denied by the workman. MW1 Shri Amit
Jain has denied the suggestion in his cross-examination that the
firm is running at Anand Parbat. To prove that the firm has
closed down, the management has placed on record Ex. MW1/1
assessment order under section 23(3) of Delhi Sales Tax Act, 1975
which reflects that the firm is no longer in business. In his cross-
examination, WW1 has stated that he does not have any
documentary proof to show the the respondent firm is still in
existence. In view of the above discussions, I hold that the workman has failed to show that he worked for more than 240 days with the management and is hence not entitled to the benefit of section 25-F of the Industrial Disputes Act. I accordingly hold that the workman Rambir Singh could not prove that his services were terminated illegally and unjustifiably. He is not entitled to 8 any relief from the court. Issue no. 1 is accordingly decided in favour of the management and against the workman.
08. Reference is answered accordingly. Six copies of the award be sent to the Secretary (Labour) for publication within 30 days. File be consigned to the record room. ANNOUNCED IN THE OPEN COURT ON: 13.08.2008 (NISHA SAXENA) PRESIDING OFFICER, LABOUR COURT, KARKARDOOMA COURTS, SHAHDARA, DELHI 9