Delhi District Court
Sh. Suresh Kumar Gaur vs . M/S. All India Institute Of Medical ... on 3 October, 2012
Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0408532004
F.24 (2036)/86-Lab./25722 - 26 dated
Reference No.
03.10.1986.
Type of Case Reference Case.
Date of Institution 09.10.1986
Evidence concluded on 13.05.2011
Arguments heard on 05.09.2012
Date of Award 03.10.2012
WORKMAN Vs. MANAGEMENT
Sh. Suresh Kumar Gaur S/o Sh. M/s. All India Institute Of Medical
Suraj Bhan Gaur, R/o Village And Science, Ansari Nagar, New Delhi
Post Office Shahabad - 2.
Mohammadpur, Near Palam, New
Delhi - 45.
PRESENT:
None for the parties.
AWARD :-
1. The appropriate Government sent a reference no. F.24 (2036)/86Lab./25722 - 26
dated 03.10.1986. to this court in relation to the illegal termination of the services
of the claimant /workman Sh. Suresh Kumar Gaur 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.
Suresh Kumar Gaur was illegal and / or
unjustified and if so, to what relief was he
entitled and what directions were necessary in
this regard?"
AWARD Page 1 of 19
Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04
2. As per claim the workman Suresh Kumar Gaur joined the services of the
Management M/s. All India Institute of Medical Science as a "Wire Man" on
23.09.1980. He kept working as such. From 23.12.1980 he was working as
"Senior Mechanic" on daily wage basis. At that time he was given Rs.25 per day.
He pleaded that other senior mechanics were paid salary in the pay scale of Rs.330
- 480/ onwards. During the course of his employment he used to demand his
permanent selection in the service, but the Management did not pay any heed to his
demands. Moreover, his services were terminated by the Management on
23.02.1986 without assigning any reasonable cause or justification. Thereafter a
demand notice dated 10.03.1986 was pleaded to have been sent to the Management.
But this demand notice remained without any response.
3. The Management M/s. All India Institute of Medical Science purportedly filed a
reply / written statement which was subsequently amended. In the written statement
a preliminary objection was taken tht the Management was not an industry within
the meaning of the Industrial Disputes Act and that the claimant / workman was a
daily wager and was not entitled to any relief. As per the Management the relief
under the Industrial Disputes Act was available only to a permanent worker.
Thereafter, the whole claim of the claimant / workman was denied on merits by the
Management.
4. In these backgrounds of the pleadings of the parties, the ld. Predecessor vide its
orders dated 20.03.1989 framed the following issue :
1. As per terms of reference.
5. Subsequently on 03.12.2008 the other ld. Predecessor framed the following two
additional issues :
1. Whether the Management is industry or not under the Industrial
Disputse Act, 1947?
2. Relief.
AWARD Page 2 of 19
Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04
6. For the purpose of present adjudication, all the aforementioned issues are
restructured and renumbered as follows :
1. Whether the Management is an industry or not under the Industrial
Disputes Act, 1947? OPM.
2. As per terms of reference.
3. Relief, if any.
7. After the framing of issues the workman Suresh Kumar Gaur examined him as
WW1 and almost reiterated his claim in material aspects.
8. Initially he was examined through his evidence affidavit Ex. WW1/A dated
29.07.1994. On this affidavit he was cross examined on 29.01.2002. Subsequently
an application of the Management for amendment in its written statement was
allowed on 15.10.2008 and after that this workman again examined him as WW1
on 22.04.2009. He tendered his second evidence affidavit as Ex. WW1/B. On this
affidavit he was cross - examined on 26.05.2010, 04.08.2010 and 27.10.2010. In his
first evidence affidavit the workman deposed that although he was on daily rate
wager but he was paid at the end of a calender month. It was also alleged that his
salary was less than the one which could have been granted under the Minimum
Wages Act. During his cross - examination he stated that one AE Mr. D.R.
Sharma appointed him after having an interview of the workman. In this matter no
appointment letter was given to him. Initially his appointment was made as a
"Wireman", but subsequently he was promoted as a "Senior Mechanic" w.e.f.
12.01.1981. During the cross - examination he stated that he worked continuously
for this working period and he without applying any leave except holidays on
Sundays and national holidays. At the time of termination of his services he was
simply asked by Mr. D.R. Sharma that his services were not required and he
should not come for work thereafter. He stated that he remained
unemployed since the termination of his services despite his efforts to
get an employment.
AWARD Page 3 of 19
Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04
9. The second affidavit was merely an effort to show that the Management was not a
charitable institution, but it was run to gain profits. Basically by the second affidavit
the workman tried to establish that the respondent / Management was an industry
within the meaning of the Industrial Disputes Act. Ld. counsel for the Management cross - examined him on this aspect. He asked about the room rates; he asked about the Xray charges; he asked about the OPD charges so on and so forth.
10. Initially the respondent / Management examined one Sh. V.K. Garg, a Junior Engineer as MW1. This witness MW1 stated that he was working with the Management since February, 1980. He stated that the regular employees were appointed by the Recruitment Cell. He stated that in the functioning of the Management All India Institute of Medical Science there was no control of the Central Government. This witness denied a suggestion that this workman worked continuously from December, 1980 to February 22, 1986 as a "Senior Mechanic". Voluntarily he stated that the workman used to work with the Management for a period of 2 - 3 months. But after a few sentences he disclosed his ignorance regarding service details of the workman. He tried to hint in his cross - examination that the conduct of the workman was not satisfactory towards his seniors. But no such material or evidence on record could be placed by the Management. Subsequently he clearly admitted that he had not brought muster roll of this workman to the court.
11. On 25.02.2011 the Management examined one more witness Sh. R.K. Dua, an Administrative Officer as MW2. This witness placed on record the statute which was enacted by the Parliament as the AIIMS Act, 1956. His entire evidence was related to show that the Management was not an industry within the meaning of the Industrial Disputes Act. In the beginning of his cross - examination he stated that he was working with the Management since 1976. Initially he was appointed as an Operator and on the date of his appearance in the court he was an Assistant Engineer, (Electrical). When he was asked about his correct designation, he stated that he was an Assistant Engineer, (Electrical) and the words Administrative Officer in his affidavit were inadvertently written.
12. In this case the Management is the AIIMS. The claimant impleaded the AWARD Page 4 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 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 the Act gives it a 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.
13. 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 an Executive Engineer whose relation to the AIIMS Administration is not available on record. Similarly MW1 Mr. V.K. Gargand MW2 Sh. R.K. Dua have no where filed any authorization from the Director / President of the AIIMS They have 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.
14. 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.
15. 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.
16. 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 J.E. and one A.E. have come to this court to represent the AIIMS without it being in the AWARD Page 5 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 knowledge of the AIIMS administration. Who authorized them on behalf of the AIIMS; why were they not authenticated as per law; how could they bind the AIIMS by their acts - these all questions were never replied to. It is also not clearly established if in fact they were even the employees of the AIIMS as their identification papers were never placed on record.
17. 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.
18. 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.
19. 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.
20. 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.
21. Both the witnesses purportedly appeared on behalf of the Management but none of them had shown any authorization issued by the Management in their favour. The first witness was merely a Junior AWARD Page 6 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 Engineer. 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 these witnesses to the court just to complete a formality. The second witness filed his affidavit as an Administrative Officer but during the cross -examination he crumbled and admitted that he was an Assistant Engineer i.e. an A.E. in the Electrical Department. This gentleman has also not filed his authorization nor did he file his identity card or any other document to show that he was even an employee in the AIIMS. Both these witnesses who appeared in the court to represent the Management could not show their relation to the Management. In the particular circumstances of absence of their identification and authorization in accordance with the AIIMS Act, the evidence tendered by these two witnesses is held as inadmissible on behalf of the Management.
22. 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 now be considered as the only evidence 'available' 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. V.K. Garg and MW2 Sh. R.K. Dua would be considered as they could nowhere show their relationship to the respondent / Management the AIIMS This has already been observed by this court previously. ISSUE NO. 1 :
23. In this issue this court has to adjudicate upon the factum if the Management is an industry or not under the Industrial Disputes Act, 1947.
24. 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. 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).AWARD Page 7 of 19
Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04
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 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 AWARD Page 8 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 "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.
25 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.
26 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 AWARD Page 9 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 it is held by this court that for the purpose of this adjudication this respondent the AIIMS is an industry.
27. It is held accordingly.
ISSUE NO. 2 :
28. 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.
29. The workman had clearly alleged that he had worked there from 23.02.1980 to 22.12.1980 as "Wire Man" and from 23.12.1980 to 23.02.1986 as a "Senior Mechanic". 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.
30. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
31. 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 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 AWARD Page 10 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 Company, but of some other person."
32. 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.
33. 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.'
34. 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 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 : AWARD Page 11 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 '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 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 AWARD Page 12 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 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.
35. 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 the Management 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.
36. The claimant / workman has pleaded in his claim that he was a daily wager in the respondent establishment the AIIMS. He also stated that the rate of his last drawn wages was Rs.25/ per day. He kept working there till 23.02.1986 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 Management has not made any pleading on the point of date of termination of the services of the workman. The AWARD Page 13 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 rate of wages i.e. Rs.25/ per day as applicable in case of a skilled worker was also admitted by respondent / Management. 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.
37. 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."
38. 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.'
39. Now this court is of the view that nomenclature 'daily wager' does not AWARD Page 14 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 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.
40. After the admission of the Management that this workman was a 'daily 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. Also due to a poor socio-economic and educational background, a workman cannot be burdened to produce all the documents 20 - 25 years old during an adjudication. This was a burden on the Management to discharge.
41. 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.
42. 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 respondent / 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, the rate of daily wages and the AWARD Page 15 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 date of termination are held to have been proved as 23.09.1980, Rs.25/ per day and 23.02.1986 respectively as pleaded by the claimant in his claim.
43. As per versions of both the parties available on record, the workman was not allowed to work after 23.02.1986. The workman called it as illegal termination of his services while the Management pleaded that he was not offered work after 23.02.1986. 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.
44. Comparing this statute with the facts of this case, it is clear that the services of the workman Suresh Kumar Gaur were "retrenched" on 23.12.1986. The Management had not even pleded any defence available under the statute i.e. Section 2 (oo) of the Industrial Disputes Act.
45. 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 AWARD Page 16 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 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.
46. 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."
47. 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.
48. 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. RELIEF :
49. As per findings of this court as aforesaid the claimant Suresh Kumar Gaur was found serving the Management from 1980 to 1986 i.e. almost for 6 years and his last drawn salary was Rs.750/ per month. In case of his retrenchment an amount of money as calculated U/S 25 F of the Industrial Disputes Act in addition to the gratuity and bonus etc. ought to have been given to him but it was not given. On the basis of calculation @ Rs.25/ per day, he ought to have received almost a sumof Rs.3000/ as compensation U/S 25 F of the Industrial Disputes Act on the date of his retrenchment, but he was not AWARD Page 17 of 19 Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04 given so. Now it should be given to the workman Suresh Kumar Gaur.
50. Keeping in view the rate of inflation and devaluation in currency, a sum of money is likely to grow double in six years. In a particular span of time, it may be more or less than the double. Yet as an approximation this formula of getting doubled in six years can be utilized here. This amount would have grown in a progression as follows : Year 1986 1992 1998 2004 2010 2013 Amount 3,000/- 6000/- 12,000/- 24,000/- 48,000/- 70,000/-
51. As a consequence the workman Suresh Kumar Gaur should be given compensation of Rs.70,000/ against his illegal retrenchment.
52. At the time of his retrenchment he was discharging his duties similar to a permanent employee. However, the Management was taking that in the name of a daily wager. Therefore, this court instead of granting him daily back wages prefers granting him a lump sum amount against his cumulative back wages. This court deems it fit that a sum of Rs.1,50,000/ be given to him against his back wages in the last 26 years.
53. Apart from this a sum of Rs.30,000/ be granted to him as litigation expenses.
54. This court has seen entire proceedings in this case. This case had lasted 26 long years during its adjudication. A perusal of the order sheets of this court file shows that some special arrangements are needed to be made to ensure an expeditious recovery of this amount payable to the workman. This court further allows an interest @ 18% P.A. to be given to this workman from the date of this award till its complete realization.
55. The reference is answered accordingly.
56. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
57. 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.
AWARD Page 18 of 19Sh. Suresh Kumar Gaur Vs. M/s. All India Institute of Medical Science ID No. 699/04
57. File be consigned to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 03.10.2012.
AWARD Page 19 of 19