Delhi District Court
Sh. Kuldeep Singh vs M/S Kalra Hospital Srcnc Pvt. Ltd on 29 April, 2022
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
PRESIDING OFFICER LABOUR COURT-IX, ROUSE AVENUE
DISTRICT COURT, D.D.U. MARG, NEW DELHI
LCA No. 201/16
CNR-DLCT13-000834-2013
Sh. Kuldeep Singh
S/o Shri Balbir Singh
Age about 30 years
R/o village & P.O. Jasaur Kheri
Tehasil- Bahadurgarh,
Jhajjar, Haryana
............... Workman
Versus
M/S Kalra Hospital SRCNC Pvt. Ltd.
A-6, Tulsi Das Kalara Marg
Kirti Nagar, New Delhi-110015
............... Management
Date of Institution : 16.03.2013
Date of Order reserved on : 29.04.2022
Date of Order : 29.04.2022
ORDER
1. By this order, I shall dispose off the statement of claim/application of the workman under section 33 (C) (2) of the Industrial Disputes Act, 1947 for recovery of amount due on the management.
2. In the statement of claim/application it is submitted on behalf of the workman that management has more than 100 employees. He was employed as Security Guard w.e.f. 24.04.2009. No appointment letter was given. He is covered by ESI. His last drawn salary is Rs. 8,300/- per month. Management LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 1of23 used to take more than 8 hours per day without any over time payment of wages at the double rate. This demand was not made despite oral request on which the workman approached Labour Department Karampura, New Delhi. The management did not produce any documentary evidence who was duty bound to maintain separate over time register. No wage slip was issued to the workman. The workman has filed Annexure-A with statement of claim as per which he is entitled to draw over time wages. The service of the workman was illegally terminated on 23.11.2012.
3. In the reply/WS filed on 13.09.2013 the management has admitted the claim of workman at point no. 1 and 2 which includes his last drawn salary, his date of appointment and management has more than 100 employees. However, appointment letter is claimed to have been issued on 01.07.2010. It is submitted that it was mutually agreed between the workman and the management that they will be paid higher salary than minimum wages which would be inclusive of over time wages. It is submitted that service of the workman was never terminated.
4. The management has filed another reply/WS which is additional WS dated 25.07.2014 allowed to the management vide order dated 20.10.2014. In the another WS submitted the objection are taken by the management that this application is filed after 3 years. No objection was raised earlier by the workman for over time wages. The workman has requested the management that he is residing at Haryana and it is extremely difficult for him to perform duties everyday due to non-availability of transport due to shifts. On such request the workman was assigned duty for 12 hours in which 8 hours were for regular duty and four hours extra for which workman was paid full day pay or compensatory off in lieu of performance of extra duty. No objection LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 2of23 was raised. The claimant had rarely performed overtime duty under exceptional circumstance. Overtime was paid along with monthly salary.
5. It is submitted by the management that the claimant has not detailed over time work. The period mentioned is vague and baseless. Further the employee has to preserve the record for one year only under Rule 14 of Clause 5 of Delhi Shops and Establishment Rules, 1945. It is further submitted on reply on merits that on compassionate ground he was allowed to work 12 hours a day from April 2011 in lieu of which compensatory off was given for working additional four hours of extra duty. The workman was also given four days paid off in every month. Whenever over time was worked under the exceptional circumstance then overtime was paid with monthly salary. Prior to April 2011 only 8 hours of duty was performed. Attendance record prior to April 2011 is not available which was maintained for about 2 years under Delhi Shops and Establishment Act and Rules. No oral or written request was made by the workman for overtime wages. The workman was unauthorizedly absent from 23.11.2012. Accordingly management has prayed that the claim be dismissed.
6. Replication is filed by the workman in which workman has reaffirmed the averments made in the claim and denied the averments of the management. It is further submitted that management failed to produce necessary overtime record under Minimum wages Act when asked by Labour Inspector on 18.01.2013. The management has categorically stated before Labour Inspector that they shall not take workman back on duty till he withdraw for claim of overtime wages.
7. On the pleading of the parties and averments made following issues LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 3of23 were framed in the application on 27.03.2015 which are as under :
(i) Whether the present claim filed by the claimant is not maintainable as alleged by the management ? OPM
(ii) Whether the claimant is entitled to the relief as claimed in the petition under Section 33 (C) (2) of the I.D.Act ? OPW
(iii) Relief.
8. The workman has got examined himself as WW-1 being the sole witness and vide separate statement of AR the workman's evidence was closed on 18.09.2017. The sole witness MW-1 Sh. Rajesh Kohli was examined on 20.12.2019 and vide separate statement of AR of the management the ME was closed on 20.12.2019.
9. Final arguments are heard on behalf of parties present and record perused.
9.1 The AR for workman has relied and filed following citation:
(i) Municipal Corporation of Delhi v. Ganesh Razak & Anr. in Civil Appeal No. 7138/1004 9.2 The AR for management has relied and filed following citation:
(i) Gujarat Water Supply and Sewerage Board & Ors. v. Ketanbhai Dinkarray Pandya 2003 GLH (3) 261
10. The issue-wise findings are as follows:-
11.ISSUE NO.(i) & (ii)
(i) Whether the present claim filed by the claimant is not maintainable as alleged by the management ? OPM LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 4of23 AND
(ii) Whether the claimant is entitled to the relief as claimed in the petition under Section 33 (C) (2) of the I.D.Act ? OPW 11.1 There is no dispute to the last drawn wages for a sum of Rs 8300/- per month as on 23.11.2012. The workman has claimed that he was working overtime since 24.04.2009 till 25.11.2012 at various level of wages drawn during such period detailed in Annexure-A whereas on the Annexure it is written as Annexure-I. The workman has deposed as WW1 relying on Annexure-I. 11.2 The management has relied on statement of workman in cross examination dated 18.9.2017 where the workman has deposed that he used to work for 24 hours from 9:00 AM to 9:00 AM next day. It is admitted as correct that he has not filed any document on record to show that he has so worked. The deposition of working for 24 hours is not the pleading of the workman nor it is case of the management therefore this deposition is beyond the pleadings of both the parties and cannot be relied upon hence it is discarded. In evidence by way of affidavit the workman has deposed that the management used to take work from him for more than 8 hours a day. However in Annexure-I which is relied on by the workman he has mentioned number of days on which four hours extra work was taken from him by the management. However, during further cross examination the management has suggested to the workman that 12 hours work was taken from him and thereafter one day complete off was given. The workman has denied that 12 hours of duty was assigned to him on his request. The workman does not have any written document to show that he has made any complaint against management for non-payment of over time wages. It is deposed that on LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 5of23 03.11.2010 he has written a complaint to Sh. Deepak Bhanot who did not give workman any receipt. However, he has voluntarily deposed that he has attendance sheet of the Security Guard for the month of November 2012 in two pages which is Mark-WX. This document is denied by the management.
11.3 It was pointed by MW-1 in cross examination the order dated 30.11.2018 on application under Section 11 (3) of Industrial Disputes Act, 1947 dated 20.03.2018 to which affidavit was filed by the management on 23.08.2019. The direction were given to the management to produce document on record. In the said affidavit it is affirmed by the HR Manager of the management that except the attendance record w.e.f. April 2011 to November 2011 the management does not have any wage register/sheet. All record is not available with the management and the leave record is not available for any period. It is further affirmed that the management does not have record of Rishipal from April 2012 to November 2012. It is noted that this case was filed before the present Court on 16.3.2013. The WW-1 has deposed that he was never issued any wage slip by the management. On this aspect there is no cross examination on behalf of management. MW-1 has also deposed that there is no wage slip issued to the workman. MW-1 has admitted as correct in cross examination that the wage slip reflects the over time done by the particular workman in a particular month. It is further admitted as correct that the leave record shows the leaves taken by the workman in a month. The demand letter is EX. WW1/3 dated 19.01.2013 which mentions that duties were taken for 12 hours in a day and details are also mentioned. However postal receipt of sending this document on the management is not filed and the express denial of receipt of this document by the management it cannot be said that the document is received by the management.
LCA No. 201/2016Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 6of23 11.4 The judgment between both the parties filed on record dated 20.11.2018 is admitted judicial record between both the parties and which for the purpose of reference is marked as Ex. P-1 between both the parties. Vide the said judgment it was held that the service of the workman was not illegally terminated by the management. Under issue no.1 mention dispute of over time wages between the parties. However, the present dispute was filed earlier therefore even believing the management that it had to preserve record for one year then the management must have record with it at least one year prior to the dispute entered between the parties. It is recorded in judgment Ex. P-1 at page no.3 that on 08.1.2013 the matter was fixed before Labour Inspector. Therefore the management must have with it record preserved at least one prior to 8.1.2013 when the dispute was pending between the parties. In fact the management has not produced this record before the present court claiming ground of limitation under Delhi Shops and Establishment Act. Whereas at least this record must have been produced by the management which is claimed by it that the said record was statutorily required to preserve by it under Delhi Shops and Establishment Act. As per Rule 14 of Delhi and Shops Establishment Act, 1954 under Sub-Rule (1A) every register shall be duly bound and its pages serially numbered. In the present case Ex.MW1/2 is not serially numbered and it is not proved on record that it was duly bound. Hence correct preparation of Ex.MW1/2 is doubtful. Other than this the management is required to preserve registers, records and notices relating to any calendar year till the end of following year under Sub-Rule (5) of Rule 14 of Delhi Shops and Establishment Rules, 1954. Hence the record required to be preserved by the management atleast 2 years prior from the date of alleged dispute.
11.5 Other than this management has not placed any order on record LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 7of23 showing that it has destructed the relevant record. However under any circumstance the management is required to preserve record atleast two year prior from the date of raising of dispute. In the present case when the dispute was raised vide demand letter Ex.WW1/3 dated 19.01.2013 than management must have record with it atleast two year prior to such date which means the record must be available from January 2011 to December 2012 from 01.1.2011 till 23.11.2012. Therefore the plea of the management that except attendance record from April 2011 to November 2012 it does not have any record cannot be accepted. In the name of attendance record/muster roll produced as Ex. MW1/2 does not bear the signature of the workman. It appears that some persons have written 'P' as present for the presence of workman. Since the workman has not signed this register nor the person who has prepared this register in his own handwriting has been called by the management therefore it cannot be said that this record was proved by the management as primary evidence. The MW-1 has not deposed that he has prepared the muster roll. Therefore neither the complete record is produced by the management nor the muster roll is proved on record. It is only a self serving record prepared by the management which cannot be taken as a proof of appearance of workman on such days. In absence of this there is no evidence on record if filed by the management to show the days on which the workman has done duty or the hours under which the duty was performed. The management is bound to prepare and maintain register/muster roll under Section 25 D of Industrial Disputes Act, 1947. The management has to provide in such register marking of entries by the workman who was present for work at the appointed time during normal working hours. The management has not prepared the attendance register in this manner. Therefore Ex. MW1/2 furnished by the management does not satisfy the obligatory duty levied on the management. Therefore it is held that LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 8of23 management has failed to prepare necessary muster roll in mandatory statutory from and on failure of production of which adverse inference is drawn against the management despite directions vide order dated 30.11.2018. The Ex. MW1/2 is rejected as proof in place of muster roll. The relevant citation is reproduced hereasunder:
Union Of India vs Ibrahim Uddin & Anr on 17 July, 2012 in the Hon'ble Supreme Court Of India Civil Appeal No. 1374 of 2008
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Presumption under Section 114(g) of the Evidence Act :
6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide:
Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126).
7. However, in Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96, a view has been expressed that it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied, it is for him to apply for interrogatories/inspections and production of documents. If he fails to do so, neither he nor the Court at his suggestion, is entitled to draw any inference as to the contents of any such documents.
8. In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy & Ors., AIR 2003 SC 3342, this Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travelling together in the vehicle and presumption had been drawn only on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also:
Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; and Takhaji LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 9of23 Hiraji v. Thakore Kubersing Chamansing & Ors., AIR 2001 SC 2328).
9. In Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681, this Court has taken the view that the law laid down by this Court in Gopal Krishnaji Ketkar (supra) did not lay down any law, that in all situations the presumption in terms of clause (g) of Section 114 of the Evidence Act must be drawn.
10. In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das & Anr., AIR 1967 SC 256, this Court held that mere withholding of documentary evidence by a party is not enough to draw adverse inference against him. The other party must ask the party in possession of such evidence to produce the same, and in case the party in possession does not produce it, adverse inference may be drawn:
"It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent case."
11. In Ramrati Kuer v. Dwarika Prasad Singh & Ors., AIR 1967 SC 1134, this Court held:
"It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiffs- respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the court, and in the circumstances no adverse inference could be drawn from the non-production of accounts." (See also:
Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339).
12. In Smt. Indira Kaur & Ors. v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074, the lower courts drew an adverse inference against the appellant- plaintiff on the ground that the plaintiff was not ready and willing to perform his part of the contract. The question arose as to whether the party had the means to pay. The court further held that before the adverse inference is drawn against a particular party, the conduct and diligence of the other party is also to be examined. Where a person deposed that as he had deposited the money in the Bank and the other party did not even ask as on what date and in which Bank the amount had been deposited and did not LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 10of23 remain diligent enough, the question of drawing adverse inference against such a person for not producing the Pass Book etc. cannot be drawn.
13. In Mahendra L. Jain & Ors. v. Indore Development Authority & Ors., (2005) 1 SCC 639, this Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so.
14. In Manager, R.B.I., Bangalore v. S. Mani & Ors., AIR 2005 SC 2179, this Court dealt with the issue wherein the Industrial Tribunal directed the employer to produce the attendance register in respect of the first party workmen. The explanation of the appellant was that the attendance registers being very old, could not be produced. The Tribunal, however, in its award noticed the same and drew an adverse inference against the appellants for non-production of the attendance register alone. This Court reversed the finding observing:
"As noticed hereinbefore, in this case also the respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellant on the premise that they have failed to prove their plea of abandonment of service" (See also: A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC 355; and Pratap Singh & Anr. v. State of M.P., AIR 2006 SC
514).
15. Order XI CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue. Therefore, a party has a right to submit interrogatories relating to the same matter in issue. The expression "matter" means a question or issue in dispute in the action and not the thing about which such dispute arises. The object of introducing such provision is to secure all material documents and to put an end to protracted enquiry with respect to document/material in possession of the other party. In such a fact-situation, no adverse inference can be drawn against a party for non-production of a document unless notice is served and procedure is followed. Under Rule 14 of Order XI, the court is competent to direct any party to produce the document asked by the other party which is in his possession or power and relating to any material in question in such suit. Rule 15 Order XI provides for inspection of documents referred to in pleadings or affidavits. Rule 18 thereof, empowers the court to issue order for inspection. Rule 21 thereof provides for very stringent consequences for non-compliance with the order of discovery, as in view of the said provisions in case the party fails to LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 11of23 comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a plaintiff, be liable to have his suit dismissed for want of prosecution and if he is a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect. Thus, in view of the above, the suit may be dismissed for non-compliance of the aforesaid orders by the plaintiff and the plaintiff shall also be precluded from bringing a fresh suit on the same cause of action. Similarly, defence of the defendant may be struck off for non-compliance of such orders.
16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non- production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.
17. In the instant case, admittedly, the plaintiff/respondent no.1 during the pendency of his suit had made an application before the authorities under the control of the appellant/defendant no.1 to make the inspection. However, he was not permitted to have any inspection. The plaintiff/respondent no.1 did not submit any interrogatory statement or an application for making inspection or for production of the document as provided under Order XI CPC. In such a fact-situation, in view of the law referred to hereinabove, it is not permissible for the first appellate Court or the High Court to draw any adverse inference against the appellant/defendant no.1.
In case titled Harish Mansukhani vs Ashok Jain on 19 November, 2008 Judgment delivered on in RFA 4/2008 wherein it was held by Hon'ble High Court of Delhi as under:
21. An adverse presumption can be drawn against a party who does not produce a document in his possession. Thus, before a LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 12of23 presumption can be drawn against a party called upon to produce a document, it has to be proved that the document production whereof was sought was in the possession of the party concerned.
The defendant had denied that any bill was raised on him. Thus, without proving that the plaintiff had raised the bills on the defendant, in that, without establishing that physical custody of the bills was with the defendant, no adverse inference could be drawn against the defendant.
22. No doubt, not responding to a legal notice is a piece of evidence wherefrom an adverse inference can be drawn against the noticee. But, the said adverse inference is no more than presumptive evidence which by its very nature is weak evidence. Where the totality of the evidence weighs in favour of the person issuing the notice, non response to a notice by the noticee can be put in the scales to reassure the Court that contemporaneously the noticee kept silent evidencing a kind of acquiescence. But, the quality of evidence led to prove the case positively and its probative value has always to be kept in mind and given primacy.
23. A plaintiff has to prove his case and stand on his own legs. No doubt, the defendant did not produce his books of account but that does not mean that the plaintiff must succeed on said account.
24. The evidence led by the plaintiff is shaky. The variance between what the plaintiff pleaded and attempted to prove is a serious infirmity in the case of the plaintiff. Unfortunately, the learned Trial Judge has eschewed reference to the quality of the evidence led; the variance between pleading and proof; as also has ignored certain essential features of the evidence to which we have referred to in our decision, thereby rendering the impugned judgment and decree liable to be reversed.
11.5.1 Hence the management must have produced the record from 01.1.2011 till 23.11.2012 which was the date of termination of the workman. The burden of proof was on the workman to show that he has worked overtime for so many days. However the workman has moved application u/Sec. 11(3) of Industrial Disputes Act, 1947 which was disposed vide order dated 30.11.2018 with the observation that the documents sought by the workman are wage register, overtime sheets, leave records to which management has given vague reply as management did not maintain individual overtime register. The documents were found just and necessary for decision of the case and direction was given to the management to LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 13of23 produce the documents. However the documents produced by the management i.e. attendance record/muster roll is not in terms of law laid down u/Sec. 25D of Industrial Disputes Act, 1947. The entries are not made in the hand of the workman who presented themselves for work. Neither register of overtime in Form B of Minimum Wages (Central Rules), 1950 was produced which was required to be maintained u/Rule 26 of the said Rules. Rule 25 of the said Rules mentions about maintenance of register of overtime which is also not produced by the management. The Form D details the form in which the muster roll had to be prepared u/Sec. 26 of Minimum Wages Act, 1950. Thereby the onus of proof was shifted on management which management has failed to discharge.
The onus of proof of production of muster roll was on the management u/Sec. 25D of Industrial Disputes Act, 1947 and the relevant citation is reproduced hereasunder:
The citation titled as Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda AIR 2010 SC 1236. The relevant para is reproduced hereasunder:
14) Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service.
The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :
"However, applying general principles and on reading the aforesaid 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.LCA No. 201/2016
Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 14of23 This burden is discharged only upon the workman stepping up 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 earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15) Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is observed:
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 15of23 is withheld."
16) It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The section reads-
"25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
The labour court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference.
11.5.2 However the management was not required to statutorily keep the record prior to 01.1.2011 and therefore burden of proof of having prepared overtime during such period shifts on the workman as being old record management does not have record which is deposed in evidence by way of affidavit Ex.MW1/A. Workman has not led any evidence that he has worked for 12 hrs. every day for 15 days in a month prior to 01.01.2011. Burden of proof of which was on the workman and since prior to this period the management was not statutorily required to preserve this document therefore the onus has not shifted on the management. Therefore it is held that in respect of such period workman has failed to discharge burden of proof levied upon him. In cross-examination of WW1 dated 18.09.2017 it is LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 16of23 suggested that management used to take work 12 hrs. a day and thereafter management used to give one day complete off. The giving of weekly off by the management is not proved on record. It is deposed by MW1 that payment towards weekly off and overtime was paid alongwith monthly salary. It is merely a deposition and self serving statement by the management. If the overtime was paid then management is required to produce the necessary register/wage register/record to show that such wages were paid for such work. No material was placed on record to make a distinction between that overtime work was taken from workman and weekly off was provided on which day. The deposition by the management at para no. 5 of evidence by way of affidavit in Ex.MW1/A mentions that weekly off were paid with the salary. However in a month there could be holiday and also weekly off without production of necessary record it cannot be said that such payment was made by the management. Further, no record of payment of earned wages is produced by the management alongwith the leave record. In these circumstances of the case it has comes out that from the period 01.1.2011 till 23.11.2012 the management has taken work from workman 15 days in a month. Hence he was not paid money for atleast for 4 weekly off in a month and on such days the workman had worked extra for 4 hours overtime for which workman is required to be paid full days salary. Hence the salary of the workman due for one month comes out on average for a period of 8 days. In the month of November 2012 the workman had not worked for complete month and thereby only there are 3 weekly off and therefore by working overtime and on weekly off he could have earned 6 days salary in that month. Hence the total days salary for the workman for the year 2011 is 96 days and for the year 2012 is 72 days. Hence the overtime salary is required to be paid to this workman is salary for the 168 days. Hence the salary due to the workman is 5 months and 18 days in total computing at the rate of last drawn LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 17of23 salary which is Rs.8,300/- per month. The total amount due comes to the workman for a sum of Rs.47,900/-.
11.5.2 Since the workman has failed to prove necessary overtime work and due payment before 01.1.2011 burden of proof of which was on the workman. Therefore it is held that workman is held not entitled for money from the management for this period.
11.6 It is submitted by ld. AR for the management that the present application does not lie before the present Court for which reference is required u/Sec. 10 of Industrial Disputes Act, 1947. For this purpose Gujarat Water Supply and Sewerage Board & Ors. v. Ketanbhai Dinkarray Pandya 2003 GLH (3) 261 is relied upon at para no. 40. Equivalent citations: (2003) 3 GLR 2281, (2004) ILLJ 114 Guj wherein it was held as under:
18. Before the Labour Court it was submitted by "the Board"
that it had no jurisdiction to straightaway entertain the applications under Section 33C(2) of the I.D. Act without pre- adjudication of their claim regarding overtime wages. It was also submitted that out of 43 workmen only one workman, Shri Ketan Pandya, working as Pump Operator was examined and his evidence was wholly unreliable. As against that there was an evidence of Shri Suresh Chauhan, Deputy Executive Engineer of "the Board", who has clearly stated that "the Board" was not taking overtime work from any of the workmen. It was, therefore, submitted before the Labour Court by "the Board" that even if the Labour Court comes to a conclusion that application under Section 33C(2) filed by the workmen regarding the claim of over- time wages are maintainable without pre-adjudication of their claim, even then, there is no reliable evidence led by the workmen to show that they had worked overtime for several years.
40. We have already reproduced the relevant averments made by the workmen in their Recovery Applications before the Labour Court and the reply filed by the employer-Board and the material part of the evidence led on behalf of the workmen and the employer. We are fully satisfied that the employer-Board LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 18of23 had raised bonafide dispute before the Labour Court regarding the claim of overtime wages of the workmen, which should have been first adjudicated either by the competent authority under the Minimum Wages Act or by the Labour Court in reference proceedings under Section 10 of the I.D. Act. In absence of it all the recovery applications directly filed before the Labour Court by the respondents- workmen under Section 33C(2) of the I.D. Act before the Labour Court were not maintainable. Thus, therefore, on this ground alone the impugned common judgment and award passed by the Labour Court and the common judgment and order passed by the learned single Judge of this Court dismissing all the writ petitions were required to be set aside.
11.6.1 The AR for the workman relies on citation Municipal Corporation of Delhi v. Ganesh Razak & Anr. in Civil Appeal No. 7138/1004 dated 20.10.1994 at para no. 8 and submits that present Court has jurisdiction to decide the present dispute. The relevant para is reproduced hereasunder:
8.Reference may be made first to the Constitution Bench decision in Central Bank of India Ltd. v. PS. Rajagopalan on which Shri Rao placed heavy reliance. That was a case in which the question of maintainability of proceedings under Section 33- C(2) of the Act was considered in a claim made by the workmen on the basis of the Sastry Award. The employer disputed the claim of the workmen on several grounds including the applicability of Section 33-C(2) of the Act. It was urged that since the applications involved a question of interpretation of the Sastry Award, they were outside the purview of Section 33-C(2) because interpretation of awards or settlements has been expressly provided for by Section 36-A. This objection was rejected. This Court pointed Out the difference in the scope of Section 36-A and Section 33- C(2) indicating that the distinction lies in the fact that Section 36-A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33-C(2); and whereas Section 33-C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36-A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and tile employer and the appropriate Government 'Is satisfied that the dispute deserves to be resolved by reference under Section 36-A. In this context, this Court also indicated that the power of the Labour Court in a proceeding under Section 33- C(2) being akin to that of the Executing Court, the Labour Court is competent to LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 19of23 interpret the award or settlement on which a workman bases his claim under Section 33-C(2), like the power of the Executing Court to interpret the decree for the purpose of execution. Relevant extract from that decision is as under: (SCR pp. 154-
155) "Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the Executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the Executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under Section 33-C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under Section 33-C(2), it would, in appropriate cases, be 1 (1964) 3 SCR 140:
AIR 1964 SC 743:(1963) 2 LLJ 89 open to the Labour Court to interpret the award or settlement on which the workman's right rests."
This decision itself indicates that the power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the workman's right rests, like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents.
11.6.2 In view of above citation it is held by Hon'ble Supreme Court of India that the determination u/Sec. 33(C)(2) of Industrial Disputes Act, 1947 does not extend to determination of dispute of entitlement or when there is no recognition of the said right by the employer. The Hon'ble High Court of Gujarat in Gujarat Water Supply and Sewerage Board (supra) case has also relied on citation titled MCD v. Ganesh Razak. However the facts in the present case are distinguished. The plea in Gujarat Water Supply(supra) at para no. 18 by the board was that it was not taking over time work from any of the workman. Therefore pre-adjudication of right of workman for LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 20of23 overtime work was required for which application of Section 10 of Industrial Disputes Act, 1947 has become mandatory and such claim cannot be directly filed before Labour Court u/Sec. 33(C) (2) of Industrial Disputes Act, 1947.
However in the present case management has specifically pleaded in the written statement at para no. 4 on merits in the written statement that prior to April 2011 under exceptional circumstance the workman was performing overtime for which he was paid overtime. Management has also claimed that all overtime wages were paid with the monthly wages. With such claim of the management proves that overtime work was taken by the management. It is also proves that overtime work was paid by the workman. Therefore there comes pre-existed right for taking overtime work and consequential payment thereto the workman. Hence there is no dispute between the parties as to pre- existence right of overtime work. Hence the present application u/Sec. 33(C) (2) of Industrial Disputes Act, 1947 can be rightly filed by the workman before the present Court.
11.6.3 The claim of the management that it is belated claim and not filed in a reasonable time is disallowed in view of the fact that there is no limitation prescribed for the workman to claim his wages u/Sec. 33(C) (2) of Industrial Disputes Act, 1947 and the relevant citation is reproduced hereasunder:
In case titled Union of India (through General Manager, Western Railway) v. M. Narayana & Ors. 2001 (3) L.L.N. 946 = Equivalent citations: 2001 (90) FLR 210, (2002) IVLLJ 912 Bom from Hon'ble High Court of Bombay at para no. 8 which is reproduced hereasunder:
8. There is no doubt about the proposition of law that there is no period of limitation prescribed under Section 33-C(2) of the Industrial Disputes Act, 1947 to claim money/benefits from the employer. A workman can file such application even after 50 years claiming over time wages for the overtime work done by him while in the service of the employer, 50 years back.
Theoretically reading the letters of law one would be right to opine that there is no limitation provided for in the said LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 21of23 provision and the Courts cannot legislate or read any law of limitation in the said section. In my opinion the intention and purpose of the legislature in not providing for limitation is that if the workman claims his dues such as difference in wages or other amounts while in employment he would jeopardise his employment itself. It was therefore contemplated that if a workman applies for his dues within a reasonable period the claim should not be denied only on the ground of delay. The intention was -that no real, bonafide and genuine claim should suffer merely because there is some time lag. I am sure that the legislature by not prescribing the limitation intended to encourage stale and old claims to be raked up after decades. We also must realise the object of the Industrial Disputes Act was and is early and expedient settlement of industrial disputes and not to keep them alive for years or decades together. If that is done the whole purpose of the Act would be defeated, In my opinion the claim for overtime wages filed by the workmen in the year 1991 for the period from 1973 to 1979 cannot be encouraged. It must be remembered that in the huge railway administration it becomes unmanageable to maintain and preserve such old records to meet such stale and old claims of the so-called overtime work. During such a vast period sea- changes take place. Though there is no limitation prescribed under Section 33-C(2) of the Act there is absolutely no explanation given by the workmen why they had kept quiet for a period of more than 18 years. A reasonable lapse of time, perhaps need not be explained. But when there is such an unreasonable delay in the lodgment of the claims it becomes the duty of the claimants to put forward some plausible reason why they were interested to file such a claim after such a very long lapse of period. Ordinarily the workmen are not expected to say anything about the period of limitation, however, the present is an extraordinary and unusual case of delay of 18 years, they are certainly bound to say something about such unusual delay in claiming overtime wages. There is not even a whisper in the application filed by the workmen to explain their conduct of filing the claim, after the lapse of 18 years.
Hence the claim as filed by the workman is within the prescribed period of limitation.
Accordingly issue no. 1 and 2 are decided against the management and in favour of workman.
12.ISSUE NO. (iii) Relief LCA No. 201/2016 Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 22of23 12.1 In view of findings under issues above the order is passed accordingly wherein workman is held entitled to recovery of overtime wages against the management for the year 2011 and 2012 for a sum of Rs.47,900/- with interest @ 9% p.a. from the date of filing of this claim till the payment of due amount. The workman is also awarded the cost of litigation for a total sum of Rs.20,000/- under Sub-Clause (7) of Section 11 of Industrial Disputes Act, 1947. Accordingly application stands disposed off.
File be consigned to record room after due compliance.
Announced in the open Court JOGINDER Digitally signed by
JOGINDER PRAKASH
PRAKASH NAHAR
on 29.04.2022. NAHAR
Date: 2022.04.29
16:44:11 +0530
(JOGINDER PRAKASH NAHAR)
PRESIDING OFFICER:LABOUR COURT-IX
ROUSE AVENUE DISTRICT COURT
NEW DELHI
LCA No. 201/2016
Sh. Kuldeep Singh Vs. M/S Kalra Hospital SRCNC Pvt. Ltd. Page no. 23of23