Delhi District Court
Sh. Udai Bhan Pathak vs Sh. Inder Pal Lamba on 25 September, 2012
1
IN THE COURT OF SH. BHUPESH KUMAR: PRESIDING OFFICER
LABOUR COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID NO. 44/09
In the matter of :
Sh. Udai Bhan Pathak
S/o Sh. Mahant Prasad,
C/o B2A, Gamri Extension,
Delhi. ...... Workman
VERSUS
Sh. Inder Pal Lamba
Proprietor of
M/s Paul Shamiana House
157D, Kamla Nagar,
Delhi110007. ...... Management
Date of Institution : 02.02.09
Judgment reserved : 18.08.12
Date of decision : 25.09.12
A W A R D
1.Direct industrial dispute filed by the workman, wherein, it has been submitted to the effect that he was employee of management since 1998. He was working as Helper and was getting salary of Rs. 3200/ per month. The Workman worked with the management continuously without any break and without any ID No.44/09 1/10 2 complaint to the management whereas the management has not provided him any legal facility like leave book, attendance card, annual increment etc. Management had expelled the workman from his services on 10.09.07. Workman had sent a legal demand notice on 27.11.07 calling upon the Management to reinstate the Workman, but the management had failed to comply the said notice. Workman had also filed the statement of claim before Conciliation Officer but management had not appeared there. It has been further stated that thereafter the Workman came to know that the Management intend to dispose of its entire property for which the workman had filed the civil suit for mandatory injunction in which temporary injunction was granted by Ms. Sunita Kumari, Ld. Civil Judge. In the said suit, management had admitted the workman to be its employee. On 05.08.08, workman was again inducted as Carpenter but after one month management again expelled the workman on 10.09.08 from services without any reason. Management has violated the provisions of Section 25 of I.D. Act as management has neither given any notice nor one month salary before terminating him the services. Workman has also not been provided wages for the month of August 2008. The workman was deprived of overtime wages, bonus, medical leave, casual leave, weekly off, festival leave etc. and whenever anybody demand the said facility, they were threatened with termination of the services. The workman is unemployed since the day of his termination. The prayer has been made by the workman for his reinstatement alongwith full back wages etc.
2. The management has contested the claim by filing WS and took the ID No.44/09 2/10 3 preliminary objection that the claim is not maintainable as the similar claim is pending in other court/conciliation office at Delhi. It is also not maintainable because the petitioner has not worked for 240 days in a calender year.
On merits, it was denied that workman was employee of the management since 1998. It has been submitted that management never appointed any workman and used to engage labour as per the need and requirement. It was denied that the workman ever given any notice to the management. The fact that the Workman has filed the suit for mandatory injunction as well as temporary injunction against the management in a Civil Court has not been disputed. But it has been denied that the said suit was withdrawn on the statement on behalf of management. The fact of inducting the workman again on job on 05.08.08 and the fact of expelling the workman from the job on 10.09.08 has been denied. It has been denied that the management has terminated the workman. It has been denied that the workman is unemployed since 15.09.08. Interalia, on the basis of these submissions, prayer has been made to dismiss the claim of the workman.
3. Rejoinder was filed to written statement by the workman wherein the contents of the WS were generally denied and the contents of the claim were reiterated and reaffirmed.
4. On the basis of the pleadings of the parties, following issues were framed on 11.01.10 by my Ld. Predecessor Court : ID No.44/09 3/10 4
i) Whether the workman has completed 240 days in a calender year?
ii) Whether the workman is entitled to claim the relief as claimed in the claim petition?
5. On 5.11.2011 the death certificate of the Workman was filed showing the date of death of the Workman as 21.4.2010. On the same day Smt. Bindu Pathak, wife of the Workman also lead her evidence by way of affidavit. She was cross examined and discharged.
As matter of fact, LRs of the Workman has not filed any formal application for their substitution in place of deceased Workman. As matter of fact the death of the Workman was not disputed during cross examination. It is settled law that burden of proof lies upon the person who assert existence of any fact by leading cogent evidence. It is not for the Court to collect the evidence or material for the parties. Under these circumstances the Court has no other option to answer the reference on the basis of the material available on record.
6. Smt. Bindu wife of the Workman appeared in witness box as WW1 and lead her evidence by way of affidavit Ex. WW1/A, wherein, she has deposed to the effect that her husband died on 21.4.2010. she has brought the death certificate of Workman on record as Ex. WW1/A and voter ID card as Ex. WW1/ B. Further she has deposed on similar lines to that of contents of the claim. She also relied upon the documents mark WW1/A to F. During his cross examination, she submitted to the effect that she does not ID No.44/09 4/10 5 know the contents of her affidavit. She never resided with her husband. She does not know the work of her husband but he was working with some tent house. She has no personal knowledge of the case. It was suggested to the witness that her husband did not work continuously for 240 days but the suggestion was denied.
7. WW2 is Sh. Kale Khan s/o Sh. Chhadu. He has lead his evidence by way of affidavit Ex. WW2/A, wherein he has deposed to the effect that the Workman was employee of the Management where he was also working since 1974. He has also further deposed on the similar lines to that of the claim.
During his cross examination he stated to the effect that he does not know the name of village etc. of the deceased. He does not know what is written in affidavit Ex. WW2/A. WE was closed.
8. On behalf of the management, Sh. Inder Raj Lamba was examined as MW1. This witness has led his evidence by way of affidavit as Ex. MW1/A. During cross examination, he deposed to the effect that he has already closed the management around 45 years ago. When he was running the management, he used to get business of Nirankari Mission 23 times in an year. Around 1015 persons were usually engaged by him for running of business. He did not know if workman has filed any civil suit against him at Tis Hazari Courts. He used to keep his articles like tents, bamboos etc. on site itself from where they used to shift to the other side. In the year 2007, the articles of tent house were lying at ground of Nirankari Mission Burari. His articles were never stolen from ID No.44/09 5/10 6 the said place. Usually, the labour was engaged by a person who was expert in fixing Shamianas. Vol. They used to make the payment to the said person only and not to every labour. A specific question was put to this witness that earlier in court he has stated that he knew the workman Sh. Narain to which the witness has denied and has further stated that once he appeared in Tis Hazari Courts where he was made to sign a paper. The witness further submitted that he did not know if the matter before Tis Hazari Courts relates to the dispute of this matter. It was suggested to the witness that the workman continuously worked with the management for 240 days being regular employee. ME was closed.
9. I have heard the arguments of the parties besides going through the record carefully. My issuewise findings are as under: ISSUE NO.1 : Whether the workman has worked for 240 days in a calender year?
AR for workman has submitted that the workman joined the management in the year 1998 and continuously worked with the management till 10.09.07. The workman was regular employee of the management is proved from Ex. WW1/F which are the proceedings of the civil suit inter alia filed by the workman against Sh. Inder Pal Lamba, Proprietor of the management. In the said civil suit, the statement of Sh. Inder Pal Lamba was recorded u/s 10 of CPC wherein he has admitted the workman to be his employee. The workman has also filed two ID No.44/09 6/10 7 attendance sheets Ex. WW1/C, D and identity card of the Workman issued by Nirankari Sant Samagam as Ex. WW1/E which shows that the Workman was employee of M/s Paul Shamiana House.
On the other hand, AR for management has submitted to the effect that the workman has failed to bring on record any cogent documentary proof that he has ever worked with the management for 240 days continuously in a year immediately preceding to the day of his termination.
10. Heard. File perused. The Workman has relied upon the identity card mark WW1/E. This identity card has not been issued by the Management but has been issued by convener of Nirankari Sant Samagam. No doubt against the column of department the name of the Management has been written. But there is no endorsement of the Management on this identity card. Nor the Workman has examined any witness from Nirankari Sant Samagam to prove that under what circumstances the identity card was issued showing the name of the Management against the column of department. Therefore, the identity card mark WW1/E is of no consequences and does not help the Workman in any manner.
The workman has filed the proceedings of the civil suit as mark WW1/F. The certified copy of the same has not been filed but since the pendency of the civil suit has not been disputed, therefore, the same are considered in the interest of justice. In the said civil suit, Sh. Inder Pal Lamba has admitted that the workman has worked with him. Hence, employeremployee relationship stands proved.
ID No.44/09 7/10
8 The workman has also brought on record two attendance cards as mark WW1/C and D. As matter of record, again the photocopies of said documents were brought on record. Here just for the sake of arguments, if both these documents are admitted to be genuine in the light of the civil suit mark WW1/F then the cumulative effect of all said documents is that the Workman succeeded in proving the employeremployee relationship.
But the question arises whether said documents in any manner help Workman to prove that he has worked for 240 days continuously in a year preceding to the day of his termination. For this purpose all the three documents are perused. Mark WW1/C and D are the attendance sheets for two months only. But these two documents do not reflect the exact dates when these documents were prepared. Further nothing contained in these documents which show that the Workman has worked for 240 days. The civil suit proceedings mark WW1/F are also perused carefully. But there is nothing in the said proceedings which shows that the Workman has completed 240 days.
In case Sundernagar District Panchayat & anr. vs. Jetha Bhai Pitambar Bhai, 2005 (8) SCC 450, Hon'ble Supreme Court has, inter alia, observed as under: The claimant, apart from his oral evidence has not produced any proof in the form of receipt of salary or wages for 240 days or record of his appointment or engagement for that year to show that he has worked with the employer for 240 days to get the benefit Us/ 25 I.D.Act. It is now well settled law that it is for the claimant to lead evidence to show that he had infact worked for 240 days in a ID No.44/09 8/10 9 year preceding to his termination. ............. The burden of proof having been on the Workman, he has to adduce evidence in support of his contention that he has complied with the requirements of Section 25B of I.D.Act. In the present case, apart from examining himself in support of his contention that he Workman did not produce any material to produce the fact that he worked for 240 days.
In the said judgment Hon'ble Supreme Court has relied upon the judgment in case Range Forest Officer vs S.T. Hadimani, 2002 (3) SCC 25, wherein, Hon'ble Supreme Court has held to the effect that filing of an affidavit is only his own statement in his favor and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a Workman had infact worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order of appointment or engagement for this period was produced by the Workman. On this ground alone the award is liable to be set aside.
Coming to the present matter, the Workman has filed only three documents i.e. mark WW1/C, D and E as discussed above. But none of these documents have helped the Workman to prove the fact of continuous working of 240 days. Apart from these documents the Workman has not filed any other document viz. Appointment letter, salary or wages register etc. to prove this fact. Even the Workman has not examined any other coworker or any other independent witness to substantiate its contention in this regard. The findings of the aforesaid judgments are squarely applicable on the facts of the present case. This discussion leads to the conclusion that the Workman has failed to bring on record any cogent documentary as well as verbal evidence to prove that he has worked for 240 days ID No.44/09 9/10 10 in the year preceding his termination. The issue stands decided in favor of the Management and against the Workman.
11. ISSUE NO. 2 Whether the workman is entitled to claim the relief as claimed in the claim petition?
Since it has been hold that the workman has not met with the mandatory requirement of continuous working of 240 days in a year preceding to the date of termination, therefore, the workman is not entitled for any relief. The issue stands decided accordingly.
12. Award has been passed. File be consigned to Record Room after necessary compliance by Ahlmad.
Announced in the Open Court (BHUPESH KUMAR)
th
on 25 September, 2012 Additional District & Session Judge
Presiding Officer Labour Court XVI
Karkardooma Courts : Delhi.
ID No.44/09 10/10