Delhi District Court
Sh. Daya Chand & Ors. vs . M/S. Damini Exports Id No. 1071/04 on 3 November, 2012
Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0351232004
F.24(529)/2004/Lab.-1123 - 27 dated
Reference No.
30.06.2004.
Type of Case Reference Case.
Date of Institution 25.08.2004
Evidence concluded on 27.02.2012
Final Arguments heard on 16.07.2012
Date of Award 03.11.2012
WORKMAN Vs. MANAGEMENT
Sh. Daya Chand & 3 Others, C/o M/s. Damini Exports, I - 93,
Bhartiya Readymade General Lajpat Nagar, New Delhi - 24.
Mazdoor Trade Union, B - 155, Also at :-
Gole Kuan, Tehkhand, Okhla L55 , Shri Niwas Puri, Private
Phase - I, New Delhi - 20. Colony, New Delhi - 65.
PRESENT:
None for the parties.
AWARD :-
1. The appropriate Government sent a reference no. F.24(529)/2004/Lab.1123 - 27
dated 30.06.2004. to this court in relation to the illegal termination of the services
of the claimant /workman Sh. Daya Chand and 3 others (Annexure 'A'
by the Managements M/s. Damini Exports. The reference specifically
pointed out as follows :
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Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04
"Whether the services of Sh. Daya Chand S/o
Sh. Rewti Lal and three others (Annexure 'A')
attached were terminated illegally and / or
unjustifiably by the Management and if so, to
what relief were they entitled and what directions
were necessary in this matter?"
2. As per claim four workmen Daya Chand, Mohd. Kayum, Smt. Geeta and Smt.
Sushma raised an industrial dispute against the Management M/s. Damini Exports.
They claimed their posts, last drawn salaries and service period as follows :
Name of the workman Designation Wages / Salary Service Period
1. Sh. Daya Chand Management Checker Rs.5050/ P.M. From February, 1994 till
& Packing 18.08.2003.
2. Sh. Mohd. Kayum Sample Man Rs.3000/ P.M. From November, 1993 till
17.08.2003.
3. Smt. Geeta Thread Cutter Rs.2700/ P.M. From December, 1996 till
17.08.2003.
4. Smt. Sushma Thread Cutter Rs.2900/ P.M. Frm January, 1990 tiill
17.08.2003.
It is claimed by these workmen that on 17.08.2003 the Management terminated
their services without any reason or notice or notice pay etc. The matter was raised
by these workmen through their union but when no solution was found they brought
it before this court for adjudication through proper channels.
3. The Management M/s. Damini Exports file a written statement / reply to the claim
of these workmen. The Management took several preliminary objections in its
written statement :
➔ that these workmen were not regular employees of the Management;
➔ that they did not work for 240 days in the previous calender year;
and
➔ that they started absenting from their duties.
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Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04
On merits the Management proposed their designation, last drawn salaries and
service tenure as follows :
Name Designation Salary per month Service Period
1. Sh. Daya Chand No Rs.5,050/ PM. 01.04.1998 to 11.08.2003
Left without information.
2. Sh. Mohd. Kayum No Rs.3,600/ PM. 01.12.1997 to 30.07.1998
Left without information.
Reemployed from 17.08.1998 to 16.08.2003,
did not complete 240 days as per habitual
absence & Left without information.
3. Smt. Geeta No Rs.2,800/ PM. 18.04.2003 to 16.08.2003. not completed 240
days.
Left without information.
4. Smt. Sushma No Rs.2,900/ PM. 01.12.1997 to 12.10.1998.
Left without information.
Reemployed from 27.10.1997 to 16.08.2003.
Left without information.
4. In addition to this the Management pleaded that these workmen borrowed different
sums of money from the Management and instead of repaying the aforesaid loan
they all stopped attending to their services.
5. On the basis of pleadings of the parties, the ld. Predecessor vide its orders dated
15.09.2005 framed the following issue :
1. Relief in terms of reference.
6. After the issues, the workmen examined them in support of their claims. The
claimant / workman Daya Chand examined him as WW1. The workman Smt.
Sushma examined her as WW2. The workman Smt. Geeta examined her as WW3
and the workman Mohd. Kayum examined him as WW4. All these workmen
reiterated their claims in material aspects in their evidence affidavits.
7. During the course of cross - examination WW1 Daya Chand admitted
that he was appointed by the Management on the recommendation of
one Sh. Mahesh Chander Gupta a C.A. No appointment letter was
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Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04
issued to him. He joined the Management in February, 1994. He further admitted
that he had taken advance of Rs.10,000/ from the Management out of which a sum
of Rs.3,700/ was still unpaid.
8. In her cross - examination WW2 Smt. Sushma stated that in December, 1997 she
was getting a salary of Rs.2,400/ per month. She stated that at the time of
termination of her services, no termination letter was issued to her. She stated the
names of several other workers who used to work during the course of her
employment. She admitted her signatures at documents Ex. WW2/M1, Ex.
WW2/M2 and Ex. WW2/M3.
9. During her cross - examination WW3 Smt. Geeta stated that she joined the
Management on 16.09.1996 at an initial salary of Rs.1400/ per month. She further
stated that her last drawn salary was Rs.2,750/ per month. She admitted her
signatures on Ex. WW3/M1 which is an attendance register for a few months of the
year 2003. She admitted to have taken an advance of Rs.1,000/ from the
Management but stated that this amount was deducated from her salary.
10. Sh. Mohd. Kayum WW4 in his cross-examination had admitted his
signatures on Ex. WW4/M1 i.e. the attendance and wages registers.
11. After this the Management examined one Sh. Ram Tirath Handa. He earlier filed an
affidavits which contained a number of additions and alterations. Therefore, on
12.02.2009 the ld. Predecessor directed him to file a fresh affidavit. He filed the
same and examined him as MW1 on 30.09.2009. He relied upon five documents.
The document Ex. MW1/1 is a registration certificate. Document Ex. MW1/2 are
the photocopies of the attendance registers. Document Ex. MW1/3 is the letter from
the office of the Director General of Investment and Registration (MRTP
Commission). Document Ex. MW1/4 are the vouchers of the advance payment of
the workmen running into 3 pages. Document Ex. MW1/5 is the UPC Slip. During
his cross - examination he stated that he was educated up to tenth class.
He admitted not to have issued appointment letters to these workmen.
He further stated that these workmen stopped attending their duties and
he did not conduct any domestic enquiry against them for such absence.
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Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04
12. Thereafter one Sh. Mahesh Chander Gupta as MW2. He stated to be a part time
C.A. of the respondent / Management. he deposed regarding the dates of
appointment of these workmen. He stated that workman Daya Chand was appointed on 01.04.1998 with the last drawn salary of Rs.5,050/ per month. He stated that this workman started absenting from duties w.e.f. 12.08.2003 without any prior intimation to the Management. During his cross - examination he stated that the business of the Management was being run at P - 16, Shriniwaspuri, New Delhi. He further stated that the Management was working with 4 - 5 machines and 7 - 8 employees.
13. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
14. 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 Company, but of some other person."
15. 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 AWARD Page 5 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 Labour Court & Anr. 2006 LLR 851.
16. 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.'
17. 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 : '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 AWARD Page 6 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 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 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 AWARD Page 7 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 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.
18. 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.
ISSUE NO. 1 :
19. In this issue this court has to adjudicate upon the factum if the services of Sh. Daya Chand S/o Sh. Rewti Lal and three others (Annexure 'A') attached were terminated illegally and / or unjustifiably by the Management and if so, to what relief they were entitled and what directions were necessary in this matter.
20. This matter in hand is to address all the dimensions of an industrial dispute under adjudication. It has to adjudicate on the designation of all these workers, the date of appointment of these workers, their last drawn salaries and the date of their alleged termination. Only after ascertaining all these variables anything can be said regarding this AWARD Page 8 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 reference.
21. As it is clear from the law relied upon by this court as aforesaid, it was a primary burden on the workmen to prove the details of their employment with the Management. All the documents relied upon by these workmen are perused and these are of the nature of letters to the Assistant Labour Commissioner or the Conciliation Officer and demand notice etc. These are all unilateral documents and can be prepared by anyone at any point of time. They do not provide any legal credence to these claims. There are four documents / letters available on record purportedly written by the Management to these workmen. Such letter to workmen Smt. Geeta, Smt. Sushma and Mohd. Kayum were written on 23.08.2003 and letter to workman Daya Chand was written on 16.08.2003. In these letters the Management had requested to these workmen to come back and join their duties with it. Some UPC receipts were also placed on record but these are the photocopies. The letter written to claimant Smt. Geeta was put to her during her cross - examination as Ex. WW3/M2. But she denied to ahve received this letter. Other letters remained unexhibited during the course of evidence.
22. These workmen could not place on record any other reliable piece of evidence in support of their particulars regarding designation, last drawn salary and the service tenure. On the other hand the Management had made an admission in its written statement regarding these details. In the details admitted by the Management, there is not much difference regarding the last drawn wages but there is a lot of difference in the service tenures of these workmen. It is correct that an admission of a party binds that party in a judicial proceeding as the admission of the Management has bound it. But this also underlines the weakness of an admission. The details admitted cannot be taken as proved even a bit beyond the limits of admissions. The same is the case in the present adjudication. If the tenure of these workers is to be fixed as per the admission of the Management only, then it cannot go beyond a period of admission. Therefore, this court holds that the tenure of these workmen will be taken as proved as it was admitted by the Management in its written statement.
23. A peculiar aspect of this adjudication is that the details of the services AWARD Page 9 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 of the claimants /workmen is being determined solely on the basis of the admissions made by the Management. This is the only source of information available to this court as the workmen have not brought any tangible piece of evidence. The Management has admitted varying periods of services regarding three workmen Daya Chand, Mohd. Kayum and Smt. Sushma, but it had denied completion of 240 days in service by the worker Smt. Geeta. Therefore, this court is constrained being devoid of any other reliable source of information to presume that this admission by the Management was correct and that Smt. Geeta had not completed 240 days in her service in the year preceding the alleged date of termination. Hence, this court is of the view that the claim of the worker Smt. Geeta remained unproved because of this reason. In the ensuing paragraphs whatever is written, is written regarding the remaining three workmen.
24. The same is the observation of this court regarding the designations and their last drawn salaries. However, there is a minor difference in the last drawn salaries of Smt. Geeta and Sh. Mohd. Kayum. However, remaining two salaries are identical both as claimed and as admitted. For the reasons recorded in the previous paragraph, this court further presumes the salaries of these workmen as it was admitted by the Management in its written statement.
25. Upto this point of this award, this court has arrived at a conclusion regarding the tenure of these workmen including the date of appointment and the date of termination of services and the last drawn salaries of these workmen. Now this court has to determine regarding the mode of termination of their services i.e. it has to determine if the termination of services would constitute a retrenchment within the meaning of Section 2 (oo) of the Industrial Disputes Act. The Management had admitted that these workmen stopped attending their duties in its establishment and the owner of this establishment i.e. MW1 Sh. Ram Tirath Handa had further admitted that he did not conduct any domestic enquiry against these workmen for their aforesaid absence.
26. As per law laid down by the Hon'ble High Court in Shakuntala's Export House (P) Limited Vs. Secretary (Labour) and Ors. MANU/DE/0541/2005 and by the Hon'ble Supreme Court in Punjab AWARD Page 10 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 and Sind Bank Vs. Sakattar Singh (2001) 1 SCC 214 Management was obliged to hold an enquiry in case a workman stopped attending his duties. In the present case it is neither the pleadings nor the evidence tendered by the Management to show that any such enquiry was ever held.
27. Therefore, there is sufficient ground for this court to believe that the services of these workmen were not terminated in a legal manner and hence it constituted a retrenchment within the meaning of Section 2 (oo) of the Industrial Disputes Act which reads as follows : Section 2 (oo) Industrial Disputes Act defines the retrenchment 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.
28. It is neither the pleading nor an evidence of the Management that these workmen were ever paid the retrenchment compensation or any other amount as notice pay or any other head to compensate their loss as the result of their termination.
29. 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 AWARD Page 11 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 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."
30. 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 Disputes Act was imperative. The contravention thereof would render the retrenchment. 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.
31. 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.
32. Following this law as aforesaid, this court is of the view that these workmen should be given an appropriate amount of compensation to make good the losses they incurred as a result of retirement of their services.
33. This court is of the view that compensation amount should be determined after having regard to the date of appointment, the date of termination, the total length of employment of the workman, his last drawn salary, the present value of rupees as compared to that on the date of retrenchment (i.e. inflation and the devaluation of money) and the circumstances in which he was retrenched.
34. This court has calculated a formula where the tenure of a workman multiplied by his last drawn salary and a multiplicative factor would give an appropriate amount of compensation to be granted in lieu of their illegal retrenchment. In this case and its circumstances this court has taken 2.1 as the aforesaid multiplicative factor. The consequent amount of compensation to be given to these workmen is as follows : AWARD Page 12 of 13 Sh. Daya Chand & Ors. Vs. M/s. Damini Exports ID No. 1071/04 Name Designatio Salary per month Service Period Compensation to n be paid
1. Sh. Daya No Rs.5,050/ PM. 01.04.1998 to 11.08.2003 Rs.53,025 Chand
2. Sh. Mohd. No Rs.3,600/ PM. 01.12.1997 to 30.07.1998 Rs.45,360/ Kayum Left without information.
Reemployed from 17.08.1998 to 16.08.2003, did not complete 240 days as per habitual absence.
3. Smt. Geeta No Rs.2,800/ PM. 18.04.2003 to 16.08.2003. not NIL.
completed 240 days.
4. Smt. No Rs.2,900/ PM. 01.12.1997 to 12.10.1998. Rs.36,540/ Sushma Left without information.
Reemployed from 27.10.1997 to 16.08.2003..
35. Reference is answered accordingly.
36. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
37. 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.
38. File be consigned to the Record Room after completing due formalities.
ANNOUNCED IN THE OPEN COURT ON 03.11.2012.
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