Delhi District Court
Sh. Suraj Pal Singh vs . M/S. The Master Builders. Did No. ... on 20 October, 2012
Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0089952010
Type of Case Direct Industrial Dispute
Date of Institution 20.03.2010
Evidence concluded on 30.03.2012
Final Arguments Heard On 20.09.2012
Date of Award 20.10.2012
WORKMAN Vs. MANAGEMENT
Sh. Suraj Pal Singh S/o Late Sh. M/s. The Master Builders,
Pratap Singh, R/o G 26, Rattan Through Its Proprietor / Partner
Park, Basai Dharapur, New Delhi - Sh. N. K. Sethi, 612 - B, Hemkunt
110015. Tower 98, Nehru Place, New
Delhi - 110019. Also At J - 18,
Jangpur Extension, New Delhi -
110014.
PRESENT:
None for the parties.
AWARD :-
1. The workman namely Suraj Pal Singh filed this direct industrial dispute before this
court U/S 10 (4A) of the Industrial Disputes Act against the Management M/s.
The Master Builders.
2. As per his claim, the workman Suraj Pal Singh joined the respondent / Management
M/s. The Master Builders in the year 1968 as an "Office Attendant". The workman pleaded his last drawn salary as Rs.4,000/ per month. He was paid his complete salary till the month of October, 2009. As per the claim on 18.11.2009 the Management got his signatures on some AWARD Page 1 of 11 Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10 plain papers and did not allow him to join his duties on 19.11.2009. Thereafter he kept visiting the Management till 26.12.2009 but he was not allowed to join his duties. Thereafter the workman preferred to raise this industrial dispute and brought it before this court for adjudication.
3. The respondent / Management M/s. The Master Builders filed its reply / written statement in a very peculiar manner. In its written statement it admitted the relationship to the workman but stated that the relationship started w.e.f. 1990 and not from 1968. The termination of services of the workman was denied. Other aspects of the case were denied by the Management in a consolidated way giving reply to various paragraphs of the claim together.
4. In this background of the pleadings of the parties, this court vide its orders dated 17.08.2010 framed the following issues :
1. Whether the services of the workman were terminated illegally and / or unjustifiably by the Management? OPW.
2. Whether the workman has abandoned his duties, if yes, from what date and period? OPM.
3. Relief, if any.
5. Now for the purpose of proper adjudication, this court within its powers U/S 11 of the Industrial Disputes Act r/w Order XIV Rule 5 CPC restructures and reframes the issues as follows :
1. Whether the workman had abandoned his duties, if yes, from what date and period and its effect?OPM.
2. Whether the services of the workman were terminated illegally and / or unjustifiably by the Management? OPW.
3. Relief, if any.
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6. Thereafter the claimant / workman Suraj Pal Singh examined him as WW1 and almost reiterated his claim in material aspects. He relied upon 18 documents in support of his claim. Document Ex. WW1/1 is the Identity Card issued by the Management in favour of the workman. Document Ex. WW1/2 to Ex. WW1/7 are the photocopies of the vouchers by which the payment of salary was made by the Management to the workman. Ex. WW1/8 is the photocopies of the post office pass book of the workman dated 29.07.1977. Ex. WW1/9 is the photocopy of the Driving License dated 18.07.1977 issued in favour of the workman. Document Ex. WW1/10 is the date of birth certificate of the workman's daughter. The election I card of the claimant / workman is Ex. WW1/11. The certified true copy of the police complaint dated 16.11.2006 lodged by the workman against Sh. N.K. Sethi regarding the threats given by him to the workman is Ex. WW1/12. Photocopy of another complaint dated 09.02.2010 is Ex. WW1/13. Document Ex. WW1/14 is the demand notice sent by the workman to the Management through his counsel and its postal receipts are Ex. WW1/15 and Ex. WW1/16. The reply sent by the Management to the demand notice of the workman is Ex. WW1/17 and its envelope is Ex. WW1/18.
7. During his cross - examination the workman admitted to have attained the age of 59 years. He stated that he did not have any document related to his employment since 1968. However, he had some documents to show his employment from 1977. For this he relied upon a document i.e. his pass book which was issued on 29.07.1977. Its photocopy is exhibited as Ex. WW1/8. He also relied upon a license from the Motor Licensing Authority dated 18.07.1977. He also relied upon a date of birth certificate of his daughter who was born on 09.10.1977. In all these documents he showed to have been living at J - 18, Jangpur Extension, New Delhi - 110041. It is the residential address of Sh. N.K. Sethi the proprietor / owner of the Management.
8. During his fruther cross - examination he revealed that he was living at G - 26, Ratan Park, Basai Dharapur, New Delhi since the year 1980. As per his version it was a Management's property which was rented out to him. He further deposed regarding his unemployment since his termination by the Management.
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9. After this one Sh. N.K. Sethi was examined by the Management as MW1. He reiterated the facts pleaded in the written statement. During his cross - examination he stated that his firm was not maintaining the attendance and wages registers for the reason that he used to employ only two workers. He stated that subsequent residence of the workman i.e. G - 26, Ratan Park, Basai Dharapur. New Delhi was given to the workman by the Management and it was given so free of charges. Subsequently some dispute arose between the parties regarding the possession of this property and an FIR was loged by the Management / respondent against this workman. A letter purportedly written by the workman to this witness on 22.06.2001 was placed on record as Ex. MW1/1 in which this workman had undertaken to have been living in this house as a licensee.
10. The law related to the onus of proof in a labour adjudication was laid down by the Hon'ble Superior Courts in various cases.
11. 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."
12. The law was also elaborated by the Hon'ble Delhi High Court in AWARD Page 4 of 11 Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10 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.
13. 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.'
14. 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 AWARD Page 5 of 11 Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10 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 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 AWARD Page 6 of 11 Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10 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.
15. In the light of this law this court is of the view that the requirement of evidence by the workman and the Management is not simultaneous. It is a primary duty of the claimant to show that at least a prima facie case exists in his favour and thereafter if he succeeds in doing that the Management's evidence would be taken into consideration either in rebuttal or in the establishment of alternative factual circumstances put forward by it in defence.It is clear that burden of proving facts keeps shifting from one party to the other.
ISSUE NO. 1 :
16. In this issue this court has to adjudicate upon the factum if the workman had abandoned his duties, if yes, from what date and period and its effect.
17. The Management had to prove this issue but it had not placed on record any particular material to show that the workman had abandoned his duties. No resignation, no settlement deed, no full and final payment of AWARD Page 7 of 11 Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10 amount was pleaded or proved on this aspect by the Management. On the contrary the Management's witness had admitted in his cross - examination that they were not used to maintain attendance and wages registers of their workers. Regarding this issue the pleadings of the respondent / Management were never proved through sufficient amount of evidence by the Management. Therefore, this issue is held to be "Not Proved" by the Management and is decided accordingly. ISSUE NO. 2 :
18. 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.
19. The workman specifically pleaded the date of his appointment as the year 1968, the date of termination of his services as 19.11.2009 and his last drawn salary as Rs. 4,000/ per month.
20. On the other hand the Management stated that he started working with it w.e.f. the year 1990, his last drawn salary @ Rs.4,000/ per month and on the point of termination of services the Management pleaded that it had never terminated his services. During his cross - examination the workman stated that he had no document to show that he was working with the Management since 1968. However, he placed on record some photocopies of three documents to show that he was residing at the Management's address i.e. G - 26, Ratan Park, Basai Dharapur, New Delhi. Out of these three documents first two documents were photocopy of a post office pass book (Ex. WW1/8) and second is the photocopy of grant of Driving License by the Motor Driving Licensing Authority.
21. This court is of the view that these two documents i.e. a post office pass book and a motor driving license are the necessary documents which an individual would need at his place of residence. Other documents of this nature may be a ration card or a pass port or a bank / post office account. Therefore, it appears to this court that the workman would have commenced working and also residing with the Management since a few months before than July, 1977.
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22. This court is also of the view that during the course of a labour adjudication the burden of proving facts keeps shifting from one party to the other. Initially the workman was required to show a relationship existing between him and the Management in the nature of 'an employer and an employee'. Here in the present case the existence of such a relationship was proved by way of an admission of the Management. However, it was with a qualification that it started in the year 1990 and not in the year 1968. This court is further of the view that once the Management had admitted the existence of a relationship in the nature 'an employer and an employee', then it had to plead and show other aspects of this relationship. It is so because these aspects are within the specific knowledge of the respondent / Management (Section 106 The Indian Evidence Act).
23. In the present case after the relationship between the parties was admitted, it was for the Management to show the date of its starting and the date of its termination. But the Management had failed to prove either of these two counts. On the one hand, the workman, however, had pleaded the beginning of this relationship from the year 1968. But he could show the preparation of some very essential documents from a few months before the month of July, 1977. This court has already observed that these are the documents which an individual would get prepared as soon as he starts living at a particular place. Therefore, it appears very logical when this workman started living at J - 18, Jangpur Extension, New Delhi, he got these documents prepared accordingly after a span of few months. For this purpose, he appeared to have started living in Delhi from July, 1977.
24. As a consequence of failure of the Management to bring on record the details of the employment of this workman (Pursuant to Section 106 of The Indian Evidence Act). This court is well justified to draw a presumption U/S 114 Illustration (g) The Indian Evidence Act that had the Management been able in bringing an evidence on this point, it would have gone against the interest of Management itself.
25. The next aspect is that of the termination of that relationship between the parties. The Management stated that it had enver terminated the services of the workman, but it had failed to satisfy the court. If the workman had stopped reporting to his duties all of a sudden, why an AWARD Page 9 of 11 Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10 enquiry was not held against the workman enquiring into the reasons which prevented the claimant / workman to report to his duties.
26. As per law laid down by the Hon'ble High Court in Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour) and Ors. MANU/DE/0541/2005 and by the Hon'ble Supreme Court in Punjab 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. Furthermore, if, as per the Management, the workman himself was not willing to continue his services with the Management, then where was the document to show such an understanding to have discended between the parties.
28. The Management could show nothing on these two aspects. This shows that the stand taken by the respondent / Management is supported neither by the facts nor by the prudence. It appears to be the Management's self actuated belief that the workman had abandoned or left his services. From the circumstances of this case, the version of the workman appears to be more logical that he was denied to join his services from 19.11.2009. The Management had squarely failed to show the instances of any other set of circumstances regarding the termination of the workman's services.
29. Consequently this court is of the belief that the services of the workman with the Management was terminated by the Management in a manner so as to constitute retrenchment within the meaning of Section 2 (oo) of the Industrial Disputes Act and this retrenchment was effected on 19.11.2009.
30. Now this court holds the date of appointment, date of retrenchment and the last drawn salary were July, 1977, 19.11.2009 and Rs.4,000/ per month respectively. He appears to have served the Management for about 32 years. This may precisely be calculated mathematically at the time of execution.
31. Pursuant to his retrenchment he ought to have been given a AWARD Page 10 of 11 Sh. Suraj Pal Singh Vs. M/s. The Master Builders. DID No. 118/10 compensation U/S 25 F of the Industrial Disputes Act. But there is neither a pleading nor an evidence by the Management that it was ever given to this workman.
32. This court holds that it should be given now.
RELIEF :
33. With the inputs given in para no. 30 an amount of compensation be calculated and held payable to this workman. This amount of compensation ought to have been given in November, 2009, but it was not given so. Keeping in view the devaluation of money and inflation in economy this court further directs the effect of this temporal effect since November, 2009 be neutralized by giving an additional amount of Rs.25,000/ (Rs. Twenty Five Thousand Only) to the workman along with the compensation amount as calculated above.
34. A copy of this award be sent to the office of the concerned Dy. Labour Commissioner for necessary action.
35. The 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.
36. File be consigned to the record room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 20.10.2012.
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