Delhi District Court
Through : Secretary vs M/S Shri Ram Offset & Traders on 7 January, 2023
Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders
LIR No. 8933/16
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER: LABOUR COURT08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LIR No. 8933/16
CNR No. DLCT130107442016
In the matter of:
Shri Ram Gopal
S/o Shri Puram Chand
Aged39 years
R/o C453, J.J. Colony
Nangloi, New Delhi
Through : Secretary, Shri Salim Malik
Engineering & General Karamchari Lal
Jhanda Union (Regd.4280)
2094/1A, Masjid Wali Gali No.15,
Prem Nagar, (Near West Patel Nagar)
New Delhi110008
... Workman
Versus
M/s Shri Ram Offset & Traders
Prop. Shri Vijender Dabas
2A/15, Naresh Park, Near Harivatika,
Nangloi, New Delhi110041.
...Management
Date of Institution : 14.09.2016
Date of Award : 00.00.2023
AWARD
1.Reference under Section 10(1)(c) read with Section 12(5) of the Industrial Disputes Act, 1947 has been made by Joint Page No. 1/9 Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16 Labour Commissioner, West District, Karampura, New Delhi setting out following terms of reference:
"Whether the services of workman Shri Ram Gopal S/o Shri Puran Chand have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. As averred in the claim Shri Ram Gopal had been working as 'Karigar Cutter' with M/s Shri Ram Offset & Traders for about 09 years and his last drawn salary was Rs.8,200/ per month. Workman continued to discharge his duty without any complaint but was denied legal facilities including appointment letter, attendance card, minimum wage @ Rs.8528/, annual leave, PF, bonus, overtime, etc. till his services were terminated without assigning any reason w.e.f. 14.12.2015. It is submitted that workman being regular and permanent employee having put in more than 240 days of continuous service in every calendar year has been wrongly retrenched from service in violation of Section 25F, 25G & 25H of the Industrial Disputes Act, 1947 read with Rule 76, 77 & 78 of the Industrial Disputes (Central) Rule, 1957 and is entitled to be reinstated with continuity of service and other consequential benefits including back wages.
3. M/s Shri Ram Offest & Traders has contested the claim inter alia on following grounds:
(a) Statement of claim is false, baseless and misconceived Page No. 2/9 Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16 as management has never terminated services of the workman rather claimant has abandoned the services of his own free will and accord.
(b) Services of workman have never been terminated at any point of time nor workman has ever been refused duty by the management rather he has absented from duty unauthorizedly w.e.f. 25.06.2014 without intimation to the management.
4. Averments in para 1, 3, 5 & 6 of the claim have been disputed by contending that workman having joined services w.e.f. 22.11.2013 was drawing monthly wages Rs.8,560/ and was also provided legal facilities including appointment letter, bonus, ESI, PF, leave encashment, minimum wages, etc. Termination of service w.e.f. 14.12.2015 has been also disputed by contending that workman having remained absent from duty without intimation/permission w.e.f. 25.06.2014 has abandoned his services and management, in addition, has stated about settlement of dispute for Rs.6,500/ as full and final amount paid to claimant by its authorized representative before Conciliation Officer, Karampura, Delhi on 29.09.2014.
5. Following issues were settled on 09.08.2017 after rejoinder and completion of pleadings:
(a) Whether the workman himself has absented from the duties unauthorizedly w.e.f. 25.06.2014 without any intimation to the management, if so, to what effect? ... OPM
(b) In terms of reference.Page No. 3/9
Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16
(c) Relief.
6. Matter continued to be listed for workman's evidence till judicial file was received in this Court by way of transfer on 16.02.2021.
7. Shri Ramesh Kumar Ojha, Supervisor, Shri Ram Print N Traders having appeared on 22.10.2021 was supplied copy of claim and affidavit but management thereafter remained unrepresented till 31.05.2022 when testimony of workman was recorded by way of affidavit Ex.WW1/A during examinationin chief.
8. WW1 Shri Ram Gopal having reiterated averments in his affidavit tendered in evidence has also relied upon following documents in support of claim seeking reinstatement with continuity of service and consequential benefits:
(a) Photocopy of demand notice dated 03.02.2016 - Mark 'A';
(b) Photocopy of postal receipt - Mark 'B';
(c) Photocopy of claim filed before Conciliation Officer, Karampura, New Delhi - Mark 'C';
(d) Photocopy of ESI card issued by management - Ex.WW1/4 (OSR);
(e) Photocopy of information of sickness (wrongly mentioned as fitness certificate) dated 02.01.2013 issued by the Insurance Medical Officer of Employees' State Insurance Corporation - Mark 'D' (colly);
(f) Photocopy of police complaint dated 24.02.2015 lodged at PS Nihal Vihar, New Delhi - Mark 'E' AND Page No. 4/9 Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16
(g) Photocopy of letter issued by management addressed to Branch Manager, ESIC, Nangloi for correction of INS number of employee - Mark 'F.
9. Management being unrepresented has neither availed opportunity to crossexamine WW1 Shri Ram Gopal nor led any evidence in support of its contention that workman has unauthorizedly remained absent from duty without intimation w.e.f. 25.06.2014.
10. I have perused statement of claim, written statement and testimony of workman recording during examinationinchief.
11. Though alleged date of termination of service is stated as 14.12.2015 in para '5' of the claim but workman in course of proceedings has twice submitted in court about retrenchment of service by management by not giving him duty w.e.f. 01.07.2014 which has been recorded in the ordersheets dated 31.10.2019 and 22.12.2022.
12. Issue No.1 regarding unauthorized absence from duty without intimation w.e.f. 25.06.2014 is decided against management in the absence of evidence in support of contention regarding abandonment of service by the workman.
13. As regards illegal and unjustified termination of service w.e.f. 14.12.2015, Shri Ram Gopal having alleged retrenchment in violation of Section 25F, 25G & 25H of the Industrial Disputes Act, 1947 read with Rule 76, 77 & 78 of the Industrial Disputes (Central) Rule, 1957 is required to prove his contention for claiming protection under Section 25F of I.D. Act.
14. Scope and ambit of provisions namely Section 2(oo), Page No. 5/9 Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16 Section 25B and Section 25F of I.D Act was considered by Hon'ble Supreme Court of India in para 6 of jusgment in "Surender Nagar District Panchayat Vs. Dahyabhai Amarsinh" (2005) 8 SCC 750 for observing that workman claiming protection under Section 25F of I.D. Act has to prove
(i) existence of employeremployee relation; (ii) employment as workman within the meaning of Section 2(s) of I.D. Act; (iii) establishment being an industry under Section 2(j) of I.D. Act AND (iv) continuous service under the employer as defined under Section 25B of I.D. Act.
15. WW1 Shri Ram Gopal having inconsistently stated about alleged termination of service by management w.e.f. 14.12.2015 has not led cogent and reliable evidence to prove continuous service of 240 days in the preceding year by way of receipt of salary/wages OR record of engagement/musterroll OR by examining any coworker to prove continuous service of 240 days in the preceding year before 14.12.2015.
16. Perusal of documents relied upon by WW1 during examinationinchief would reveal date of alleged termination of service on 14.12.2015 as mentioned in copy of demand letter dated 03.02.2016 (Mark 'A') and copy of claim filed before Conciliation Officer (Mark 'C') whereas claimant Shri Ram Gopal has twice submitted in Court that he was not allowed to join duty w.e.f. 01.07.2014. Copy of police complaint dated 24.02.2015 (Mark 'E') lends support to workman's version recorded in ordersheets dated 31.10.2019 and 22.12.2022 that he was not given job/duty by management from 01.07.2014 and Page No. 6/9 Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16 not from 14.12.2015 as stated in para '5' of the claim.
17. It is for claimant to lead evidence for discharging burden of proof of continuous service for 240 days in the year preceding his termination and mere affidavit tendered in evidence is not sufficient to discharge the burden of 240 days of continuous service as held by Hon'ble Supreme Court of India in Range Forest Officer Vs. S.P. Hadimani (2002) 3 SCC 25; Municipal Corporation, Faridabad Vs. Siri Niwas (2004) 8 SCC 195; Surendernagar District Panchayat Vs. Dahiyabhai Amarsinh (2005) 8 SCC 750; Manager, Reserve Bank of India Bangalore Vs. S.Mani & Ors. (2005) 5 SCC 100; R.M. Yellatti Vs. Assistant Executive Engineer (2006) SCC 106 AND Mohd. Ali Vs. State of Himachal Pradesh & Ors. (2018) 15 SCC 641.
18. Para 6 of judgment of Hon'ble Supreme Court of India in "Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another" (2004) 8 SCC 161 being relevant is extracted herein below:
"It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to Page No. 7/9 Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16 the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed."
19. Aforesaid ruling of Hon'ble Apex Court regarding burden of proof has been reiterated in para 17 of judgment of Hon'ble Supreme Court of India in "Surender Nagar District Panchayat Vs. Dahyabhai Amarsinh" (Supra) which is reproduced below for reference:
"More recently, in Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan & Another, (2004) 8 S.C.C. 161, Municipal Corporation, Faridabad vs. Siri Niwas, (2004) 8 S.C.C. 195 and M.P. Electricity Board vs. Hariram, (2004) 8 S.C.C. 246, this Court has reiterated the principal that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an Page No. 8/9 Shri Ram Gopal Vs. M/s Shri Ram Offset & Traders LIR No. 8933/16 evidence apart from examining himself to prove the factum of his being in employment of the employer."
20. Retrenchment in violation of Section 25 F of ID Act could not be proved in the absence of evidence of 240 days of continuous service and workman Shri Ram Gopal is therefore not entitled to claim protection under Section 25 F of ID Act on the ground of alleged termination of service w.e.f. 14.12.2015. RELIEF
21. Statement of claim seeking reinstatement with continuity of service and other consequential benefits including back wages is dismissed.
22. Reference stands answered in aforesaid terms.
23. Copy of the Award be sent to Joint Labour Commissioner, West District, Karampura, New Delhi for publication.
24. Judicial file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 07.01.2023 Digitally signed
by TARUN
TARUN YOGESH
YOGESH Date:
2023.01.07
15:48:42 +0530
(TARUN YOGESH)
PRESIDING OFFICER - LABOUR COURT08
ROUSE AVENUE COURTS: NEW DELHI
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