Delhi District Court
Between vs Jethabhai on 31 October, 2007
1
IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA
COURTS: SHAHDARA : DELHI
ID NO. 1263/2006 Date of Institution : 12.08.1997
Award Reserved : 29.10.2007
Date of Award : 31.10.2007
BETWEEN
CLAIMANT
SH. HARPAL SINGH AND OTHERS
C/O MUNICIPAL EMPLOYEES UNION,
AGGARWAL BHAWAN, G.T. ROAD,
TIS HAZARI, DELHI54.
AND
MANAGEMENT
M/s DELHI DEVELOPMENT AUTHORITY
Through its Secretary
VIKAS SADAN, I.N.A. MKT.,
NEW DELHI.
AWARD
1. Vide Notification No. F.24(754)/97Lab./1541216 dated 19.06.1997
Secretary (Labour), Delhi Administration has referred dispute raised by the
worker to this court for adjudication under section 10(1)(c) and 12(5) of the
Industrial Disputes Act, 1947 (hereinafter called the Act) with the following
terms of reference :
"Whether the services of Sh. Harpal Singh, Chander Pal Singh and
Suresh Chand have abandoned their jobs or their services have
been terminated illegally and/or unjustifiably by the management,
and if so, to what relief are they entitled and what directions are
necessary in this respect.?"
ID No.1263/2006
2
2. Workmen filed statement of claim pleading therein following facts :
They were appointed by Delhi Development Authority (hereinafter called
the Management) on 01.01.1982 as a regular and permanent employees. They
had unblemished service record yet their services were terminated on
07.10.1990 without any reason and without giving them any opportunity of
being heard. no domestic enquiry was conducted. No notice was served, no
service compensation was paid. The termination is violative of section 25F, G &
H of the Act. They sent a demand notice to the management on 17.11.1995.
Management did not reply to the notice. Conciliation proceedings failed on
account of non cooperative attitude of the management. They are unemployed
since the date of termination of their services. They have prayed for
reinstatement with continuity of service and full back wages.
3. Vide award dated 16.07.2007 my learned predecessor ordered reinstatement
of the workers with full back wages.
4. Management challenged the award. Hon'ble High Court vide its order dated
29.05.2006 quashed the exparte award and remanded the case for fresh
adjudication.
5. Management filed written statement contesting the claim of the workers. It
ID No.1263/2006
3
is pleaded that the workers were never in the employment of the management. It
is stated that they worked for few months on the basis of forged and fabricated
orders which were procured by them in connivance with lower functionaries of
the management. It is further pleaded that when forgery came to light they
stopped reporting to the management. It is also stated that the case was
investigated by CBI and CBI found the workers to be bogus appointees. It is
further stated that the present dispute has been raised after five years from the
date of alleged termination and no reason has been given for the delay.
It is further submitted that on June 15/16, 1989 purported office orders were
received at the office of Executive Engineer South Eastern Division No.V of
DDA wherein it was mentioned that the worker nos.1 & 2 have been transferred
from EDVII to SEDV of DDA. In accordance with the office order the
workers nos. 1 & 2 were posted at II/SEDV.
It is further submitted that on July 5, 1989 purported office order bearing
No.EO136 was received at the office of the Executive Engineer SEDV of DDA
wherein it was mentioned that the worker no.3 has been transferred from EDVI
to SEDV of DDA. In accordance with the office order the worker no.3 was
posted at SE Division No.V/SEDV.
It is further submitted that relying on the purported transfer orders the
workers started working at their respective subdivisions on work charge basis.
Their pay was provisionally released.
ID No.1263/2006
4
It is further submitted that as the personal files and service books of these
persons were to be received from the respective divisions of the DDA, the
concerned divisional offices were written letters for sending their personal files
and records. In response thereto it was reported that these persons were not
transferred from respective divisions. A reference was also made to Deputy
Director (Admn) East Zone and that authority also denied the issuance of any
such transfer orders.
It is further submitted that on the basis of information received from
concerned Divisional Offices as well as Deputy Director (Admn.) East Zone, it
was realized that these persons had been working on the basis of forged and
fabricated documents i.e. the transfer orders, they were bogus employees and
were never in the employment of the DDA. Thus their pay was stopped. The
pay of petitioner No.1 was released till January 1990 i.e. for a period of about
six months, of petitioner no.2 till 31.08.1989 i.e. for two months and of
petitioner no.3, it was also for a few months.
It is submitted that as per the procedure prevalent at DDA, when an
employee is transferred from one division to another division, the transfer order
is issued by the Deputy/Assistant Director from the office of the concerned
Zonal Chief Engineer. Copy of the said order is sent to the transferring division
and transferee division through the Peon Book of the office of Zonal Chief
Engineer. On the basis of the said transfer order, a relieving order is issued by
ID No.1263/2006
5
the Executive Engineer of the transferring division and copy of the said reliving
order is sent to the Zonal Chief Engineer as well as Executive Engineer of the
transferee division. This relieving order is sent through the peon book. After
that the relieved employee submits his joining report at the transferee division
and he is posted in one of the SubDivision of the transferee division and an
order to this effect is issued by the Executive Engineer of the transferee
division. Again a copy of the said posting order is sent to the office of Zonal
Chief Engineer and executive Engineer of transferring division so that the
Transferring Division knows about the joining of the transferred employee and
it also facilitates the accounting aspect. The Service Book, Personal File and the
LPC of the transferred employee are then to be sent from the transferring
division to the transferee division along with a forwarding letter.
It is further submitted that the modus operandi in cases of fraudulent
transfer orders/bogus employment as found by the CBI was that the persons in
connivance with certain lower level functionaries of DDA used to ensure that
the above mentioned procedure was not followed in actual practice. Fraudulent
and forged letters were served at the transferee division and then it was ensured
that the copy of the joining report and the posting orders did not reach the
transferring division and office of concerned Zonal Chief Engineer.
It is further submitted that on 10.02.1990 a First Information Report (FIR)
came to be filed at the Police Station, Badarpur, Delhi under section 420, 467
ID No.1263/2006
6
and 471 i.e. for offences of cheating, forgery and using forged documents and
conspiracy of commit those offences under Section 120B read with Sections
420, 467 and 471 IPC. The matter was also looked into by Central Bureau of
Investigation (CBI). The CBI registered an FIR bearing no. RC11(S)/92Delhi.
All relevant files and other documents were seized and looked into by the CBI
and the matter was thoroughly investigated. Subsequently, the CBI furnished
lists of identified bogus appointees so that necessary action may be taken
against them. The names of the three workers clearly appear at item nos.48, 49
and 57 of the list given by the CBI to DDA.
It is further denied that the workers are unemployed. It is stated that it is out
of question that they are sitting idle at home. It is stated that they have not
mentioned as to how they are making both ends meet.
6. Following issues were framed :
1. As per terms of reference.
2. Whether the claim is not maintainable as per averments made
in para 1 of page 2 of written statement ?
3. Relief.
7. Workers Chander Pal, Har Pal and Suresh Chand were examined as WW1,
WW2 and WW3 respectively and thereafter they closed their evidence.
Management examined Sh. Anil Kumar Khanna as MW1 and thereafter closed
ID No.1263/2006
7
its evidence.
8. I have carefully perused the material available on the record and have heard
Authorized Representative for the workman.
ISSUE NO.1
9. All Workers have set up an identical case that they were employed by the
management on 01.01.1982 and their services were terminated unlawfully on
07.10.1990. Management has denied that they were appointed by it. It is stated
that they worked with it for a period of few months on the basis of forged and
fabricated orders which were procured by them in connivance with lower
functionaries of the management and when fraud came to light they stopped
reporting for duty. It is also stated that the matter was investigated by the CBI
and it registered an FIR no.RC11(S)/92Delhi.
10. Since the relationship of employer and employee between the parties is
disputed onus lies on the workers to prove their employment with the
management as is evident from the following judgments.
ID No.1263/2006
8
11. In Bhogpur Cooperative Sugar Mills Ltd. v. Harmesh Kumar 2007 LLR
183 SC The Hon'ble Apex Court held that :
"For applicability of section 25 F of the I.D. Act, the
workman is bound to prove that he had been in
continuous service of 240 days during twelve months
preceding the order of termination."
12. In Ravi N. Tikku v. Deputy Commissioner (S.W.) & Ors. 2006 LLR 496
recently our own Hon'ble High Court discussed the issue of onus of proof of
employment and observed as follows :
"It has been repeatedly held that so far as an
industrial claim is concerned, its procedure is
guided by the general principles of the law of
evidence that he who asserts must prove.
Based on the rule of Roman Law - 'el
incumbit probatio, qui dicit, non qui
negat' - the burden of proving a fact rests on
party who substantially asserts the
affirmative of the issue and no upon the party
who denied it, for a negative does not admit of
direct and simple proof. It is well settled that
the onus and burden of proof of establishing
the employment is consequently on the
workman. The workman can discharge the
ID No.1263/2006
9
same by leading cogent and reliable evidence
in respect thereof which could be oral or
documentary. In the even of nonavailability
of the same, he can very well cause the same
to he summoned from the authorities
concerned or the management itself and place
the same before the industrial adjudicator."
13. In Range Forest Officer v. S.T. Hadimani (2002) 3 Supreme Court Cases 25
the Apex Court held :
".........in our opinion the Tribunal was not
right in placing the onus on the
management without first determining on the
basis of cogent evidence that the respondent
had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year proceeding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman ID No.1263/2006 10 had, in fact, worked for 240 days in a year.
No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
14. In case of Surendra Nagar District Panchayat and Another Vs Jethabhai Pitamberbhai (2005) 8 Supreme Court Cases 450, the Hon'ble Apex Court observed as follows :
"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 evidence apart from examining himself to prove the factum of his being in employment of the employer... From the tenor of the judgment of the Labour Court and the High Court, it is apparent that the judgments have proceeded on the premise as if the burden of proof lies on the employer to prove that the employee had not worked with him for 240 days in the preceding year immediately before the date of his ID No.1263/2006 11 termination. The Labour Court and the High Court committed an error in placing the burden on the employer to prove that the workman had not worked for 240 days with the employer."
15. In Manager, Reserve Bank of India v. S. Mani and Ors. 2005 (III) SLT 191 : 2005 LLR 737 (SC) it was held by Hon'ble Apex Court that initially burden of proof is on the workman to show that he had been employed by the respondent management in the claimed capacity on the stated terms.
16. In Mukesh K. Tripathi v. Sr. Divisional Manger, LIC and others 2004 (103) FLR 350 SC Hon'ble Apex Court said that the onus was on the claimant to prove that he is a workman.
17. In R.M. Yallatti V. Assistant Executive Engineer 2006 (108) FLR 213 SC it was held by the Hon'ble Apex Court that it has repeatedly held that the burden of proof is on the claimant to show that he had worked for 240 days in a year. I quote the relevant observation :
"The above decisions however make it clear that mere affidavits or selfserving statements made by the claimants/workman ID No.1263/2006 12 will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere nonproduction of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the management."
18. Worker Chander Pal appeared in the witness box as WW1 and in his cross examination he stated that he was issued an appointment letter by the management on 01.01.1982 but he did not have a copy of the same. He also stated that he did not appear for any interview before any officer of the management. He also stated that he had not seen any advertisement for the post in any newspaper. However, he claimed that he was appointed by the management on permanent basis. But he admitted in his cross examination that he did not have any document to show that from 19821989 he worked with the management.
19. Workman Harpal was examined as WW2. He stated that no appointment letter was issued to him by the management. He stated that he had ID No.1263/2006 13 seen vacancy in the newspaper but he did not remember the name of the said newspaper. He claimed to have worked with the management from 1982 to 1989. He stated that he did not have any document to show that he worked for the said period.
20. Worker Suresh Chand was examined as WW3. He stated in his cross examination that he did not appear before any officer of the management for interview. He also admitted that no appointment letter was issued to him by the management. He further stated that he did not have any document to show that he worked with the management from 19821989. He stated that the documents were destroyed when his house was collapsed.
21. The cross examination of the three workers reveals that they were unable to show any document to corroborate their claim that they worked with the management for the period claimed.
22. The management is a government agency, therefore the workers should have in possession of several documents to show their employment such as appointment letter, assignments, wages slips etc. Management being a statutory authority has to issue appointment letter. None of the workers could produce any such letter nor they could produce any authentic ID No.1263/2006 14 document to show their appointment by the management. There is a bald statement of the worker in the form of an affidavit reiterating his claim which is not sufficient as held in Range Forest Officer (Supra).
23. Workers filed an application for asking the management to produce their service record. AR for the management vehemently opposed the application firstly on the ground that management is not in possession of any service records of the claimants as they were not appointed by the management and secondly on the ground that application is filed belatedly at the stage of final arguments. It is contended that application is filed quite belatedly as said records could have been summoned when the case was listed for claimant's evidence. Claimants have been examined cross examined, management witness has been cross examined and it is only at the stage of final arguments that the present application is filed.
24. Although the present application is highly belated yet it is to be kept in mind that the claimants in order to prove their appointment can call for their service record to be produced by the management.
25. Learned authorized representative for the management has categorically stated that management is not in possession of any service record of the claimants. AR ID No.1263/2006 15 for the workman has contended that in such a case an adverse inference should be drawn against the management for deliberately withholding the service record of the claimants.
26. It was held by the Hon'ble Apex Court that initial burden of proof was on the worker to show that he was employed by the respondent in the claimed capacity on the stated terms and it is only after initial burden is discharged by the claimant a finding can be returned in defence of the management. The circumstances in which court may draw an adverse inference were stated as follows :
In Sri Niwas It was held : (SCC p.198, para 15) "15. A Court of law even in a case where provisions of the 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 his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for nonproduction of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because ID No.1263/2006 16 notwithstanding the intentional nonproduction, other circumstances may exist upon which such intentional nonproduction may be found to be justifiable on some reasonable grounds."
It was further observed as follows (Siri Niwas case, SCC p. 199, para 19) :
"19. Furthermore a party in order to get benefit of the provisions contained in Section 114 III, (g) of the Evidence Act must place some evidence in support of his case. here the respondent failed to do so."
In Hariram it was observed : (SCC p. 250, para 11) "11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the high Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously."
27. In the present case the employer is a statutory authority as such there has to be an appointment letter. The claimants should have been in possession of several documents relating to their appointment such as appointment letter, wageslips etc. They claim to have worked with the management for a long duration i.e. 01.01.1982 to 17.10.1990 on regular and permanent basis. They have not been able to produce a single document which may show that they ID No.1263/2006 17 were ever appointed by the management or remained in the service for so long. As initial burden of proof has not been discharged by the claimants no adverse inference can be drawn against the management and the claimants cannot be held entitled to the relief prayed for merely because the management expressed its inability to produce the records which it says it did not prepare as claimants were not its employees.
28. The workers have failed to discharge the onus to prove their employment with the management. Once it is not shown that they were appointed by the management there is no question of termination of their services. As such issue no.1 is decided in favour of the management and against the claimants. ISSUE NO.2
29. Management has raised an objection that the claim is stale as the claimants raised the present dispute after five years from the date of alleged termination of their services and no reason have been given to explain the delay.
30. Claimants in their statement of claim have stated that their services were terminated on 07.10.1990. However, they served demand notice on the management on 17.10.1995. It is not explained by them as to why they kept silent for about five years.
ID No.1263/2006 18
31. In Assistant Engineer, CAD Kota vs. Dhan Kunwar, 2006 LLR 1220 Hon'ble Apex Court stated that merely because Industrial Disputes Act does not provide for a limitation for raising dispute, it does not mean that the dispute can be raised at any time. The Hon'ble Apex Court set aside the relief in this case as dispute was raised after eight years of termination.
32.
"If stale claims are allowed, it would lead to undesirable results including financial anarchy and chaos in the industrial field. Unless there is a satisfactory explanation for the delay, the Labour court is not expected to entertain petitions especially when it would have farreaching pecuniary consequences on the employers..... It is repeatedly said by the Supreme Court; 'Industrial adjudication should not encourage unduly belated claims'." (Smt. Pakkiyam Vs Executive Engineer / C.N., Southern Railway, Salem and Others, 2002 (94) FLR 1207) ID No.1263/2006 19
33. In Manager (Now Regional Director), RBI and Gopinath Sharma and another, 2006 (110) FLR 803 It was held as follows :
20."This case, in turn, refers to the judgments in Nedungadi Bank Ltd. v. K. P. Madhavankutty and others, and S. M. Niljakar and others v. Telecom Distric Manager, Karnataka. This court held that even though there is no limitation prescribed for Reference of disputes to an Industrial Tribunal, even so it is only reasonable that the disputes should be referred to as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen. This Court has held that a delay of four years in raising the dispute after even reemployment of most of the old workmen was held to be fatal."
34. Learned authorized representative of the workman has relied on Jai Bhagwan, Appellant v. Management of the Ambala Central Cooperative Bank Ltd. and another, Respondents AIR 1984 Supreme Court 286 = 1983 Lab. I.C. 1694 ; S. M. Saivad, Appellant v. Baroda Municipal Corporation, Respondent ID No.1263/2006 20 AIR 1984 Supreme Court 1829 = 1984 Lab. I.C. 1446 ; Gurmail Singh v. Principal, Govt. College of Education and Others (2000) 9 Supreme Court Cases 496 and Mahavir Singh v. U.P. State Electricity Board and Others (1999) 9 Supreme Court Cases 178.
In these cases there was delay in challenging the termination. It was held that the same would not be a bar to the adjudication of the matter but could only deprive the worker of his back wages for the period of delay in raising the termination issue. It was also contended by learned authorized representative of the workman that there is violation of principles of natural justice in terminating the services of the claimants. The termination itself is disputed by the management which has not been proved by the claimants as such there is no question of violation of principles of natural justice. The judgments cited above are not relevant to the present case and as such are not of any help to the claimants.
35. Claimants are guilty of unreasonable delay in raising their claim. This issue is accordingly decided in favour of the management and against the claimants. ISSUE NO.3
36. The claimants have failed to show that they were appointed by the management and that they worked with it for at least 240 days continuously in a ID No.1263/2006 21 year preceding the date of alleged termination of their services and further they have failed to show as to why and how they woke up after a long slumber of about five years in raising their claims.
37. In view of the aforesaid claimants are not entitled to any relief. Reference answered in the negative. Appropriate government be informed. File be consigned to record room.
Announced in the open PRESIDING OFFICER
court today. LABOUR COURT NO. XIII
Date : 31.10.2007 KARKARDOOMA COURTS
DELHI
ID No.1263/2006