Delhi District Court
Sh. Ram Narayan vs . M/S. Sainik Security Services Regd. ... on 6 May, 2013
Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
Computer ID No. 02402C0053072010
F.24. (485)/WD/LABOUR/8140 dated
Reference No.
22.10.2009.
Type of Case Reference Case.
Date of Institution 10.02.2010.
Evidence Concluded on 18.02.2013.
Final Arguments Heard On 06.05.2013.
Date of Award 06.05.2013.
WORKMAN Vs. MANAGEMENT
Sh. Ram Narayan S/o Sh. Phool M/s. Sainik Security Services
Shankar C/o Hindustan Regd., J - 9, 17G, Rajouri Garden,
Engineering And General Mazdoor New Delhi - 110027.
Union Regd., D - 2/24, Sultanpuri,
Delhi - 100086.
PRESENT:
None for the parties.
AWARD :
1. The appropriate Government sent a reference no. F.24. (485)/WD/LABOUR/8140
dated 22.10.2009. to this court in relation to the illegal termination of the services
of the claimant /workman Sh. Ram Narayan by the Management M/s. Sainik
Security Services Regd. The reference specifically pointed out as follows :
"Whether the services of Sh. Ram Narayan S/o
Sh. Phool Singh were terminated illegally and / or
unjustifiably by the Management, and if so, to
what relief was he entitled?"
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Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10
2. As per claim, the workman Sh. Ram Narayan was working with the Management
M/s. Sainik Security Services Regd. since the year 1995 as a 'Security Guard' and
he claimed his last drawn salary as Rs.3470/ per month. As per claim since
01.02.2008 the claimant was entitled to receive Rs.3683/ per month as a salary but
the same was not paid to him by the Management. When on 11.09.2008 the
claimant / workman went to join his work, the Management alleged to have turned
him back. It is the workman's case that this act of the Management was a
retrenchment and hence he claimed his reinstatement along with full back wages
and other consequential benefits.
3. A written statement / reply was filed on behalf of the Management M/s. Sainik
Security Services Regd. It was pleaded therein that the Management had not
terminated the claimant's services and that the claimant himself had stopped
attending his duties during the month of September, 2008. In reply on merits the
Management did not deny the pleadings on the date of appointment; the post and the
monthly salary of the claimant. Not even a single word was expressed suggesting
any alternative factual circumstance. On the point of termination, it was simply
denied and on the mode of termination a simple plea was taken that the
Management had never terminated the services of the claimant.
4. In this background of pleadings of the parties, this court vide its orders dated
13.04.2011 framed the following issues :
1. Whether the workman had abandoned his
duties, if yes from what date and period?
OPM.
2. Whether the services of the workman were
terminated illegally and / or unjustifiably by
the Management? OPW.
3. Relief, if any.
5. Thereafter both the parties were asked to lead their respective evidence.
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Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10
6. In support of his claim the workman Ram Narayan examined him as WW1 and
almost reiterated his claim in material aspects. He relied upon five documents.
Documents Ex. WW1/4 and Ex. WW1/5 were objected to by the ld. counsel for the
respondent / Management as these were the photocopies. Ex.WW1/1 is a copy of an
application filed by the appropriate authority under the Shops & Establishment Act in the court of the ld. Chief Metropolitan Magistrate, Delhi whereby a recovery of Rs.10,899/ was sought against the Management. Document Ex. WW1/2 is a letter written by the workman to the Management on 01.10.2008 and Ex. WW1/3 is its postal receipt. Ex. WW1/4 is a copy of a claim filed before the Assistant Labour Commissioner. Ex. WW1/5 appears to be a show cause notice dated 16.03.2009 issued by the ESI authorities to the Management for some statutory violations with regard to this claimant.
7. During his cross - examination a document Ex. WW1/M1x was put to this witness.
It appears to be a letter dated 01.07.2008 whereby the claimant had demanded a change of shifts in his duties. The workman had admitted his signatures at points A and B on this application. He has admitted this application in his own handwriting. He denied a suggestion that he absented from his services in the Management's establishment for several periods in the year 2007 and 2008. A specific question was asked by the ld. counsel for the Management to this witness regarding any document filed by the claimant that could show his attendance on duties from December, 2007 to September, 2008. The claimant denied to have filed any such document.
8. After this the Management examined one Major D.S. Sahni as MW1. He relied upon six documents. All the documents except Ex. MW1/1 were objected to by the AR for the workman as these were photocopies. Ex. MW1/1 is a Power of Attorney purportedly executed by one Lt. Col. Jasvir Singh Gulia in favour of one Major D.S. Sahni to come and depose before this court and any other court upto the Hon'ble Supreme Court and the Hon'ble High Court. Ex. MW1/2 is a photocopy dated 05.03.2008 which is in fact a warning letter wherein the workman was shown to have absented from work in the period from December, 2007 to January, 2008. A few portions of this letter are not properly legible. Ex. MW1/3 and Ex. MW1/4 were again the photocopies showing how AWARD Page 3 of 12 Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10 this workman was not working properly. Ex. MW1/5 is the photocopy of a document already exhibited as Ex. WW1/M1x. And Ex. MW1/6 is a set of two pages of a letter purportedly written by the Management to the Assistant Labour Commissioner.
9. During his cross - examination this witness appears to be confused on the point of legal identity of this Management's establishment. He deposed that he was a Director in the Management's establishment upto 31.03.2009 and that the Management's establishment was registered with the Registrar of the Companies. But no such proof in that behalf was ever furnished on record. He admitted not to have given any appointment letter to the workman at the time of his initial appointment. He admitted the payment of Rs.10,899/ to the workman in the office of the Conciliation Officer. He again admitted during his cross - examination that he neither wrote any letter to the claimant to call him back on duties nor did he hold any enquiry thereby enquiring into the circumstances responsible for workman's alleged absence.
10. 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 AWARD Page 4 of 12 Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10 Company, but of some other person."
11. 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 Labour Court & Anr. 2006 LLR
851.
12. Limited Vs. PO Labour Court & Anr.
In Automobile Association of Upper India (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.'
13. 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 : AWARD Page 5 of 12 Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10 '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 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 AWARD Page 6 of 12 Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10 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 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.
14. 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 an 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.
ISSUES NO. 1 & 2 :
15. In these issues this court has to adjudicate upon the factum if the workman had abandoned his duties, if yes from what date and period and also if the services of Sh. Ram Narayan S/o Sh. Phool Singh were AWARD Page 7 of 12 Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10 terminated illegally and / or unjustifiably by the Management, and if so, to what relief was he entitled.
16. In this case the date of appointment, the post of the workman and his last drawn salary are not disputed. The Management has nowhere denied on these parameters. There is no specific denial on the point of last day of working. Therefore, this court presumes that the last day of work was 10.09.2008 and on 11.09.2008 the claimant was not on his work. As per the claimant the Management did not allow him to work while as per the Management he did not come to attend his duties.
17. This court is of the view that in this entire adjudication only one point i.e. mode of termination of service is in dispute.
18. The specific law in case of an abandonment was 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.
19. As per law laid down by the Hon'ble Superior Courts as aforesaid, the Management is legally obliged to hold an enquiry enquiring into the reasons and circumstances responsible for non - attendance of service by the claimant. In case the respondent / Management fails to hold such an enquiry, it would be a legal failure on its part to prove its bonafide.
20. In the present case the Management has neither pleaded nor proved any enquiry that was ever held by the Management to the aforesaid effect. On the other hand it is proved from the material available on record that the authority under the Delhi Shops & Establishment Act had to pass an order and the court of ld. Chief Metropolitan Magistrate had to initiate the realization proceedings. This clearly shows that at the time of determination of this service the Management was not in cordial relations to the workman. The workman had to have recourse to the statutory proceedings even to get his earned wages.
21. Other circumstances are also available on record which show that the AWARD Page 8 of 12 Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10 Management was not acting bonafidely and the defence as pleaded and proved in the court is merely an eye wash. The Management's witness has clearly admitted in his cross - examination that no appointment letter was ever issued to the workman at the time of his initial appointment. He has placed on record a few photocopies purportedly the letters sent to the claimant or other statutory officials. But there is not even a single postal receipt to show that these letters were really delivered to the addressees mentioned therein. Simply these are all photocopies except Ex. MW1/5 which was also put to the workman during his cross - examination. But the Management has nowhere stated or shown where the originals of these documents would be better utilized by it other than the present adjudication before this court.
22. Similarly the Ex. MW1/1 is a Power of Attorney. In this Power of Attorney an executant had executed this deed in favour of MW1 i.e. a witness of the Management. Neither the executant nor the witness in whose favour this Power of Attorney was executed was a statutorily recognized authority. hence they had to prove their execution only as per law i.e. by examining the executant before this court. But for the best reasons known to the Management this was not done so. Consequently this document Ex. MW1/1 is nothing more than a simple piece of paper available in the file. It cannot be acted upon in this adjudication.
23. On the basis of the observations as aforesaid, this court is of the view that the Management had admitted in pleadings the claim of the claimant. In its pleadings and the evidence it could not prove any alternative factual situation other than the one pleaded and proved by the workman. Therefore, this court holds that the workman has been able to establish his claim and entitlement and the Management has failed to disprove the claimant's case and to prove any alternate factual situation. Consequently it is hereby held : that the workman did not abandon his duties; and that his services were terminated by the Management in a manner which was a 'retrenchment' within the meaning of Section 2 (oo) of the Industrial Disputes Act.
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24. Section 2 (oo) of the Industrial Disputes Act defines the retrenchment as follows : Section 2 (oo) Industrial Disputes Act : "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.
25. 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 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."
26. 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 AWARD Page 10 of 12 Sh. Ram Narayan Vs. M/s. Sainik Security Services Regd. ID. No. 67/10 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.
27. 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.
28. It is further held that if a retrenchment was effected without complying with the legal requirements, it is void abinitio and does not have an effect in law.
29. Hence the order of the Management terminating the services of the claimant / workman w.e.f. 11.09.2008 was illegal and unjustifiable and void abinitio.
30. On the point of back wages, the law is very clear that the some should be given by way of damages. During the cross - examination this claimant / workman clearly stated that he was never gainfully employed after his aforesaid termination. Not only that he had to fight for 6 years before this court in order to get his dues. This would have incurred expenses involving a lot of money and resources of this claimant / workman.
RELIEF :
31. The claimant / workman is entitled to the reinstatement in services with all consequential benefits.
32. This court thinks it fit that it would be justified if the workman gets 50% of his full back wages from the date of his termination i.e. w.e.f. 11.09.2008 till the date of this order. Henceforth the workman is entitled to receive his full wages with all allowances etc.
33. Reference is answered accordingly.
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34. 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.
35. File be consigned back to the Record Room after completing due formalities. ANNOUNCED IN THE OPEN COURT ON 06.05.2013.
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