Delhi District Court
Through: Janhit Mazdoor Union vs The Directorate Of Family Welfare on 27 January, 2023
Shri Harish Chander Vs. Director, The Directorate of Family Welfare
LIR No. 3568/17
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER: LABOUR COURT08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LIR No. 3568/17
CNR No. DLCT130126522017
In the matter of:
Shri Harish Chander
S/o Shri Banwari Lal
Aged about 32 years
R/o House No. 89, Gali No.2
Sanjay Colony, Narela,
Delhi110040
Through: Janhit Mazdoor Union
(Regd. No.3978), Delhi Pradesh Delhi
H.No. 14, Gali No.19, Manavkunj,
Mukundpur, Delhi110042
... Workman
Versus
The Directorate of Family Welfare
Through its Director,
Govt. of NCT of Delhi
(Administrative Branch)
'B' & 'C' Wing, 7th Floor,
Vikas BhawnII, Near Metcalf House,
Civil Lines, Delhi110054.
...Management
Date of Institution : 22.12.2017
Date of Award : 27.01.2023
Page No. 1/12
Shri Harish Chander Vs. Director, The Directorate of Family Welfare
LIR No. 3568/17
AWARD
1.Reference under Section 10(1)(c) read with Section 12(5) of the Industrial Disputes Act, 1947 has been received from Deputy Labour Commissioner, North District, Nimri Colony, Ashok Vihar, Delhi setting out following dispute for adjudication by the Court:
"Whether there exist employeremployee relationship between the management of The Directorate of Family Welfare, Through its Director, Govt. of NCT of Delhi (Administrative Branch) and workman Shri Harish Chander S/o Shri Banwari Lal and if yes whether his services terminated illegally and/or unjustifiably by the management; if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Shri Harish Chander has filed statement of claim asseverating himself as employee working with management as 'Daily Wager' earning Rs.311/ per day equivalent to Rs.9,330/ per month w.e.f. 01.01.2009. It is submitted that his services were initially utilized for 615 days in a month and thereafter on monthly basis under the Pulse Polio Immunization Programme from May, 2010 without providing any legal facility and services of claimant was not confirmed by management in regular post despite biometric attendance being recorded w.e.f. 12.05.2014 and notwithstanding continuous service for more than 240 days Page No. 2/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 in a year till he was wrongfully removed from service on 30.06.2014 without paying earned wages of June 2014, retrenchment compensation and one month salary in lieu of notice.
3. Claimant continued to approach management seeking reinstatement in job with earned wages and dues followed by Demand Notice dated 07.07.2014 which was neither replied nor complied and settlement could not be effected before Conciliation Officer, Nimri Colony, Ashok Vihar, Delhi leading to reference of dispute by the Labour Office. It is submitted that services of claimant have been illegally terminated by management in violation of Section 25F, 25G & 25H of the Industrial Disputes Act, 1947 and claimant is entitled to be reinstated with continuity of services and other benefits including back wages.
4. The Directorate of Family Welfare, GNCT of Delhi has filed written statement contesting claim inter alia on following grounds:
(a) Casual workers were hired by management in medical store from time to time for doing miscellaneous work during Pulse Polio phases.
(b) Casual workers hired intermittently for irregular periods on working day were not bestowed status of employee serving in regular post.
(c) Shri Harish Chander was neither engaged nor worked as employee of management and no letter of appointment or engagement or formal/informal Page No. 3/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 contract or commitment of continuation, absorption or regularization was issued by management.
5. Averments in the claim have been denied in corresponding paras of reply for disputing employeremployee relation and management, in addition, has stated about payment of consolidated sum of daily wages of a particular month or period to claimant as per rate approved by the Labour Department.
6. Following issues were settled on 04.12.2018 after rejoinder and completion of pleadings:
1. Whether the workman has been continuing his job with the management regularly with effect from 01.01.2009 till the date of his termination i.e. 30.06.2014 or he was only doing job on casual basis with the management as and when required? ... OPW
2. Whether services of the workman have been terminated illegally or unjustifiably by the management? ... OPW
3. Relief.
7. Averments in the claim have been reiterated in affidavit Ex.WW1/A tendered in evidence and WW1 Shri Harish Chander has relied upon following documents in his examinationinchief recorded on 06.02.2020:
1. Legal Notice dated 19.05.2014 - Ex.WW1/1;
2. Postal receipt - Ex.WW1/2;Page No. 4/12
Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17
3. Copy of Bank statement - 'Mark WW1/3'.
8. His crossexamination was recorded and workman's evidence was closed.
9. Matter continued to be listed for management evidence till judicial file was received in this Court by way of transfer on 24.03.2021.
10. Dr. Brij Kishor Tyagi, State Programme Officer (SPO), Medical Store, Directorate of Family Welfare, GNCT of Delhi AND Dr. Shintoo Doomra, Central Coordinator, Pulse Polio Programme, Directorate of Family Welfare, GNCT of Delhi examined as MW1 and MW2 have denied employeremployee relation by deposing that Shri Harish Chander was hired as casual worker/daily wager for miscellaneous jobs at Central Medical Store under Pulse Polio Programme and recruitment procedure was not followed for hiring claimant as unskilled worker on daily wage in their affidavits tendered in evidence.
11. MW1 & MW2 have relied upon (i) photocopy of vacancy position as on 15.10.2015 Ex.MW1/1 (OSR); (ii) photocopy of musterroll showing attendance, calculation of wages and receipt by claimant - Ex.MW1/2 (colly) (OSR) (iii) photocopy of Sanction Orders dated 17.03.2011, 10.02.2011, 03.02.2011 & 12.07.2011 - Ex.MW1/3 (colly)(OSR) AND (iv) photocopy of muster roll for Polio Programme showing attendance, calculation of wages and receipt Ex.MW2/1 (OSR).
12. Their crossexamination was recorded on 26.08.2022 & 10.10.2022 and management evidence was closed.
13. Shri Arvind Kumar, Legal Aid Counsel for workman and Page No. 5/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 Ms. Aditi Gupta for management have filed written submissions and relied upon caselaws in support of their respective contentions.
14. I have considered their submissions and perused pleadings, evidence and judgments cited by counsels.
15. My issuewise finding is recorded below:
Issue No.1: Whether the workman has been continuing his job with the management regularly with effect from 01.01.2009 till the date of his termination i.e. 30.06.2014 or he was only doing job on casual basis with the management as and when required? ... OPW
16. WW1 Shri Harish Chander having deposed about employment as daily wager initially for 6 to 15 days in a month w.e.f. 01.01.2009 and thereafter on monthly basis after May 2010 in his examinationinchief has claimed regular employment after May 2010 during crossexamination recorded on 06.02.2020. However, no document viz. muster roll or pay slip verifying regular and continuous service from 01.01.2009 to 30.06.2014 has been adduced in evidence.
17. MW1 Dr. Brij Kishore Tyagi and MW2 Dr. Shintoo Doomra, per contra, have deposed that claimant was hired intermittently as casual worker/daily wager from open market for doing miscellaneous jobs like loading/unloading, shifting & distribution of vaccines, logistics etc. in their affidavits tendered in evidence by adverting to copy of muster roll showing attendance, calculation and receipt of wages by the claimant.
18. MW1 Dr. Brij Kishore Tyagi, in addition, has also deposed about wages paid through A/c payee cheques depending upon Page No. 6/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 number of working days in a month from funds provided under National Rural Health Mission (NRHM) and approved by Ministry of Health & Family Welfare, Govt. of India for hiring casual worker/daily wager by referring to Sanction Order dated 03.02.2011, 10.02.2011, 17.03.2011 & 12.07.2011 referred as Ex.MW1/3 (colly).
19. MW2 Dr. Shintoo Doomra, on his part, has disputed regular and continuous employment from 01.01.2009 till 30.06.2014 by relying upon muster roll of claimant (Ex.MW1/2) for claiming that Shri Harish Chander had worked for (i) 13 days in 200809; (ii) 67 days in 200910; (iii) 20 days in 2010 11; (iv) 13 days in 201112; (v) 19 days in 201213 AND (vi) 08 days in 201314.
20. Suggestions to the effect that claimant used to work as daily wager since 01.01.2009 and was assigned regular duty from May 2010 have been denied by MW1 & MW2 by insisting that Shri Harish Chander was first hired in the month of April 2010 for 02 days and used to work as casual labour under Reproductive and Child Health Programme and Pulse Polio Programme. Testimony of MW1 Dr. Brij Kishore Tyagi and MW2 Dr. Shintoo Doomra have remained consistent during cross examination and is verified by copy of muster rolls showing attendance, calculation and receipt of wages by the claimant. FINDING: Shri Harish Chander claiming employment with management as daily wager initially for 6 to 15 days in a month and thereafter on monthly basis after May 2010 has not produced any document to prove regular and continuous service Page No. 7/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 w.e.f. 01.01.2009 till 30.06.2014. Management on the other hand has relied upon muster roll showing attendance, calculation and receipt of wages by claimant as daily wager and copies of Sanction Order dated 17.03.2011, 10.02.2011, 03.02.2011 & 12.07.2011 for release of amount to be paid to Shri Harish Chander hired as casual labour at Medical Store. Issue No.1 is decided by holding that Shri Harish Chander engaged by The Directorate of Family Welfare as daily wager was doing job on casual basis as and when required.
Issue No.2: Whether services of the workman have been terminated illegally or unjustifiably by the management? ...OPW
21. Shri Arvind Kumar for claimant has relied upon judgments titled (i) H.D. Singh Vs. Reserve Bank of India & Ors. 1986 AIR 132; (ii) MCD Vs. Raj Gopal & Ors. decided on 03.05.2011 AND
(iii) Delhi Cantonment Board Vs. CGIT 129 (2006) DLT 610 for claiming illegal termination of service by management in violation of Section 25F, 25G and 25H of I.D. Act.
22. Ms. Aditi Gupta for management, per contra, has denied termination of service by contending that claimant Shri Harish Chander being casual labour was not employed in regular post and did not complete 240 days of continuous service in the preceding year before 30.06.2014. AR for management has relied upon judgment of Hon'ble Supreme Court of India in Manager RBI Vs. Gopinath Sharma & Ors. MANU/SC/ 8235/2006 and judgment of Hon'ble High Court of Delhi in Superintending Archaeologist Archaeological Survey of India Page No. 8/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 Vs. Union of India & Ors. MANU/DE/8291/2007 for disputing illegal termination of service.
23. Hon'ble Supreme Court of India in H.D. Singh Vs. Reserve Bank of India & Ors. (Supra) having returned its finding in the case of Tikka Mazdoor hired by Reserve Bank of India on daily wage basis for helping the Examiners of coins/notes has recorded following observation in para '7' of the judgment :
"Striking off the name of a workman from the rolls by the employer amounts to termination of service and such termination is retrenchment within the meaning of Section 2(oo) of the Act if effected in violation of the mandatory provision contained in Section 25F and is invalid".
24. Similar observation was recorded by Hon'ble High Court of Delhi in Delhi Cantonment Board Vs. CGIT (Supra) by holding that perusal of definition of workman under Section 2(s) of I.D. Act shows that there is no distinction in industrial law between a permanent employee and a temporary employee and termination of service of workman who has completed 240 days of service in the year prior to the date of termination of service is illegal and invalid.
25. Aforesaid judgments will not help the case of claimant in the absence of evidence to establish 240 days of continuous service with the employer for seeking protection under Section 25F of I.D. Act.
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26. Muster roll of Shri Harish Chander records - (i) 13 days in 200809; (ii) 67 days in 200910; (iii) 20 days in 201011; (iv) 13 days in 201112; (v) 19 days in 201213 AND (vi) 08 days in 201314 and testimony of MW1 & MW2 disputing 240 days of continuous service with management could not be impeached during their crossexamination.
27. 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.
28. 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 Page No. 10/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 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 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."
29. 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 Page No. 11/12 Shri Harish Chander Vs. Director, The Directorate of Family Welfare LIR No. 3568/17 principle 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 evidence apart from examining himself to prove the factum of his being in employment of the employer."
FINDING: Retrenchment in violation of Section 25F of ID Act could not be established in the absence of evidence to prove 240 days of continuous service with the employer. Claimant Shri Harish Chander is therefore not entitled to claim protection under Section 25F of I.D. Act. Issue No.2 is decided accordingly. RELIEF
30. Statement of claim seeking reinstatement with continuity of service and consequential benefits is dismissed.
31. Reference stands answered in aforesaid terms.
32. Copy of Award be sent to Deputy Labour Commissioner, North District, Nimri Colony, Ashok Vihar, Delhi for publication.
33. Judicial file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 27.01.2023 Digitally signed
TARUN by TARUN
YOGESH
YOGESH Date: 2023.02.02
11:36:46 +0530
(TARUN YOGESH)
PRESIDING OFFICER - LABOUR COURT08
ROUSE AVENUE DISTRICT COURTS
NEW DELHI
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