1 IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI [CASE NUMBER] BETWEEN Workman, Sh. [ENTITY] S/o Sh. Nageshwar Chaturvedi C/o Samajwadi Karamchari Union, 35, Govind Khand, Vishwakarma Nagar, Delhi-110095. AND The [ENTITY]. Date of institution of the case : 11.08.2003 Date of reserving the award : 31.03.2008 Date of announcement of award : 19.04.2008 AWARD 1. The National Capital Territory of Delhi, Delhi through its Secretary (Labour) vide reference no. F.24(775)/2003-Lab./9559-63 dt. 21.07.2003 referred the dispute for adjudication between the Management of M/s. Khatima Fibres Ltd. and its workman Sh. [ENTITY] S/o Sh. Nageshwar Chaturvedi in the following terms of reference:- "Whether services of Sh. [ENTITY] S/o Sh. Nageshwar Chaturvedi C/o Samajwadi Karamchari Union, 35, Govind Khand, Vishwakarma Nagar, Delhi-95 have been terminated by the management illegally and/or unjustifiably and if so to what relief is he entitled, and what directions are necessary in this respect?" Contd 2 2. Workman has filed statement of claim stating therein that he has been employed with the management for the last 12 years as Driver and his last drawn salary was Rs. 6500/- per month. The workman was working sincerely and diligently to the satisfaction of management and never gave any chance of complaint to the management. The management was not providing the legal facilities I.e appointment letter, wages slip, leave book etc. and the workman was orally demanding the same from the management on which management started remaining annoyed with the workman. On 21.06.2002, Sh. [ENTITY], Managing Director took the keys of car from workman at about 4 p.m. and told the workman to leave the factory premises immediately and thereby terminated the services of workman without issuing any notices or charge sheet in violation of provisions of [SECTION] of [ACT]. On 17.09.2002, workman approached the Labour Authorities through his Union but despite efforts of Labour Inspector workman was not reinstated. On 07.10.2002, workman sent a notice of demand to management through Union but the management did not send any reply to the same and earned wages for the workman for the month of June, 2002 were also not paid. On 16.10.2002, workman filed claim before the conciliation officer but the management did not attend the conciliation proceedings. The workman is unemployed since the date of termination of his services. It is prayed that an award be passed thereby reinstating workman in services with full back wages and continuity of services. 3. The notice of statement of claim was issued to the management and the management has filed reply/WS and has contested the same. In the WS Contd 3 management has stated that the workman has admitted that his last drawn salary was Rs. 6500/- p.m. as such he is not a workman as per [SECTION] of the [ACT]. It is stated that the claimant has never been in the employment of the management. It is stated that the driver was engaged by Sh. [ENTITY] in his individual capacity and he was drawing his salary from him and not from the company as alleged. It is stated that as claimant was not in the employment with the management hence the claim is not maintainable against the management. It is denied that the claimant has been in the employment with the management for the last 12 years as Driver and his last drawn salary was Rs. 6500/- p.m. as alleged. It is stated that as the claimant was not in the employment of the management hence there is no question of termination of the services of claimant by the management as alleged. It is stated that merely because Sh. [ENTITY] happens to be Managing Director of the management that does not give rise to presumption that claimant was employed with the management. It is stated that as claimant has never been in the employment of the management hence there is no question of providing legal facilities to him as alleged. It is stated that the claimant is not entitled to any relief. 4. Workman has filed rejoinder to the WS of management. In the rejoinder workman has reiterated the contents of statement of claim and has controverted the allegations of management as stated in the WS. 5. From the pleading of the parties following issues were framed by my ld. predecessor on 06.12.2004: Contd 4 1. Whether there existed relationship of workman and employer between the parties? If so, its effect? OPW. 2. As per terms of reference. 6. To prove his case, the workman examined himself as WW1 and WE was closed on 25.07.2006 7. To prove its case, management examined Sh. [ENTITY], Authorized representative of management as MW1 and ME was closed on 24.08.2007. 8. I have heard AR for the parties and carefully perused the record. My findings on the specific issues are as under. ISSUE NO. 1 9. In the statement of claim the workman has stated that he has been employed with the management for the last 12 years as Driver and the management had not issued letter of appointment, wages slip, leave book etc. and he was demanding the same from the management on which management got annoyed and was looking for an opportunity to oust the workman from service. On 21.06.2002 the Managing Director Sh. [ENTITY] took the keys of car from the workman and asked him to leave the factory premises immediately and thereby terminated the services of the workman without issuing any notice or charge - sheet. Thereafter the workman made complaint to Labout Authorities through Union but despite efforts of the Labour Inspector workman was not reinstated. On 07.10.2002 the workman served a notice of demand on the management but the management did not respond the same and the workman presented his claim before the Conciliation Officer Contd 5 but the management did not attend the conciliation proceedings. In the W.S. the management has pleaded that the workman had never been in the employment of management and he was engaged by Sh. [ENTITY] in his individual capacity and he was drawing salary from Sh. [ENTITY] and not from the company and the claim of the workman is not maintainable against the management. 10. The plea of AR for management is that it is for the workman to prove that there existed relationship of employer and employee between the parties and that the workman has worked continuously for 240 days in a year with the management. 12. In [PRECEDENT] Hon'ble Supreme Court held that: 36. In a given case it may not be possible to infer that a relationship of employer and employee has come into being only because some persons had been more or less continuously working in a particular premises inasmuch as even in relation thereto the actual nature of work done by them coupled with other circumstance would have a role to play. 38. The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the court is required to consider several factors which would have a bearing on the result: (a) who is appointing Contd 6 authority; (b) who is the pay master; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject. 13. In [PRECEDENT], the Hon'ble Supreme Court held that it was then for the claimant to lead- evidence to show that he had in fact worked for 240 days in the year preceding 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 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 [PRECEDENT]; [PRECEDENT] and [PRECEDENT], the Hon'ble Supreme Court reiterated the principle that 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. 15. In [PRECEDENT] the Hon'ble Supreme Court held that when the Contd 7 workman apart from examining himself in support of his contention has not produced any proof in the form of receipt of salary or wages for 240 days or record of his appointment or engagement for that year to show that he has worked with the employer for 240 days to get the benefit under [SECTION] of the [ACT], in the absence of evidence on record the Labour Court and the High Court have committed an error in law and fact in directing reinstatement of the respondent-workman.
16. Hence, as per aforesaid decisions it is for the workman to prove that he has been employed with the management for the period as alleged and that his services were illegally terminated by the management.
17. To prove his case the workman appeared in the witness box as WW1 and he adduced evidence by way of affidavit Ex. WW1/A. In the cross - examination the workman/WW1 stated that he joined management in the year 1990 at the post of Driver and in the year 1990 the management had two vehicles. The workman/WW1 stated in the cross - examination that the salary was being paid by the management and not by the Managing Director in the personal capacity. The workman has relied on salary certificate dated 26.07.2001 Ex. WW1/7. A suggestion was given to workman/WW1 in the cross - examination by the management to the effect that the the contents of salary certificate Ex. WW1/7 are correct. By giving this suggestion to the workman/WW1 in the cross - examination the management has admitted the correctness of salary certificate Ex. WW1/7. MW1 stated in the cross - examination that he cannot tell as to who has signed on Ex. WW1/7 at the place of Manager Sales and Finance and MW1 further voluntarily stated in Contd
the cross - examination that designation below signature at point B on Ex. WW1/7 is correct but the said person has left the management. In the cross - examination of workman/WW1 no suggestions have been given to the effect that salary certificate Ex. WW1/7 is a fabricated document. As per salary certificate Ex. WW1/7, the same has been issued on behalf of management in the name of Sh. [ENTITY] as Transport Supervisor working with the management since March 1992. The plea of the management is that in Ex. WW1/7 the designation is mentioned as Transport Supervisor and the claimant is not a workman as per [SECTION] of the [ACT]. It is to be noted that on the one hand the management has taken the plea that there existed no relationship of employer and employee between the parties but on the other hand the management is pleading that in Ex. WW1/7 the designation of claimant is mentioned as Transport Supervisor. But the management has not adduced any evidence to the effect that the claimant was discharging managerial, supervisory or administrative duties and that he is not a workman as per [SECTION] of the [ACT].
18. The workman/WW1 has also relied on one attorney Ex. WW1/8 whereby Sh. [ENTITY], Chairman and Managing Director of the management has authorized the workman to take certain steps in respect of company's vehicle no. DL-7C-0599 and the said attorney is signed by Sh. [ENTITY] as Chairman and Managing Director for the management. MW1 admitted in the cross - examination that Ex. WW1/8 bears signature of Sh. [ENTITY] at point A. It is to be noted that Ex. WW1/8 has been issued and signed by Sh. [ENTITY] as Chairman and Managing Director of the management and not in his individual capacity and that also for release of company's vehicle No. DL-7C-0599. In the cross - examination of workman/WW1 no suggestions have been given to the effect Ex. WW1/8 is a fabricated document and on the contrary the management has given a suggestion to workman/WW1 in the cross - examination to the effect that the contents of Ex. WW1/8 are correct and by giving this suggestion the management had admitted the correctness of Ex. WW1/8. The workman has also relied on one letter dt. 17.1.2000 Ex. WW1/9 written by Sh. [ENTITY], Chairman and Managing Director to Dynamic Automobiles whereby the workman has been authorized to take delivery of the "Cielo Executive" car booked by the company. MW1 admitted in the cross - examination that Ex. WW1/9 bears signature of Sh. [ENTITY]. Ex. WW1/8 and Ex. WW1/9 prove that the management was in possession of car no. DL-7C-0599 and Cielo Executive car. The management has not produced any record in order to prove that as to who were employed as Drivers by the management to drive the said vehicles. In the cross - examination of workman/WW1 a suggestion was given by the management to the effect that it is correct that maintaining the pollution emission record of all vehicles of management was his responsibility. By giving this suggestion the management has admitted that the workman was responsible towards the cars owned by the management. In the circumstances, it not open for the management to say that the workman was not in the employment of management. The management has not explained that if the workman was not in the employment of management then how he was entrusted the task of maintaining the pollution emission records of the vehicles of the management as suggested workman/WW1 in the cross - examination and for completing legal formalities in respect of vehicles of the company as stated in Ex. WW1/8 and for taking delivery of car booked Contd
by the management as stated in Ex. WW1/9. Hence, the workman has proved a prima facie case that he was in the employment of management and in the circumstances, onus shifted on the management to rebut the claim of the workman by producing its record that the workman was not in the employment of the management.
19. In the case of [PRECEDENT] the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case it would be the responsibility of the Management to rebut the same.
20. Although, it is for the workmen to prove that there existed relationship of employer and employee between the parties and that he has worked continuously for 240 days in preceding one year prior to termination of his services but if the management does not issue any documents to the workman relating to his employment in that case it was held in [PRECEDENT] that:
14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same Contd
to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
21. In [PRECEDENT], Hon'ble Supreme Court held
10. In [PRECEDENT], the decisions referred to above were noted and it was held as follows:
"Analyzing the above decisions of this court, it is clear that the provisions of the [ACT] in terms do not apply to the proceedings under [SECTION] of the [ACT]. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of Contd
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 non-production 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."
22. As per decisions in [PRECEDENT]. (Supra) and [PRECEDENT] (Supra) it is for the workman to call upon the management to produce the relevant record in order to prove that he has been employed with the management for the period as alleged.
23. The pleas which have been raised by the workman are that the management has not issued letter of appointment and the management was not issuing wages slip, leave book etc. to him. In the affidavit Ex. WW1/A the workman has stated that the management has not paid him bonus for the period 1998 to 2001. If the management wanted to rebut the claim of the workman that the management has never paid bonus to workman as he was in the employment of the management in that case it was open for the management to have produced its bonus record prior to the year 1998 in order to prove that the management has never paid bonus to workman even prior to 1998 also. Part cross - examination of MW1 was conducted on 27.04.2007 and his further cross - examination was deferred as he was directed to produce ledger account of the management from 01.07.1998 to 30.05.1999 and thereafter MW1 appeared for further cross - examination on 24.08.2007 Contd
and he stated that he has not brought the ledger account of management from 01.07.1998 to 30.05.1999 as the same was not traceable. The management has not produced any of the records maintained by it i.e PF records, ESI records, attendance records, wages records etc. in order to prove that the workman was not in the employment of management on that account his name has not been mentioned in the records of the management. The plea which has been taken by the management is that the workman was engaged by Sh. [ENTITY] in his individual capacity and he was drawing salary from him. The management has nowhere stated that Sh. [ENTITY], Chairman and Managing Director is no more in the employment of management. In the circumstances, it was open for the management to have produced Sh. [ENTITY] in the witness box in order to prove that the workman was employed by him in his individual capacity and the workman was not in the employment of management. Sh. [ENTITY] has not appeared in the witness box in order to prove that if the workman was employed by him in his personal capacity, then how the Ex. WW1/8 and Ex. WW1/9 have been issued by him in his capacity as Chairman and Managing Director of the management. The aforesaid discussions clearly prove that the workman was in the employment of the management and there existed relationship of employer and employee between the parties. This issue stands answered accordingly.
24. In findings of issue no. 1 above it has been held that there existed relationship of employer and employee between the parties. The plea of the workman is that the management was not providing statutory facilities and he Contd
was demanding the same from the management on which management was annoyed on that account the management terminated the services illegally on 21.06.2002. The management has taken the plea that the workman was not in the employment of management, hence there was no question of termination of services of the workman by the management. However, in issue no. 1 above it has been held that there existed relationship of employer and employee between the parties. In the cross - examination of workman/WW1 a suggestion has been given by the management to the effect that the workman used to remain absent unauthorizedly which was negated by the workman. The management has not proved that if the workman had unauthorizedly absented from duties then the management sent him any letter thereby asking him to join duties or that the management had issued any charge-sheet to the workman for remaining unauthorizedly absent from duties.
25. In [PRECEDENT] was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of [SECTION] and such law would be liable to be tested on the anvil of [SECTION] and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of [SECTION]. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated Contd
to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
26. In The [PRECEDENT] was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
27. In [PRECEDENT] it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
28. [SECTION] of the [ACT] reads as under:
"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 reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or Contd
(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.
29. [SECTION] of the [ACT] provides that:
Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
30. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry Contd
proceeding. It is held accordingly that the services of workman have been terminated illegally by the management.
31. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workman.
32. In [PRECEDENT] was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
33. In [PRECEDENT] it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the [ACT]."
34. In [PRECEDENT] in Para 10 and 11 our own Hon'ble High Court observed that:
10.In the case of Haryana Tourism Corpn. Ltd. vs. Fakir Chand and Ors., AIR 2003 SC 4465: 2003 (8) SCC 248:
2004-I-LLJ-265, Supreme Court directed payment of compensation of Rs. 70,000/-, instead of reinstatement with 25% back wages taking into consideration factors Contd
like (a) workers were daily wagers, (b) workers were not recruited through employment exchange or regular mode of selection, (c) services of the workers were terminated long back, and (d) considering nature of work, the workers must have done similar work at least intermittently.
11. In a number of matters, this Court has also examined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of reinstatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma v. Nehru Yuva Kendra Sangathan, 2002-II-
LLJ-401 (Del) and [PRECEDENT], and [PRECEDENT].
35. The workman appeared in the witness box as WW1 and adduced evidence by way affidavit Ex. WW1/A. In para 10 of the affidavit Ex. WW1/A the workman has stated that he is unemployed since the date of termination of his services and despite best efforts he could not secure alternate employment. In the cross - examination the workman/WW1 stated that he is unemployed. Workman/WW1 denied suggestion of management in the cross - examination to the effect that he is gainfully employed. Although, the workman/WW1 has stated that he is unemployed since the date of termination of his services however, the workman/WW1 has not proved that if he is unemployed since the date of termination of his services then how he is sustaining himself and his family. The workman has not proved that as to what efforts were made by him to secure alternate employment after disengagement from the management. The workman/WW1 has not proved that as to what steps were taken by him to mitigate his days of hardship. The plea of the workman is that he was employed by the management as Driver. The nature Contd
of job of the workman is not such that he would have remained wholly unemployed after disengagement of his services from the management. However, the management has not proved that the workman was employed in any other establishment after disengagement of his services from the management. In the circumstance, the workman shall be entitled back wages @ 50% from the date of disengagement of his services from the management till date. In this case the management has denied the relationship of employer and employee between the parties and the management was also not maintaining any record in respect of workman. Moreover, the services of workman were disengaged in the year 1992 and looking at the nature of work performed by workman, no order of reinstatement is being passed and the workman shall be entitled to compensation calculated in terms of [SECTION] of the [ACT] and the workman shall also be entitled to a sum of Rs.10,000/- (Rupees ten thousand only) on account of cost of these proceedings under [SECTION] of the [ACT]. Reference stands answered accordingly. Copies of this award be sent to appropriate Govt. for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 19.04.2008.
` ([ENTITY]) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI 19.04.2008 Pr. None.
Award dictated and announced separately. Copies of award be sent to appropriate Government for publication as per law. File be consigned to record room.
POLC/19.04.2008