IN THE COURT OF DR. [ENTITY], PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI ID NO. 316/06 (old), 429/08 (new) Unique Case I.D. No. 02402C0583412006 BETWEEN THE WORKMAN Sh. [ENTITY], S/o Late Sh. Hari Vansh, R/o B6/52, Nand Nagari, Delhi. AND THE MANAGEMENT OF M/s. Mahavir Steel Industries, A115, Group Wazirpur Industrial Area, Delhi - 52. Date of Institution : 12.10.2006 Date on which award reserved : 17.05.2010 Date of passing of award : 20.05.2010 AWARD 1.
The workman has directly filed his statement of claim before this court u/[SECTION] of [ACT], (in short [ACT]) as applicable to Delhi.
2. The main submissions of the workman are to the effect that he had been appointed by the management since February, 1998 at the post of 'Press Machine Operator' on the salary of Rs. 2900/ per month; that he performed his duties honestly and sincerely to the entire satisfaction of the management; that management provided ESI facility to him only after one year of his appointment; that the management did not provide other legal facilities to him like PF, ESI, etc.; that the management did not issue any appointment letter to him; that when he demanded other legal facilities from the management, the management neglected his demands; that he was on medical leaves w.e.f. 01.02.2006 to 15.02.2006; that when he went to join his duties again on 16.02.2006, the management asked him to take some more rest; that ultimately he was not allowed to join his duties by the management; that in this way, his services were terminated illegally by the management w.e.f. 16.02.2006 without any justified reasons; that he sent a legal demand notice to the management dated 01.03.2006 by regd. AD Post but the management did not accept his request. Lastly, a prayer was made for his reinstatement with full back wages and all other consequential benefits as per law.
3. The averments of the statement of claim have been strongly opposed in written statement (in short W/S) filed on behalf of management. In this W/S, it is averred, interalia, that the claimant has filed false case in this matter against the management; that he did not serve any proper demand notice upon the management before filing this claim directly before this court; that he was not terminated from his service but rather he himself absented from his duty without any justified reasons; that this case had been filed by him just to extract some money from the management; that he was issued a notice recalling upon him to join his duties but despite that he did not join the duties of the management; that whatever was due to him till he worked with the management, the same was paid to him as per rules; that nothing was due to him from the management. Lastly, a prayer was made to dismiss his statement of claim.
4. On the basis of the pleadings of the parties, following issues were framed on 26.04.2007:
1. Whether the workman was illegally and unjustifiably terminated by the management on 16.02.2006?
2. Whether the claim of the workman is not maintainable in view of the preliminary objection taken in the WS?
3. Relief.
5. From the side of the workman, he himself examined as WW1 and also filed his affidavit on record in support of his contentions and thereafter evidence of workman was closed.
6. From the side of the management, MW1 Sh. [ENTITY] was examined who also filed his affidavit Ex. MW1/A on record and then evidence of the management was also closed.
7. I have heard oral final arguments in this case from both sides which are almost the repetitions of averments of pleadings of both the sides on record.
8. In the interest of justice, a further opportunity was given to both sides for filing of written synopsis of final arguments. Such written synopsis of final arguments have been filed on record on behalf of the management only which again appear to be almost the repetitions of the averments of pleadings of the management on record. Such written arguments not filed on behalf of workman despite time given.
9. I perused the entire judicial file minutely and my issuewise decision is as under:
10. The primary burden of proof of this issue was upon the workman. In coming to this conclusion, I also find support from an important judgment of Hon'ble Delhi High Court given in the case of [PRECEDENT]. In para 13 of this judgment, Hon'ble Delhi High Court held mainly to the effect that principles regarding burden of proof are stipulated in [SECTION] of [ACT] (in short [ACT]) and that [SECTION] of [ACT] were relevant on this aspect and the Hon'ble Delhi High Court further held in this judgment that General Principal, which is laid down in these Sections, particularly under [SECTION] and [SECTION] of [ACT] was 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 to establish the existence or nonexistence of a fact contended to by a party. It was further held in this judgment that the 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.
11. On this point, I further find support from important judgment of Hon'ble Allahabad High Court given in the case of [PRECEDENT]. The Hon'ble High Court held in para 11 of this judgment mainly to the effect that [SECTION] of [ACT] postulates that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. It was further held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Reference was also made by the Hon'ble High Court to the provisions of [SECTION], [SECTION] and [SECTION] respectively of the [ACT] pertaining to burden of proof in such like cases.
12. Now turning to the evidence of workman on record on this issue, he himself admitted in his crossexamination conducted on behalf of the management that he received letter of the management Ex. WW1/D1; that he did not reply this letter; that he could not join the management as ESI had stopped his treatment and he was unable to walk; that in case his treatment was restored by the ESI, he could join the management; that he did not want to work because of his sickness. I have seen Ex. WW1/D1. It is a letter dated 16.05.2007 sent form the side of the management to the workman herein by regd. AD Post in which the workman herein was informed that he was remaining absent from his duties w.e.f. 01.02.2006 without any prior intimation of the same to the management. It was also mentioned in this letter that despite several oral requests made to him by the management, the workman did not join his duties. It is further mentioned in this letter that the workman herein had taken Rs. 30,000/ as advance as a loan from the management and that in order to prevent recovery of the same, he had filed this false claim against the management directly before this court. In the end, it was mentioned in this letter that the workman herein was to give reply to this letter and to join his duties within two days of receiving of this letter otherwise it was to be presumed that he was not interested to join his duties. Admittedly, the workman received this letter of the management and admittedly he did not give any reply to this letter of the management. I have also not found any reply of the workman on record pertaining to this letter qua taking of Rs. 30000/ as advance by the workman herein from the management. In my considered opinion, it amounts to abandonment of the job by the workman herein voluntarily rather than termination of his services illegally and/or unjustifiably by the management, as alleged by the workman in his statement of claim.
13. There is an important judgement of Hon'ble Delhi High Court on this point given in the case of [PRECEDENT]. It was held by Hon'ble Delhi High Court in this case that if a workman fails to resume his duty when an offer was made to him by the management for this purpose, he was not entitled to claim any relief against the management in such like situation. In yet another judgment of Hon'ble Bombay High Court given in the case of [PRECEDENT], the Hon'ble Bombay High Court held mainly to the effect that the workman cannot reap the benefit of his own fault when he fails to respond to the offer of the employer to join duties and more particularly when such offer was repeated before the conciliation officer as well as before the labour court. In the case under discussion, the management made an offer to the workman herein out of court as well as before this court on 29.10.2007 asking him to resume his duty with the management but the workman did not respond to such offer of the management for the reasons best known to him.
14. There is another judgment on this point given by Hon'ble Delhi High Court in [PRECEDENT]. In this judgment also, Hon'ble Delhi High Court held to the effect that when the workman absented from his duties and did not join his duties in spite of letters sent to him, his services cannot be considered to be terminated and he was not found entitled to any relief against the management in such like case.
15. There is another important case of Hon'ble Delhi High Court on this point given in the case of [ENTITY] vs. Gopal Narain & Sons & Anr. 2006 LLR 1142 (Delhi High Court). Hon'ble Delhi High Court held in this judgment mainly to the effect that where the employer writes letters to a workman to join duties since he was absenting, it cannot be said to be the case of termination of service of workman. It was further held by the Hon'ble Delhi High Court in this judgment that if the employee does not come to join duties in compliance to the offer made by the management, such an employee could not have raised any dispute against the management about termination of his services in such like cases.
16. In the instant case also, the workman did not join the duties with the management despite offer made by the management to him for joining his duties out of court as well as before the court itself.
17. In my considered opinion, the ratio of the above mentioned cited authorities is found fully applicable to the facts and circumstances of the present case also.
18. In view of the above mentioned discussion coupled with entire oral as well as documentary evidence on record, I am of the considered opinion that it was a case of voluntarily abandoning the services of the management by the workman himself at his own will and accord rather than termination of his services illegally and/or unjustifiably by the management, as alleged by the workman. Hence, the workman has miserably failed to prove this issue in his favour by way of any cogent evidence, either oral or documentary. Accordingly, this issue is decided against the workman and in favour of the management.
19. The primary burden of proof of this issue was upon the management. The management has consistently taken the plea and such plea also taken in the preliminary objection of WS that the workman himself abandoned his job rather than his services terminated illegally by the management. The further contention of the management was that in such a situation, the workman was not entitled to raise an industrial dispute of this nature before this court.
20. I find support in the above mentioned contentions of the management.
21. In reaching to the above conclusion, I also find support from the judgment of Hon'ble Delhi High Court given in [ENTITY]'s Case (Supra) in which it was also held, interalia, that if an employee did not come to join his duty despite offer of management made to such an employee asking him to join his duties, such an employee could not raise an industrial dispute against the management about termination of his services. To my considered opinion, the ratio of [ENTITY]'s Case (Supra) is found fully applicable to all fours of the instant case.
22. On the basis of above mentioned discussion, I am of the considered opinion that the management side has been successful to prove before this court that claim of the workman was not maintainable in its present form. Accordingly, this issue is also decided against the workman and in favour of the management. ISSUE NO. 3 : RELIEF:
23. In view of the findings of this court on issue nos. 1 and 2 to the above effect, I am of the considered opinion that the claimant herein is not entitled to claim any relief against the management. An award is passed to the above effect.
24. A copy of this Award be sent to the Secretary (Labour), Govt. of NCT of Delhi for publication as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court today (DR. [ENTITY]) i.e. on 20.05.2010 Presiding Officer Labour Court No. IX Karkardooma Courts, Delhi