1 IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA COURTS: SHAHDARA : DELHI [CASE NUMBER] Date of Institution : 03.11.2004 Award Reserved : 20.08.2007 Date of Award : 20.08.2007 BETWEEN CLAIMANT SMT. MURSHID BASHIR, S/O SH. BASHIR AHMED C/O ALL INDIA GENERAL KAMGAR UNION (A.P.M. BRANCH) F17,MAHENDRA PARK, Delhi110033. AND MANAGEMENT M/s BHARDWAJ FRUIT AGENCY C69, (BASEMENT) AZADPUR, DELHI AWARD 1. Claim was filed under [SECTION] of the [ACT] (hereinafter referred to as Act) by the claimant pleading therein the following averments : He worked with the management as a 'Munshi (Clerk)' since 2000 at monthly wages of Rs.5000/. He had good service record and never gave any cause of complaint to the management. Management did not provide him legal facilities such as Providend Fund, Employee State Insurance contributions, gratuity, overtime allowance. Management also did not maintain his service record. When he demanded legal facilities management terminated his services [CASE NUMBER] 2 on 31.03.2004. He remained unemployed since the date of termination of his services. He has prayed for his reinstatement with full back wages. 2. Management was proceeded against exparte by my learned predecessor vide his order dated 01.09.2005. 3. Applicant examined himself as WW1 and thereafter close his evidence. 4. I have carefully perused the material available on the record and have hearded Authorized Representative for the workman. 5. Claimant has to prove that he worked for at least 240 days continuously with the management in a year immediately preceding the date alleged termination of his services as per [SECTION] of the Act. 6. In [PRECEDENT] The Hon'ble Apex Court held that : [CASE NUMBER] 3 "For applicability of [SECTION] of the [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." 6. 7. Onus is on the claimant to prove that he had rendered 240 days of continuous service as is clear from the following judgments : 8. In [PRECEDENT] 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 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."
9. In case of [PRECEDENT], 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 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."
10. In [PRECEDENT] 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.
11. In [PRECEDENT] Hon'ble Apex Court said that the onus was on the claimant to prove that he is a workman.
12. In [PRECEDENT] 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 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."
13. Applicant has relied upon documents ExWW1/1 to ExWW1/3. ExWW1/1 is a photocopy of his demand notice sent to the management vide postal receipts ExWW1/2 & ExWW1/3.
14. Apart from his oral testimony there is nothing on record which may prove his employment with the management. Since he has not been able to prove that he worked for at least 240 days continuously with the management, he is not entitled to any relief. File be consigned to record room.
Announced in the open PRESIDING OFFICER court today. LABOUR COURT NO. XIII Date : 20.08.2007 KARKARDOOMA COURTS DELHI