IN THE COURT OF DR . [ENTITY] ADDL . DISTRICT & SESSIONS JUDGE PRESIDING OFFICER LABOUR COURT, KARKARDOOMA COURTS, DELHI ID NO. 455/10 Mr. [ENTITY] VERSUS M/s [ENTITY] & Another The Management ORDER
This order will dispose of applications dated Nil filed on 29.03.2011 of both the managements for correction or modification of issues.
2. It has been mentioned in the applications that this court framed issues on 25.01.2011 (incorrectly mentioned as 25.02.2011) and burden to prove the issue No. 1 was placed on management No. 1 and burden to prove issue No. 2 was placed on management No. 2. The burden of proof should have been placed on the workman as laid down by High Court of Delhi and Supreme Court. It has been prayed that burden/onus may be placed on the workman.
3. Authorized Representative for the workman did not file any formal reply to this applications. However, he vehemently opposed and submitted that burden of proof was rightly placed on the management No. 1 and management No. 2.
4. Counsel for the management further relied on a case [PRECEDENT]. The Supreme Court held that:
"More recently, in [PRECEDENT], this Court has reiterated the prrincipal 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 for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer."
5. Counsel for the management further relied on a case Range Forest Officer Vs. S.T. Hadimani, 2002 (3) SCC 25, wherein Hon'ble Supreme Court while dealing with the question of proof of employment observed as under:-
"In arriving at the conclusion that the respondent had worked for 240 days the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year. 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 preceding his termination."
6. My attention goes to a case [PRECEDENT] It was held by Apex Court that:
"Analysing 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 wages 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 wages 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 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."
[Emphasis added]
7. My attention also goes to a case [PRECEDENT] The Hon'ble High Court observed that:
"A specific objection has been taken by the Company in its reply that the Respondent was not a workman within the meaning of [SECTION] of the Act. The onus thus was upon the Company as the workman had already discharged his onus."
8. On considering the arguments of Ld. Counsels for the managements, I am of the view that onus to prove issue No. 1 and issue No. 2 was rightly placed on management No. 1 and management No. 2 respectively. The reasons which support my decision, are firstly, that as per principles of law laid down in cases relied on by Counsel for the management No. 1 and in case of [PRECEDENT] (supra), the initial burden to prove that there existed relationship of employer and employees between the parties is on the workman and thereafter the burden is on the management to rebut that there existed no relationship of employer and employees between the parties.
9. Secondly, the management No. 1 has specifically pleaded that there was no relationship of employer and employee between the management No. 1 and the workman and management No. 2 specifically pleaded that number of working days of the workman with management No. 2 were less than 240 days. Therefore, as per principles of law laid down in case of [PRECEDENT], (supra), the burden of proof is on the management No. 1 to prove that there existed no relationship of employer and employees between the parties and the burden of proof is on the management No. 2 that the number of working days of workman with management No. 2 were less than 240 days.
10. Thirdly, issue No. 1, i.e. "whether there was no relationship of employer and employee between the management No. 1 and the workman and if so, to what effect. OPM-1?" and issue No. 2 i.e. "whether the workman had worked with management No. 2 for a period of less than 240 days and if so, to what effect? OPM-2" were framed on specific plea of the management No. 1, and management No. 2, otherwise there was no necessity of framing of these issues as in order to prove issue No. 3, the burden is on the workman to prove not only relationship of employer and employee between the parties but also that he had been continuously working with the managements for a period of not less than 240 days in one calendar year and further that the managements violated the provisions of the [ACT] or with principles of natural justice.
11. In view of the above reasons and discussion, I do not find any merit in the applications. Therefore, applications of the management No. 1 and management No. 2 are dismissed.
Announced in open court on this 2nd day of April, 2011.
(DR. [ENTITY]) Additional District & Sessions Judge Presiding Officer: Labour Court Karkardooma Courts, Delhi.