IN THE COURT OF SH[CASE NUMBER] [ENTITY] ADDITIONAL DISTRICT & SESSIONS JUDGE PRESIDING OFFICER, LABOUR COURT NO[CASE NUMBER] XII, KARKARDOOMA COURTS, DELHI[CASE NUMBER] ID No[CASE NUMBER] 297/2006 INDUSTRIAL DISPUTE BETWEEN Sh[CASE NUMBER] [ENTITY] S/o[CASE NUMBER] Sh[CASE NUMBER] [ENTITY] C/o[CASE NUMBER] General Mazdoor Lal Jhanda Union, 47, Amichand Khand, Giri Nagar, Kalkaji, New Delhi[CASE NUMBER] [ENTITY] AND 1[CASE NUMBER] M/s[CASE NUMBER] [ENTITY], B49, Okhla Industrial Area, PhaseIII, New Delhi20[CASE NUMBER] 2[CASE NUMBER] M/s[CASE NUMBER] [ENTITY], B49, Okhla Industrial Area, PhaseIII, New Delhi20[CASE NUMBER] Managements Date of institution : 22[CASE NUMBER]11[CASE NUMBER]2004 Date of argument : 25[CASE NUMBER]08[CASE NUMBER]2010 Date of award : 31[CASE NUMBER]08[CASE NUMBER]2010 AWARD 1[CASE NUMBER] An Industrial Dispute between the management of M/s[CASE NUMBER] [ENTITY], B49, Okhla Industrial Area, PhaseIII, New Delhi20 and its workman Shri Rajvnash S/o[CASE NUMBER] Sh[CASE NUMBER] [ENTITY] C/o[CASE NUMBER] General Mazdoor Lal Jhanda Union, 47, Amichand Khand, Giri ID 297/2006 Page 1 of 20 Nagar, Kalka ji, New Delhi[CASE NUMBER] was referred by Secretary (Labour), Government of National Capital Territory of Delhi for adjudication in exercise of powers conferred by [SECTION] and [SECTION] of the [ACT] (hereinafter to be referred as Act) vide his Order No[CASE NUMBER][CASE NUMBER]/Lab[CASE NUMBER]/60919608 dated 04[CASE NUMBER]10[CASE NUMBER]2004 with the following terms of reference : "Whether services of Sh[CASE NUMBER] [ENTITY] S/o[CASE NUMBER] Sh[CASE NUMBER] [ENTITY] have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?" 2[CASE NUMBER] On receipt of reference notice was issued to the workman through Union[CASE NUMBER] The workman has filed his statement of claim[CASE NUMBER] 3[CASE NUMBER] Briefly stated, the claim of the workman is that he joined the management in November 1980 as a Painter and his last drawn wages were Rs[CASE NUMBER] 4600/ per month[CASE NUMBER] He did not give any cause of complaint to the management[CASE NUMBER] The management did not extend the legal facilities to him for which he made consistent demands[CASE NUMBER] Through Union, he made a complaint to ESI Department and ESI Department conducted an inquiry[CASE NUMBER] On inquiry the management told them that the name of firm was M/s[CASE NUMBER] V[CASE NUMBER] Chhabara & Associates and not M/s Dee Jay & Company[CASE NUMBER] This infuriated the management and management terminated his services on 23[CASE NUMBER]10[CASE NUMBER]2003 withholding his wages for the month of October 2003, without giving any notice and without displaying any seniority list[CASE NUMBER] The workman has worked for more than 240 days[CASE NUMBER] The termination was illegal and unjustified[CASE NUMBER] Complaints ID 297/2006 Page 2 of 20 were made to Authorities, demand notice was also sent but to no avail[CASE NUMBER] At the time of his termination juniors to the workman were working and even today the management is retaining junior employees and also recruited fresh hands[CASE NUMBER] The workman is unemployed since the date of his termination[CASE NUMBER] The workman prayed for reinstatement with continuity of service and full back wages[CASE NUMBER] 4[CASE NUMBER] Notice of claim was sent to the managements which contested the same by filing a written statement[CASE NUMBER] 5[CASE NUMBER] Briefly stated, the case as put forth by management is that it is a very small scale establishment involved in the manufacture and sale of wooden furniture as per demand /order and work of the management is not of regular nature or systematic[CASE NUMBER] It is admitted in written statement that the workman had started working with the management since 1[CASE NUMBER]04[CASE NUMBER]2003 at the post of helper/part time carpenter on daily basis @ Rs[CASE NUMBER]136/ per day and not on regular basis and worked with the management till 23rd October, 2003 and not worked for 240 days[CASE NUMBER] It is alleged that workman had left his service on 23rd October, 2003 without any sanctioned leave or information and not terminated by the management[CASE NUMBER] The submissions on merits are also in the above terms and the management has denied the entire case of the workman[CASE NUMBER] 6[CASE NUMBER] A rejoinder to the written statement was filed by the workman[CASE NUMBER] In the rejoinder workman controverted the averments as contained in the written statement and reaffirmed the averments as stated in the statement of claim[CASE NUMBER] 7[CASE NUMBER] From the pleadings following issues were framed by my Ld[CASE NUMBER] ID 297/2006 Page 3 of 20 Predecessor on 15[CASE NUMBER]2[CASE NUMBER]2006 : 1[CASE NUMBER] Whether the workman worked for a period of 240 days with the management just preceeding the date of termination? 2[CASE NUMBER] As per terms of reference[CASE NUMBER] 3[CASE NUMBER] Relief[CASE NUMBER] 8[CASE NUMBER] Both parties were directed to lead evidence on the issues[CASE NUMBER] 9[CASE NUMBER] [ENTITY] examined himself as WW1[CASE NUMBER] He filed his affidavit Ex[CASE NUMBER]WW1/A[CASE NUMBER] He relied upon documents Ex[CASE NUMBER]WW1/1 to Ex[CASE NUMBER] WW1/38[CASE NUMBER] Another witness Sh[CASE NUMBER] [ENTITY], Labour Inspector, was examined as WW2[CASE NUMBER] Both WW1 and WW2 were crossexamined by AR for the management[CASE NUMBER] 10[CASE NUMBER] The management examined only one witness[CASE NUMBER] The management has filed affidavit of Shri [ENTITY], its Manager as MW1, who relied upon documents Ex[CASE NUMBER] MW1/1 to Ex[CASE NUMBER] MW1/8 and EX[CASE NUMBER] WW1/M1 to M3 and he was crossexamined by the AR of the workman[CASE NUMBER] 11[CASE NUMBER] The workman also filed an application dated 15[CASE NUMBER]02[CASE NUMBER]2006 for production of record[CASE NUMBER] The same was replied on 13[CASE NUMBER]03[CASE NUMBER]2006[CASE NUMBER] My ld[CASE NUMBER] Predecessor vide order dated 13[CASE NUMBER]03[CASE NUMBER]2006 directed the management to produce the record[CASE NUMBER] The same was without prejudice[CASE NUMBER] On the next date of hearing the record was not produced and the management sought some time[CASE NUMBER] Then some record was produced on 19[CASE NUMBER]10[CASE NUMBER]2006 by the management and the workman stated that it was not complete record as per the requisition[CASE NUMBER] 12[CASE NUMBER] I have heard the Ld[CASE NUMBER] authorized representatives (hereinafter ID 297/2006 Page 4 of 20 to be referred as AR) for the parties[CASE NUMBER] Both the parties have also filed written submissions[CASE NUMBER] 13[CASE NUMBER] ARW has argued that the Labour Court, getting jurisdiction of the industrial dispute, by the order of reference cannot travel beyond the same[CASE NUMBER] It has to presume the termination[CASE NUMBER] The plea of absenteeism cannot be considered in view of the reference order[CASE NUMBER] Alternatively, even if the same can be considered the onus to prove the same was on the management which has failed to prove the same[CASE NUMBER] There is no oral and documentary evidence on this aspect[CASE NUMBER] There is no plea that any inquiry was conducted by the management, which is mandatory as absenteeism is a misconduct[CASE NUMBER] 14[CASE NUMBER] ARW argued that as per the settled law the workman can discharge the burden of proof of continuous service of 240 days by steeping into the witness box and by summoning the record from the management[CASE NUMBER] The evidence is selfspeaking that the burden stands discharged[CASE NUMBER] As the management failed to produce the record by harping on the plea of incident of fire but did not examine any witness from the Fire Department it has not discharged the burden of proof[CASE NUMBER] There an adverse inference is liable to be drawn against the management[CASE NUMBER] 15[CASE NUMBER] ARW also argued that just by being a daily wager the workman cease to be so or comes under the exception of [SECTION][CASE NUMBER] The management has proved no appointment letter to show that terms of contract of employment or any other similar document[CASE NUMBER] Alternatively, it has been argued that if the case of the workman is not ID 297/2006 Page 5 of 20 covered under [SECTION] of the [ACT] for want of continuous employment of 240 days, the termination is still illegal for want of compliance of the provisions of [SECTION] and [SECTION] of the [ACT][CASE NUMBER] The workman has discharged his initial onus of proof and the same shifted to the management[CASE NUMBER] The management failed to discharge the onus so shifted as it did not produce the record sought, thereby attracting the adverse inference[CASE NUMBER] 16[CASE NUMBER] ARM argued that the claimant/workman has not proved any record to establish that the workman completed continuous service of 240 days in the preceding year[CASE NUMBER] He has admitted that he has not other documents except those filed on record on this aspect[CASE NUMBER] He has admitted that he did not get issued any demand notice[CASE NUMBER] He has also admitted that he was asked by the management to fill the ESI form[CASE NUMBER] He also admitted the voucher of receipt of wages for October 2003 as WW1/M1in which he has been shown as daily wages[CASE NUMBER] This was received in the presence of the Conciliation Officer[CASE NUMBER] Similarly he has admitted the receipt of his wages by putting signatures in the Wages Register[CASE NUMBER] On the other hand, the management through its witness MW1 has proved that the claimant did not work for 240 days[CASE NUMBER] It has also been proved through that witness that the claimant has of his own volition stopped to come for his duty since 23rd October 2003[CASE NUMBER] 17[CASE NUMBER] ARM impugned the testimony of the Labour Inspector, WW2 stating that the report is on a printed format[CASE NUMBER] He stated that he neither has nor could produce the Inspection Report[CASE NUMBER] ID 297/2006 Page 6 of 20 18[CASE NUMBER] ARM further argued that the management has proved on record through the Police Report and Fire Departments' Report the factum of the documents getting gutted in an incident of fire at the management's premises, thus for the act of force majure (Act of God) the management is not liable for any adverse inference[CASE NUMBER] The documents produced by the management were maintained by in the ordinary course of business therefore they are to be taken at face value and to be believed[CASE NUMBER] The court has to raise the presumption on the analogy of [SECTION] of the [ACT], notwithstanding the fact that the law of evidence are not applicable to the Labour Courts[CASE NUMBER] 19[CASE NUMBER] ARM closed his arguments stating that the claimant failed to prove continuous service of 240 days in the preceding year, thus not being a workman entitled for the benefit of [SECTION] of the [ACT][CASE NUMBER] There is no termination of his services, and it is a case of willful absenteeism[CASE NUMBER] When there is no termination there is no question of it being illegal or unjustified[CASE NUMBER] 20[CASE NUMBER] Written arguments of the parties were on similar lines as above[CASE NUMBER] The parties also cited case law[CASE NUMBER] 21[CASE NUMBER] No other point was urged[CASE NUMBER] 22[CASE NUMBER] My findings on issues are as under: ISSUE NO[CASE NUMBER] 1[CASE NUMBER] Whether the workman worked for a period of 240 days with the management just preceding the date of termination? 23[CASE NUMBER] The Hon'ble Supreme Court of India in [PRECEDENT] Page 7 of 20 [PRECEDENT] decided on 03[CASE NUMBER]10[CASE NUMBER]2008 has considered various case law and arrived at a finding that a person, whether employed in temporary, part time, adhoc or casual capacity comes within the definition of workman if he satisfies the necessary eligibility conditions of [SECTION] of the [ACT][CASE NUMBER] It has been held as under: "A bare perusal of the two definitions would reveal that their applicability is not limited only to full time employees but all that is required is that the workman claiming continuous service must fulfill the specific conditions amongst others laid down in the two provisions so as to seek the shelter of [SECTION][CASE NUMBER] In the above case, Hon'ble the Supreme Court has finally held that: "The question as to whether a parttime workman would be covered within the definition of [SECTION] of the Act and whether he would be entitled to the benefit of continuous service under [SECTION] and the benefit of [SECTION], is answered in favour of the workmanrespondent[CASE NUMBER]"
25[CASE NUMBER] Thus what is to be seen in the present case is if the workman has discharged the onus of proof and fulfilled the eligibility criteria laid down in the Act to be eligible for protection of [SECTION] of the [ACT][CASE NUMBER]
26[CASE NUMBER] The general principle of law of evidence is that he who asserts must prove[CASE NUMBER] It is also the settled law that all that the burden of proof means is as to who has the right to begin leading evidence[CASE NUMBER] Though the burden of proof always remains fixed but the onus of proof keeps on shifting[CASE NUMBER] Therefore when both the parties have lead the evidence, the question of burden of proof fades into insignificance and the entire evidence is to be appreciated as a whole[CASE NUMBER]
27[CASE NUMBER] In this backdrop of legal position the evidence in the present matter has to be appreciated[CASE NUMBER] The 'rule of best evidence' has also been the guiding force in this process of appreciation of evidence on record[CASE NUMBER]
28[CASE NUMBER] Various Legislation in the filed of Labour law have cast an obligation upon the employer to maintain certain records[CASE NUMBER] There is no corresponding obligations upon the workman[CASE NUMBER] For example, it is the duty of the employer to issue an appointment letter, to maintain the record of attendance or wages and such obligation is not of the workman[CASE NUMBER]
29[CASE NUMBER] Therefore the best evidence in this regard is available with the management and there is no reason or justification why the Court should be deprived of the same[CASE NUMBER] The Labour Court is to function like a Commission of Inquiry and its jurisdiction is not fettered by the strict rules of civil procedure or law of evidence[CASE NUMBER]
30[CASE NUMBER] The workman before beginning his evidence has called upon the management to produce the following record:
(i)[CASE NUMBER] Muster Roll (197879 to 200405)
(ii)[CASE NUMBER] Wages Register (200102 to 200405)
(iii)[CASE NUMBER] Seniority list or statement in lieu thereof
(iv)[CASE NUMBER] Balance Sheet (200102 to 200405)
(v)[CASE NUMBER] The number of employees as shown in the balance sheet (200102 to 200405) and the payment made for salaries and the corresponding figures in the Wages Register for the corresponding period[CASE NUMBER]
(vi)[CASE NUMBER] Partnership Deed
(vii)[CASE NUMBER] Names/Addresses etc[CASE NUMBER] of the Partners[CASE NUMBER]
31[CASE NUMBER] The management voiced its objections against the above application on various grounds[CASE NUMBER] It pleaded that as per the latest law the management cannot be asked to produce documents for more than ten years; the management cannot be compelled to produce the documents as the workman has to prove his case; the documents sought are not relevant to the inquiry and that the application is perpetuated by oblique motives[CASE NUMBER]
32[CASE NUMBER] The management produced certain records as per the list of documents dated 19[CASE NUMBER]10[CASE NUMBER]2006[CASE NUMBER] These documents have been tendered on record as Ex[CASE NUMBER] MW1/1 to MW1/6[CASE NUMBER]
33[CASE NUMBER] The record which has not been produced by the management is the following:
(i)[CASE NUMBER] Seniority list or statement in lieu thereof
(ii)[CASE NUMBER] The number of employees as shown in the balance sheet (200102 to 200405) and the payment made for salaries and the corresponding figures in the Wages Register for the corresponding period[CASE NUMBER]
(iii)[CASE NUMBER] Partnership Deed
(iv)[CASE NUMBER] Names of the Partners[CASE NUMBER]
34[CASE NUMBER] It is settled law that adverse inference cannot be drawn just on the asking of a party[CASE NUMBER] Before an adverse inference can be drawn, it has to be shown that the record sought to be produced is relevant to the inquiry before the Court; that the same is in power and possession of the adversary; that a due notice has been given to the adversary to produce the same and that the same has not been produced despite the opportunity[CASE NUMBER]
35[CASE NUMBER] The record of Partnership Deed and the Names of the Partners has no relevance to the inquiry and it is admitted position that the management is a proprietorship concern, hence these two records are not relevant to the inquiry[CASE NUMBER]
36[CASE NUMBER] The record of number of employees as shown in the balance sheet (200102 to 200405) and the payment made for salaries and the corresponding figures in the Wages Register for the corresponding period also shows no relevance the wages register and balance sheet have been produced[CASE NUMBER] No requirement of law has been cited before me that the management is under any obligation to mention the numbers of the employees/workmen in the balance sheet[CASE NUMBER] The workman has not argued or shown to me that there is any mismatch in the figures of wages as shown the Wages Register and the corresponding figures in the balance sheet/profit and loss account[CASE NUMBER] Therefore in my view no case for drawing any adverse inference is made out in the facts and circumstances of the case on this aspect[CASE NUMBER]
37[CASE NUMBER] The management has not produced the Seniority list or statement in lieu thereof[CASE NUMBER] This aspect of the matter will be discussed elsewhere in the judgment[CASE NUMBER]
38[CASE NUMBER] In [PRECEDENT] it has been held initial burden of proof to show 240 days of continuous service is upon the workman[CASE NUMBER] Onus of proof does not shift merely because employer fails to prove a defence or an alternative plea of abandonment of service[CASE NUMBER] Filing of an affidavit of workman to the effect that he had worked for 240 days continuously or the workman has made repeated representations or raised demands for reinstatement, is not sufficient evidence that can discharge the said burden[CASE NUMBER] Other substantive evidence needs to be adduced to prove 240 days' continuous service[CASE NUMBER]
39[CASE NUMBER] In the case of [PRECEDENT] it has also been held that the presumption as to adverse inference for nonproduction of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis[CASE NUMBER] Furthermore, a party in order to get benefit of the provisions contained in [SECTION] of the [ACT] must place some evidence in support of his case[CASE NUMBER]
40[CASE NUMBER] The workman as WW1 has admitted that he does not any document except the documents filed in the case to show his employment since the year 1980[CASE NUMBER]
41[CASE NUMBER] The entire documentary evidence tendered by the workman in this case pertains to the year 2003 only and this entire evidence is of selfserving nature[CASE NUMBER] The inland letters purported to have been received by the workman also sail in the same boat and by themselves not sufficient to prove the plea of the workman or show that he was employed with the management or had completed 240 days of service[CASE NUMBER] As per the settled law these documents do not further the case of the workman to discharge the onus of proof on this issue[CASE NUMBER]
42[CASE NUMBER] There is no independent evidence of his being in the employment of the management since November 1980 as pleaded by the workman[CASE NUMBER] The entire documentary evidence of the workman pertain to the year whereas the workman has alleged illegalities, non extension of legal benefits etc[CASE NUMBER] since inception[CASE NUMBER] His silence since 1980 to 2002 does not inspire confidence in the mind of the Court about the truth of the statement made by him[CASE NUMBER] Why the workman kept silent for over two decades and then immediately flared up is unexplained[CASE NUMBER]
43[CASE NUMBER] Even the evidence of the Labour Inspector as WW2 could not clinch on this issue[CASE NUMBER] Though no infirmity can be found with the report of the Labour Inspector being on a printed format, as it is usual in any department to have printed formats to cover various situations[CASE NUMBER] However, documents Ex[CASE NUMBER] WW1/20 and WW1/24 are not the actual reports but what has been conveyed to the Union representing the workman purported to be based upon the Inspection Report of WW2[CASE NUMBER] WW2 has stated that he cannot bring the said inspection report[CASE NUMBER] The same being material and a genesis for the issue of documents Ex[CASE NUMBER] WW1/20 and WW1/24 is essential for the just decision of the case[CASE NUMBER] Whatever be the reason and circumstances for not bringing the original inspection report the fact remains that these documents documents Ex[CASE NUMBER] WW1/20 and WW1/24 do not help the workman in proving 240 days of continuous service of the workman[CASE NUMBER]
44[CASE NUMBER] The management has tendered on record documents Ex[CASE NUMBER] MW1/7 and Ex[CASE NUMBER] MW1/8 which are report by the Fire Office and Police Report about the incident of fire in which furniture and records of the management have been gutted[CASE NUMBER] The officials from the Fire department and Police were not summoned to prove these documents[CASE NUMBER] The management has failed to bring the originals of Ex[CASE NUMBER] MW1/1 to MW1/6 on the plea of entire record getting burnt in the fire[CASE NUMBER]
45[CASE NUMBER] Guided by the law laid down in [PRECEDENT] I am of the view that despite the fact that the management has failed to produce the original record there is no positive evidence from the workman's side regarding his plea of continuous service of 240 days, therefore no case for drawing adverse inference against the management is made out[CASE NUMBER]
46[CASE NUMBER] Therefore the workman has failed to prove plea of continuous service of 240 days and this issue is answered against him[CASE NUMBER] ISSUE NO[CASE NUMBER] 2: As per the terms of Reference:
47[CASE NUMBER] The reference is regarding illegal and/or unjustified termination[CASE NUMBER] The management has taken the plea of absenteeism or abandonment of employment on the part of the workman[CASE NUMBER]
48[CASE NUMBER] The [ACT] has not defined the term abandonment[CASE NUMBER] Abandonment is infact a question of fact[CASE NUMBER] The onus lies upon the employer to prove the plea of abandonment[CASE NUMBER] In [PRECEDENT] it has been held by the Supreme Court of India that burden of proving that the workman had voluntarily left services fell on the employer[CASE NUMBER]
49[CASE NUMBER] Abandonment of employment depends upon intention as to whether he wants to work or relinquish the job[CASE NUMBER] However the intention is a state of mind and is known only to the person who holds such a state of mind[CASE NUMBER]
50[CASE NUMBER] It has been held in [PRECEDENT] that to constitute abandonment there must be total or complete giving up of duties so as to indicate an intention not to resume the same[CASE NUMBER] Thus whether there has been a voluntary abandonment of service or not is a question of fact which has to determined in the light of the surrounding circumstances of each case[CASE NUMBER] It must be total and under such circumstances as clearly to indicate an absolute relinquishment[CASE NUMBER] The intention may be inferred from the acts and conduct of the party[CASE NUMBER]
51[CASE NUMBER] In [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and M/S [PRECEDENT] it has been held by the Hon'ble Supreme Court of India that an enquiry is imperative for the employer to succeed in the plea of abandonment[CASE NUMBER]
52[CASE NUMBER] From the testimony of MW1 it is crystal clear that the management has admittedly conducted no enquiry in the matter[CASE NUMBER] Thus the plea of absenteeism or abandonment is a stillborn child[CASE NUMBER] The plea fails for this reason[CASE NUMBER]
53[CASE NUMBER] MW1 has admitted that no letter of appointment has been issued to the workman[CASE NUMBER] For want of the same, the management cannot harp upon the plea of fixed period or contractual employment[CASE NUMBER] The onus is on the management to prove such contract[CASE NUMBER] Merely because the mode of payment of wages is on daily basis does not make the employment fixed period or contractual within the meaning of [SECTION] of the [ACT][CASE NUMBER] On the same parity of reasoning the statement of MW1 that the work of the management was not of permanent nature does not cut any ice[CASE NUMBER] It is not a seasonal industry[CASE NUMBER]
54[CASE NUMBER] The workman has taken the plea in the statement of claim akin to the provisions of [SECTION] and [SECTION] of the [ACT][CASE NUMBER]
55[CASE NUMBER] [SECTION]G of the [ACT] is a manifestation of the principle of 'Last In First Out' (LIFO)[CASE NUMBER] Similarly [SECTION] of the [ACT] is a preemptive right of the workman[CASE NUMBER]
56[CASE NUMBER] MW1 has stated in his crossexamination dated 18[CASE NUMBER]04[CASE NUMBER]2009 that there was no workman junior in service to the workman on the day he last worked with the management[CASE NUMBER] He denied the suggestion to the contrary[CASE NUMBER] The workman while giving the above suggestion did not mention the name(s) of the workman or workmen who were junior to him and were not retrenched[CASE NUMBER] Thus a bald suggestion carries no weight in the eyes of law[CASE NUMBER] It's denial cannot be treated as an admission[CASE NUMBER] Thus the workman has made out no case under [SECTION] of the [ACT][CASE NUMBER]
57[CASE NUMBER] MW1 has admitted in his crossexamination dated 18[CASE NUMBER]04[CASE NUMBER]2009 that two or three workers were appointed occasionally to meet the exigency after the workman last worked with the management[CASE NUMBER] I have already observed while considering the issue no[CASE NUMBER] 1 that the management has not produced the record of seniority list[CASE NUMBER] Even if the record of the management was gutted in fire the management could have reconstructed the seniority list from the photocopy of the record filed in this court or from other sources[CASE NUMBER] The management was duty bound to do so[CASE NUMBER] Even otherwise, the photocopy of the record of seniority list could have been filed at the time of filing of documents on 19[CASE NUMBER]10[CASE NUMBER]2006 as the fire had taken place only subsequently i[CASE NUMBER]e[CASE NUMBER] on 28[CASE NUMBER]04[CASE NUMBER]2007[CASE NUMBER] Thus an adverse inference is liable to be drawn against the management[CASE NUMBER] By any stretch of imagination the duty cast in [SECTION] is upon the employer and it is not for the workman to haunt the employer's office as a ghost to find out if he is required for reemployment[CASE NUMBER]
58[CASE NUMBER] On the point of [SECTION] I have not believed the workman's version that employees junior to him were retained solely for the reason that the workman did not disclose the names of such employees and the averment being vague[CASE NUMBER] The same cannot be a case with the [SECTION] is a continuing cause of action and the right gets crystallised the moment the management employs a new employee ignoring the preempitve right of the retrenched or terminated (unstigmatic) workman[CASE NUMBER] The fact, whether the management has employed any other workman/workmen, when, how and on what post/terms is within the especial knowledge of the management and it was incumbent upon it to make such disclosures and enforce the pre emption right of the workman[CASE NUMBER] For noncompliance of the same, there is clear violation of [SECTION] on the part of the management[CASE NUMBER]
59[CASE NUMBER] Therefore, the termination which was not illegal and/or unjustified at the inception became so subsequently when the provisions of [SECTION] were violated, as discussed above[CASE NUMBER]
60[CASE NUMBER] This issue is answered accordingly[CASE NUMBER]
61[CASE NUMBER] The workman has claimed reinstatement with full back wages and continuity of service alongwith all other consequential benefits[CASE NUMBER]
62[CASE NUMBER] As regards back wages, the law is crystal clear that onus to prove that the workman was not gainfully employed is on the workman[CASE NUMBER] There is a catena of case law on this aspect to mention few are the judgements of the Hon'ble Supreme Court of India in [PRECEDENT]; [PRECEDENT][CASE NUMBER]
63[CASE NUMBER] In [PRECEDENT] it has been held as under:
"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed[CASE NUMBER] The initial burden is on him[CASE NUMBER] After and if he places material in that regard, the employer can bring on record materials to rebut the claim[CASE NUMBER] In the instant case, the respondent has neither pleaded nor placed any material in that regard[CASE NUMBER]"
64[CASE NUMBER] The present case also sails in the same boat[CASE NUMBER] There is only a statement[CASE NUMBER] No facts or material has been placed on record by the workman to discharge the onus except his own selfserving statement[CASE NUMBER] The said statement is also omnibus and allencompassing in nature[CASE NUMBER] It is more in the nature of an inference, and therefore can hardly be termed as evidence[CASE NUMBER] It is the duty of parties to give evidence on facts and it is the prerogative of Courts to draw inferences from the same[CASE NUMBER] Inferences or opinions given by the parties is no evidence in the eyes of law[CASE NUMBER]
65[CASE NUMBER] What efforts the workman had made to find an alternative job is within his personal and special knowledge[CASE NUMBER] Under [SECTION] of the [ACT] the onus to prove such facts is on the person having such special knowledge[CASE NUMBER] Thus the yoke of burden regarding what prospective employers he approached for job, what was the outcome, how he kept his body and soul together during all these years etc[CASE NUMBER] are all facts which are within the personal knowledge of the workman[CASE NUMBER] These facts are conspicuous by their absence in the evidence of the workman[CASE NUMBER]
66[CASE NUMBER] Thus the onus not having being discharged by the workman it can be said that the onus never shifted in this case and non examination by management on this aspect cannot be construed to have acquiesced in the statement[CASE NUMBER]
67[CASE NUMBER] The workman is a painter[CASE NUMBER] There are opportunities available for such persons to get jobs through selfemployment also[CASE NUMBER] I have appreciated his examination on the aspect of gainful employment and find no justification for grant of back wages[CASE NUMBER] Therefore no back wages are awarded in the facts and circumstances of the present case[CASE NUMBER] I, however, award a cost of Rs[CASE NUMBER] 5500/ to the workman towards litigation expenses[CASE NUMBER]
68[CASE NUMBER] To sum up, the award is passed thereby directing reinstatement of the workman with continuity of service with the management no 1[CASE NUMBER] No back wages are awarded[CASE NUMBER] A cost of Rs[CASE NUMBER] 5500/ is awarded to the workman towards litigation expenses[CASE NUMBER] Award is passed accordingly[CASE NUMBER]
69[CASE NUMBER] A copy of the award be sent to Secretary (Labour) for necessary action and be also sent to server (www[CASE NUMBER]delhicourts[CASE NUMBER]nic[CASE NUMBER]in)[CASE NUMBER] The file be consigned to the record room[CASE NUMBER]
ANNOUNCED IN THE OPEN COURT DATED AUGUST 31, 2010[CASE NUMBER]
([ENTITY]) Presiding Officer Labour Court No[CASE NUMBER] XII, Karkardooma Courts, Delhi[CASE NUMBER]