ID NO. 347/05(old), 82/09(new) IN THE COURT OF DR. [ENTITY], PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI ID NO. 347/05(old), 82/09(new) Date of Institution : 18.10.2005 Date on which award reserved : 15.03.2010 Date of passing of award : 16.03.2010 BETWEEN THE WORKMAN SH. MOHAN SINGH S/O SH. SABAL SINGH C/O DELHI DALIT MAZDOOR VIKAS SANGTHAN(REGD) A2, JAWAHAR CAMP LAKKAD MANDI, KIRTI NAGAR, NEW DELHI - 15. AND THE MANAGEMENT OF M/S MEHFIL RESTAURANT WZ40/41, SUBHASH NAGAR, RED LIGHT, MAIN ROAD, NAZAFGARH, NEW DELHI 18 AWARD 1.
The workman has directly filed his statement of claim before this court u/[SECTION] of [ACT], (in short ID Act) as applicable to Delhi.
2. The main averments of the statement of claim filed by the workman are to the effect that he had been working with the management for last one year at the post of 'Waiter' drawing wages @ Rs. 2400/ per month; that he had worked honestly and sincerely with the management and did not give any chance of any complaint to the management during the ID NO. 347/05(old), 82/09(new) tenure of his service; that when he demanded certain legal facilities due to him like appointment letter, attendance card, minimum wages, PF, Bonus etc., the management became annoyed and illegally terminated his services w.e.f. 21.08.05 without any justified reasons. Lastly, a prayer was made for his reinstatement with full back wages, continuity of service and all other consequential benefits as per law.
3. The averments of the statement of claim have been strongly opposed in the written statement (in short W/S) filed on behalf of the management.
4. In the W/S, it is averred, interalia, that the claimant has filed a false claim in this matter; that he did not work for 240 days with the management in a calender year; that he himself abandoned his job without any prior intimation to the management w.e.f. 21.08.05; that whatever was due to him upto 21.08.05, the same was paid to him as per rules; that nothing was due to him from the management after 21.08.05. Lastly, a prayer was made to dismiss his statement of claim.
5. On the basis of the pleadings of the parties, following issues were framed on 06.07.2006:
1. Whether the workman was illegally and/or unjustifiably terminated from service by the management, as alleged in the statement of claim? OPW
2. Whether the workman intentionally and deliberately abandoned his job on his own w.e.f. 21.08.05? OPM
3. Relief
6. From the side of the workman, he himself examined as WW1 and ID NO. 347/05(old), 82/09(new) also filed his affidavit in support of his contentions and then evidence of the workman was closed.
7. From the side of the management, MW1 Sh. [ENTITY] was examined and he also filed his affidavit in support of the contentions of the management and then evidence of the management was also closed.
8. Oral final arguments were not submitted in this case from the side of the workman despite sufficient time given for this purpose to the workman side. Such oral final arguments were submitted on behalf of the management which were almost the repetitions of the averments of the pleadings of the management on record.
9. In the interest of justice, a further opportunity was given to both sides for filing of written synopsis of final arguments but the same have not been filed on record from any side.
10. I perused the entire judicial file minutely and my issuewise decision is as under: ISSUE NOs. 1 & 2
11. I have taken up both these issues together because to my considered view, both these issues are interconnected with each other and can be decided by the same reasoning.
12. The primary burden of proof of issue no. 1 was upon the workman and the primary burden of proof of issue no. 2 was upon the management.
13. In coming to the above 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 his 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 non existence of a fact contended to by a party. It was further held in his 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.
14. In coming to the conclusion, I further find support from an 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 to the effect that [SECTION] of [ACT] (in short [ACT]) postulates that whoever desires in court as to any legal right and liability dependent on the existence of facts which he asserts, must prove that those facts exists. 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 ID NO. 347/05(old), 82/09(new) that person. Reference was also made by the Hon'ble High Court to the provisions of [SECTION], [SECTION] and [SECTION] of the [ACT] pertaining to burden of proof in such like cases.
15. Now turning to the evidence on record of the workman himself pertaining to these issues, he himself admitted in his crossexamination that he brought the ESI Card regarding his proof of working for 240 days; that he met the management on 21.08.2005; that it was correct that he was doing the strike alongwith coworkers in August 2005. He denied the suggestion that he had taken loan in sum of Rs. 25,000/ from the management on 22.04.2005 but he has not added anything further as to on what basis he denied this suggestion. He further deposed that they all stopped attending their duties in protest as the management did not take other workers back on duties w.e.f. 06.05.2005.
16. Now turning to the evidence of MW1 on record, he deposed in his affidavit filed by him in lieu of his examination in chief mainly to the effect that the claimant was appointed by the management on 04.05.2002 as a waiter but he himself left the job of the management on 20.08.2005 without any sanction of the leave and without intimation of the same to the management; that the management several times called upon him to return to his job but he did not join his duties; that the claimant started strike on 20.08.2005 alongwith coworkers of the management and did not join his duties with the management despite repeated requests made to him in this regard. This witness was not at all crossexamined by and on behalf of the workman despite sufficient time given to workman side ID NO. 347/05(old), 82/09(new) for this purpose. Hence, there is no rebuttal at all of these facts deposed by MW1 on behalf of the management from the side of the workman.
17. On the basis of above mentioned discussion coupled with entire material on record, I am of the considered opinion, that the workman intentionally and deliberately abandoned his job at his own will and accord w.e.f. 21.08.2005 and hence there was no question of termination of his services by the management illegally and/or unjustifiably, as alleged. Accordingly, both these issues are decided against the workman and in favour of the management.
ISSUE NO. 3: RELIEF
18. In view of the findings of this court on issue nos. 1 and 2 to the above effect, I am further of the considered opinion that the workman is not entitled to any relief in this matter against the management.
19. An award is passed to the above effect.
20. 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 16.03.2010 Presiding Officer Labour Court No. IX Karkardooma Courts, Delhi