-1- IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI DID NO. 541/2006 BETWEEN The workman Sh. [ENTITY] S/o Sh. Arun Jha, R/o WP-24, Wazirpur Village, Delhi- 110052. AND The Management of M/s. [ENTITY], A-101/8, Wazirpur Industrial Area, Delhi- 110052. Date of institution of the case : 06.09.2005 Date of reserving the award : 24.08.2007 Date of announcement of award : 07.09.2007 AWARD 1. The workman has filed statement of claim under [SECTION] of the [ACT] on 06.09.2005 stating therein that he has been employed with the management as Machine Man since 01.01.1999 and his last drawn salary was Rs.1800/- per month and workman was working sincerely and diligently to the satisfaction of management and never gave any chance of complaint to the management. It is stated that the management was not providing the facilities i.e. appointment letter, attendance sheet, bonus, PF etc. and the management had provided facility of ESI to the workman. The workman was demanding the facilities of bonus and PF from the management on which management got annoyed and terminated the services of the workman on 25.02.2005 and earned wages of the workman for the month of February 2005 were not paid and no notice or charge-sheet was issued before -2- termination of his service. The workman made complaint to the Labour Authorities and Labour Inspector visited the management on 08.04.2005, but the management refused to take the workman on duty. The workman sent notice of demand to the management on 10.03.2005 through Union, but the management did not send any reply to the same. On 18.03.2005 the workman presented his claim before the Conciliation Officer, but the management did not participate in the conciliation proceedings and the labour commissioner issued a letter no. ID 28/05 L.O.II N.W. 5218 on 27.07.2005 to the workman with his report for further proceeding u/[SECTION] of the [ACT]. It is stated that workman is unemployed since the date of termination of his service. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service. 2. The notice of statement of claim was issued to the management and the management has filed WS to the statement of claim and has contested the same. In the WS it is stated that the management is engaged in cold re- rolling of stainless steel strips as per the Market job work against charges fixed and engages labour force accordingly as per the needs and exigencies thereof. The claimant had taken up at employment at different intervals as per availability and he has not worked for a complete year even during his last tenure of employment w.e.f. 01.04.2004 to 04.01.2005. The claimant has lastly worked upto 04.01.2005, when he expressed his inability to work further and he requested for payment of his upto date dues in full and final and the management considered his request and paid all his dues in full and final. -3- The ex-proprietor of management has closed his establishment on 31.03.2005 and answering respondent has taken over the proprietorship to
the management of M/s. [ENTITY] free from all encumbrances w.e.f. 01.04.2005. It is denied that the workman has been in the employment of the management since 01.01.1999. It it stated that the workman has not completed his tenure of one year or even a year and he left services of his own after collecting all his dues in full and final. It is stated that as the claimant was not in the employment of management from 01.02.2005 to 25.02.2005, hence there is no question of termination of service or of making payment of wages for the said period. It is stated that the alleged report by the Labour Inspector, if any, may off shot of connivance between the parties and is of no consequence to the management. It is stated that the claimant had been in gainful employment at C-9/3, W.P.I.A., Delhi immediately after leaving service with the management. It is stated that the claimant is not entitled to any relief.
3. Workman has filed rejoinder to the WS of management. In the rejoinder the workman has reiterated the contents of statement of claim and has controverted the allegations of management as stated in the WS.
4. From the pleadings of parties following issues were framed on 20.03.2006:
(i) Whether the workman has worked for the management at different intervals and his last tenure of employment was w.e.f. 01.04.2004 to 04.01.2005 as stated in para 1 of PO of W.S., if so its effect? OPM.
(ii)Whether the workman voluntarily left the services of management as stated in para 2 of PO of W.S., if so its effect? OPM.
(iii)Whether the management has been closed on 31.03.2005 as stated in para 3 of PO of W.S., if so its effects? OPM.
(iv)Whether the workman is entitled to relief as claimed.
(v)Relief.
5. To prove his case workman examined himself as WW1.
6. In support of its case management examined Sh. [ENTITY], Sole Proprietor of management as MW1 and Sh. [ENTITY], Sole Proprietor of management w.e.f. 01.04.2005 as MW2.
7. I have heard ARs for both the parties and carefully perused record. My findings on specific issues are as under:
8. Since both these issues involve common discussion of facts and law hence for the sake of brevity both these issues are being taken up together. In the statement of claim workman has stated that he has been employed with the management since 01.01.1999 as Machine Man and his services were terminated by management on 25.02.2005. In the written statement management has stated that the management engages labour force according to its needs and exigencies and the workman had taken up employment with the management at different intervals as per availability of work and he has not completed one year service during his employment with the management and his last term of employment with the management was from 01.04.2004 to 04.01.2005. The management has further stated in the written statement that the workman has worked lastly with the management up to 04.01.2005 when he expressed his inability to work further and requested for payment of his upto date dues in full and final and the management has paid all his dues in full and final. The plea of the AR for management is that it is for the workman to prove that he has worked continuously for 240 days in a year with the management.
9. In [PRECEDENT], the Hon'ble Supreme Court held that 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. 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.
10. In [PRECEDENT]; [PRECEDENT] and [PRECEDENT], the Hon'ble Supreme Court reiterated the principle 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 it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer.
11. In [PRECEDENT] the Hon'ble Supreme Court held that when the workman apart from examining himself in support of his contention has not produced any proof in the form of receipt of salary or wages for 240 days or record of his appointment or engagement for that year to show that he has worked with the employer for 240 days to get the benefit under [SECTION] of the [ACT], in the absence of evidence on record the Labour Court and the High Court have committed an error in law and fact in directing reinstatement of the respondent-workman.
12. Hence as per aforesaid decisions it is for the workman to prove that he has worked continuously for 240 days in a year with the management.
13. To prove his case workman appeared in witness box as WW1 and adduced evidence by way of affidavit Ex. WW1/A. In the cross-examination workman/WW1 stated that he does not have any document to prove that he joined management on 01.01.1999. Workman/WW1 also admitted in the cross-examination that the management is doing the work of re-rolling of stainless steel and accidents keep taking place in the management and on that account management provides ESI and other facilities to its employees. The workman has filed on record the copy of ESI card which was issued to him and the same is Ex. WW1/4. As per ESI card Ex. WW1/4 filed by workman on record his date of appointment on the same is mentioned as 01.12.2001. Workman/WW1 had admitted in the cross-examination that he does not have any document to prove that he had joined management on 01.01.1999. Workman/WW1 further admitted in the cross-examination that he was being paid wages on wages register. Workman/WW1 admitted in cross- examination that wages register for the month of November 2002 Ex. WW1/M1, wages register for the month of April 2004 Ex. WW1/M2 and wages register for the month of January 2005 Ex. WW1/M3 bear his signatures. The plea which has been taken by the management is that the services of workman were engaged by management on different intervals from time to time and lastly he was engaged w.e.f. 01.04.2004 and the workman left the employment of management on 04.01.2005. As per ESI card Ex. WW1/4 filed by workman on record his date of appointment is 01.12.2001 and the management has filed on record return of contributions filed by management with the ESI Corporation for the period from October 2002 to March 2003 which is Ex. MW1/16 and in the said return it has been mentioned that workman Sh. [ENTITY] has left the management on 30.11.2002. In the cross-examination of MW1 no suggestion has been given to the effect that Ex. MW1/16 was not filed by management with the ESI Corporation and it is a fabricated document. Hence as per Ex. MW1/16 the workman was not in the employment of management after 30.11.2002. The workman/WW1 stated in the cross-examination that he does not have any document to show that he has worked with the management from 01.02.2004 to 31.03.2004. The workman has failed to prove that he was in the employment of management after 30.11.2002.
14. In order to prove that the services of workman were engaged afresh w.e.f. 01.04.2004, the management has relied on return of contributions filed by management with the ESI Corporation for the period from April 2004 to September 2004 Ex. MW1/17 and return of contributions filed by management with ESI Corporation for the period from October 2004 to March 2005 Ex. MW1/18. As per return of contributions filed by management with the ESI Corporation Ex. MW1/17, the workman is shown to have paid wages for 151 days for the period from April 2004 to September 2004 and as per Ex. MW1/18 which is return of contributions for the period from October 2004 to March 2005 filed with the ESI Corporation by the management, the workman is shown to have been paid wages for 70 days. It is also to be noted that the workman/WW1 has himself admitted in the cross-examination that wages register for the month of January 2005 Ex. WW1/M3 bears his signature. As per Ex. WW1/M3 the workman has attended the management only on 2 working days in January 2005 and he has been paid in total a wages of Rs.271/- for January 2005. The workman/WW1 had also admitted in the cross-examination that Ex. WW1/M4 which is the receipt dt. 04.01.2005 is also signed by him. As per receipt Ex. WW1/M4 the workman had taken a sum of Rs.2669/- from the management as full and final settlement amount and the same also includes a sum of Rs.272/- on account of wages which have been paid to him for the period he has worked in January 2005. It is to be noted that workman has denied certain documents in the cross- examination which do not bear his signatures and he has categorically admitted in the cross-examination about signing Ex. WW1/M3 which is wages register for the month of January 2005 and receipt Ex. WW1/M4. As per Ex. WW1/M3 and Ex. WW1/M4 the workman was entitled to unpaid wages of Rs.277/- as on 04.01.2005.
15. In [PRECEDENT] was held that:
It is an established principle of law that burden lies on the person who wants the document to be read otherwise than it purports to be. Document Ex. D/6 is unconditional. There is absolutely no mention that as promised or assured by any officer, he tendered his resignation. The burden was on respondent No.1 to who that he has signed the document involuntarily.
16. The workman/WW1 has admitted in the cross-examination that the wages were being paid to him on the wages register and wages register for the month of January 2005 Ex. WW1/M3 and receipt Ex. WW1/M4 bear his signatures. The workman has not pleaded that the management had obtained his signatures on blank papers and no suggestion has been given to MW1 in the cross-examination also to the effect that Ex. WW1/M3 and Ex. WW1/M4 were got signed from workman when they were blank or that the same are fabricated documents. The workman has failed to prove that the documents Ex. WW1/M3 and Ex. WW1/M4 were not executed by him. Ex. WW1/M3 and Ex. WW1/M4 prove that the workman has taken his full and final settlement amount from the management on 04.01.2005.
17. Another plea of the workman is that he alongwith the Labour Inspector had gone to the management on 08.04.2005 but the management refused to take him on duty. The workman has relied on report of the Labour Inspector dt. 03.08.2005 Ex. WW1/8. As per Ex. WW1/8 the workman had gone alongwith Labour Inspector to the management on 08.04.2005 but the management refused to reinstate the workman. However, the workman/WW1 stated in the cross-examination that he had gone to management alongwith Labour Inspector but the management was not available. In the cross- examination of workman/WW1 management has given suggestion to the effect that report of Labour Inspector Ex. WW1/8 is a fabricated document. The workman has not produced the Labour Inspector in the witness box who has prepared the report Ex. WW1/8. Moreover, the report of Labour Inspector is also of no help to the workman as the same does not prove the date of appointment of workman with the management or that the workman has worked continuously for 240 days in a year with the management or that the services of workman were terminated by management on 25.02.2005.
18. In aforesaid discussions it has been held that Ex. WW1/M3 and Ex. WW1/M4 prove that the workman has taken his full and final settlement amount from the management on 04.01.2005. As the workman has taken his full and final settlement amount from the management hence there is no question of termination of services of workman by the management on 25.02.2005 as on that day he was not in the employment of management. Moreover, the workman/WW1 stated in the cross-examination that he does have any document to prove that he has worked with the management after 04.01.2005. The workman has failed to prove that he has worked with the management from 04.01.2005 till 25.02.2005 when his services were allegedly terminated. As per aforesaid discussions the workman has also failed to prove that he was in continuous employment of management prior to 01.04.2004. The management has succeeded in proving that the workman has worked with the management from 01.04.2004 to 04.01.2005 on which date he has taken full and final settlement from the management. Both these issues stand answered accordingly.
19. In para 3 of PO of WS management has stated that ex-proprietor of management has closed his establishment on 31.03.2005 and Sh. [ENTITY] (answering respondent) has taken over the proprietorship of management free from all encumbrances w.e.f. 01.04.2005. The management examined Sh. [ENTITY] as MW1 who adduced evidence by way of affidavit Ex. MW1/A. In affidavit Ex. MW1/A Sh. [ENTITY] has stated that he had been managing the activities of management till 31.03.2005 as a sole proprietor and Sh. [ENTITY] is looking after the affairs of management w.e.f. 01.04.2005 as sole proprietor. The management has filed on record Ex. MW1/1 which is the agreement executed between Sh. [ENTITY] and Sh. [ENTITY] whereby the proprietorship of management has been taken over by Sh. [ENTITY] w.e.f. 01.04.2005. MW1 stated in cross-examination that proprietorship of management changed on 31.03.2005. MW2 Sh. [ENTITY] also stated in cross- examination that he has taken over the proprietorship of management from 01.04.2005. In the cross-examination of MW1 and MW2 no suggestion has been given to the effect that the proprietorship of management has not changed from Sh. [ENTITY] to Sh. [ENTITY] or that the agreement Ex. MW1/1 is a sham document or that MW1 is still the proprietor of management and still running the affairs of the management. The management has proved that Sh. [ENTITY]/MW2 has taken over the proprietorship of management w.e.f. 01.04.2005. This issue stands answered accordingly.
20. Since both these issues involve common discussion of facts and law hence for the sake of brevity both these issues are being taken up together. In findings on issue no.1 & 2 above it has been held that the workman has left the services of management on 04.01.2005 after taking full and final settlement amount from the management. As the workman himself left the services of management after taking full and final settlement amount hence there is no question of termination of services of workman illegally and/or unjustifiably by the management. Consequently, the workman is not entitled to any relief. Copies of this award be sent to appropriate Govt. for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 07.09.2007 ([ENTITY]) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI 07.09.2007 Pr. Workman in person.
None for management.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room.
POLC/07.09.2007