IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI . ID NO. 670/06 BETWEEN The Workman Sh. [ENTITY] S/o Sh. [ENTITY], R/o E-3/323, Sultanpuri, Delhi. AND The Management of M/s. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chowk, Delhi:-110006. Date of institution of the case : 26.07.2003 Date of reserving the award : 09.08.2007 Date of announcement of award : 14.08.2007 AWARD 1. The [ENTITY] through its Secretary (Labour) vide reference no. F.24(56)/03/Lab.6043-47 dt. 24.06.2003 referred the dispute for adjudication between the management of M/s. Municipal Corporation of Delhi and its workman Sh. [ENTITY] S/o Sh. [ENTITY] in the following terms of reference:- "Whether the services of Sh. [ENTITY] S/o Sh. [ENTITY] R/o E-3/323, Sultanpuri, Delhi have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefit in terms of existing laws/Government notification and to what other relief is he entitled and what directions are necessary in this respect?" 2. The workman has filed statement of claim stating therein that he has been working in Division No.25 of the management as [ENTITY] on muster roll on contd 2 adhoc basis and he worked for 1 years during the period from the year 1989 to 1990. The workman was working sincerely and diligently to the satisfaction of the management and never gave any chance of complaint to the management. In the year 1990 the officials of the management told the workman that concerned muster roll was closed by the MCD and when it will be restarted, the workman will be called for continuation of his work as [ENTITY]. The workman continued waiting for call and continued approaching the officials of the management with the request to take him on duty but he was not called for the duty. The workman came to know that his colleagues who were working with him earlier had already been appointed on the post of [ENTITY] by the management. It is stated that 83 posts are available with the management for regular employment for various jobs of Masons/[ENTITY]s etc. When the workman came to know that his colleagues who were junior to him have already been issued the appointment letters he also moved an application to the officials of the management requesting for recruitment in the office, but he was not appointed. On 16.04.1999 the workman sent an application for regular employment to the MCD/management but the workman was not appointed. On 02.06.1999 the workman visited the office of the Commissioner, MCD and also Executive Engineer of the Works Department (West Zone) and submitted an application for his regular appointment but to no avail. On 19.01.2001 and 31.01.2001 also the claimant approached the concerned officers of the management for job but the workman was not contd 3 appointed. It is stated that the management has illegally terminated the services of the workman. It is prayed that an award be passed thereby directing the management to take the workman on duty on permanent basis as IV Class employee in the office of the MCD and full compensation be awarded for the period during which the workman remained unemployed. 3. The notice of statement of claim was issued to the management and the management has filed WS and has contested the same. In the WS management has stated that as per the records maintained by the management the claimant has not worked in Division No.25 during the period 1989-1990, as alleged. 4. The workman has filed rejoinder to the written statement of management. In the rejoinder workman has reiterated the contents of statement of claim and controverted the allegations of management as stated in the WS. In the rejoinder the workman has stated that on account of inadvertence the workman has stated in the statement of claim that he had been working in the Division No. 25, but the workman was working in Division No. 15 as [ENTITY] on muster roll on adhoc basis and he worked there for 1 years during the period since 1989 to 1990. 5. From the pleadings of parties following issues were framed by my Ld. Predecessor on 09.05.2005: 1. As per terms of reference. Contd 4 6. To prove his case workman examined himself as WW1 and WE was closed on 10.10.2006. 7. In support of its case management examined Sh. [ENTITY], Executive Engineering as MW1 and ME was closed on 06.08.2007. 8. I have heard Authorised Representatives for both the parties and carefully perused record. My findings on specific issues are as under:- ISSUE NO. 1 9. In the statement of claim the workman has stated that he has been working in Division No. 25 of management as [ENTITY] on muster roll on adhoc basis and he worked there for about 1 years during the period since 1989 to 1990. In the W.S. the management has taken the plea that the workman has not worked in Division no. 25 during the period from 1989 to 1990. The contention of AR for the management is that it is for the workman to prove that there existed relationship of employer and employee between the parties and that the workman has worked continuously for 240 days in a year with the management. 10. 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 contd 5 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. 11. 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. 12. 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.
Contd
6 13 Hence, as per aforesaid decisions it is for workman to prove that there existed relationship of employer and employee between the parties and he has worked continuously for 240 days in a year with the management.
14. The workman appeared in the witness box as WW1 and adduced evidence by way of affidavit Ex. WW1/A. In affidavit Ex. WW1/A the workman has stated that inadvertently in para 1 of the statement of claim he has mentioned that he has worked in Division no. 25 of MCD and he has worked in Division no. 15 with the management as [ENTITY] on muster roll on adhoc basis for about 1 years during the period since 1989 to 1990. The workman has relied on copy of the letter addressed to the management Ex. WW1/1 in which he has stated that he has worked for one year on muster roll in division no. 25 of the management. However, the workman has not placed any document on record to prove that letter Ex. WW1/1 was sent to the management. The workman has also placed on record copy of the letter addressed to the management Ex. WW1/2 in which he has stated that he has worked for 1 years on muster roll basis with the management. The workman has also filed on record one document Ex. WW1/M1 in order to prove that he has worked with the management, but in the cross-examination WW1/workman admitted that in Ex. WW1/M1 it is nowhere stated that it is issued by MCD. In the statement of claim the workman has stated that he has worked in Division no. 25 of MCD, but in his affidavit Ex. WW1/A the workman has stated that he has worked in Division no. 15 of MCD, and the workman has relied on one letter Ex. WW1/1 which is addressed to the management and in the said letter again the workman has stated that he has worked in Division no. 25 of MCD.
contd
15. In the present case the workman apart from examining himself in support of his contention has not produced any evidence in the form of receipt of salary or wages for 240 days or record of his appointment or engagement to show that he had worked with the employer for the period as alleged.
16. The workman has failed to prove that there existed relationship of employer and employee between the parties. As the workman has failed to prove that there was any relationship of employer and employee between the parties, hence there is no question of termination of services of workman illegally and/or unjustifiably by the management. Consequently, workman is not entitled to any relief. Reference stands answered accordingly. Copies of 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 14.8.2007.
([ENTITY]) PRESIDING OFFICER, LABOUR COURT XVII KARKARDOOMA COURTS, DELHI.
14.08.2007 Present: None.
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/14.08.2007