-1- IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI . ID NO. [SECTION]09/06 BETWEEN The Workman Sh. [ENTITY] S/o Sh. [ENTITY] C/o Jai Jawan Jai Kishan Export Karamchari Union 362, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi. AND The Management of M/s India Offset Printers X-36, Okhla Indl. Area, Phase-II, New Delhi- 1[SECTION]020. DATE OF INSTITUTION OF THE CASE : 07.12.2002 DATE OF RESERVING THE AWARD : 15.[SECTION].2007 DATE OF ANNOUNCEMENT OF AWARD : 16.[SECTION].2007 AWARD 1. The National Capital Territory of Delhi through its Secretary (Labour) vide reference no. F.24(1613)/2002-Lab./18528-32 dt. 08.[SECTION].2002 referred the dispute for adjudication between the management of M/s India Offset Printers and its workman Sh. [ENTITY] in the following terms of reference:- "Whether the services of Sh. [ENTITY] S/o Sh. [ENTITY] have been terminated illegally and, or unjustifiably by the management, and if so, to what sum of money as monetary relief alongwith consequential benefit in terms of existing laws/Government notifications and to what other relief is he entitled and what directions are necessary in this respect?" 2. Workman has filed statement of claim stating therein that he has been employed with the management as Machine Operator for the last 4 years. The workman has worked sincerely and diligently to the satisfaction of -2- management and never gave any chance of complaint to the management. Management was not providing the statutory facilities i.e. appointment letter, pay slip, leave card, ESI, PF etc. and the workman was orally demanding the same from the management on which management started remaining annoyed with the workman and terminated the services of workman on 05.11.2001 without issuing any notice or charge sheet and earned wages of workman for the month of September, October and November 2001 were also not paid. The workman sent notice of demand to the management through union on 23.11.2001 but the management did not send any reply to the same and workman was not reinstated and his dues were not paid. Workman presented claim through union before the Labour Authorities on 18.12.2001 but settlement was not arrived. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service. 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 there is no relationship of employer and employee between the parties. It is stated that the claimant has never worked with the management and he is a stranger who has filed the false case against the management. It is denied that the workman has been in the employment of manage for last 4 years as Machine Operator. It is denied that the claimant was demanding legal facilities on which management started remaining annoyed with the workman and terminated the services of -3- workman on 23.11.2001. It is stated that claimant is not entitled to any relief. 4. From the pleadings of parties following issues were framed by my Ld. Predecessor on 20.01.2005: 1. Whether there existed relationship of employer and employee between the parties? If so, its effect? OPW. 2. As per terms of reference. 5. To prove his case workman examined himself as WW1. 6. In support of its case management examined Sh. [ENTITY], Manager Production as MW1. 7. I have heard Authorised Representative for parties and carefully perused record. My findings on specific issues are as under: ISSUE NO. 1 8. In the statement of claim workman has stated that he has been employed with the workman for the last 4 years as Machine Operator and his services were terminated illegally by management on 23.11.2001 and earned wages of workman for the month of September, October and November 2001 were also not paid. In the WS management has taken the objection that no relationship of employer and employee existed between the parties and the claimant was never employed by the management. 9. The plea of AR for 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. [SECTION]. In [PRECEDENT] Hon'ble Supreme Court held that: 36. In a given case it may not be possible to infer that a relationship of employer and employee has come into being only because some persons had been more or less continuously working in a particular premises inasmuch as even in relation thereto the actual nature of work done by them coupled with other circumstance would have a role to play. 38. The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the court is required to consider several factors which would have a bearing on the result: (a) who is appointing authority; (b) who is the pay master; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject. 11. 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 -5- 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. 12. In [PRECEDENT]; Municipal Corporation, Faridabad v. Siri Niwas, 2004 LLR [SECTION]22 (SC): 2004 (4) LLN 785 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. 13. 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.
14. Hence, as per aforesaid decisions it is for the workman to prove that he has been employed with the management for the period as alleged and his services were illegally terminated by the management.
15. In order to prove his case workman examined himself as WW1 and adduced evidence by way of affidavit Ex. WW1/A. The workman has relied on copy of the demand notice dt. 23.11.2001 Ex. WW1/1, postal receipt Ex. WW1/2, UPC receipt Ex. WW1/3, copy of complaint dt. 07.12.2001 made by Jai Jawan Jai Kishan Export Karamchari Union (Regd.) Ex. WW1 4, copy of statement of claim filed before Conciliation Officer Ex. WW1/5, copy of attendance card Ex. WW1/6, copy of inland letter ex. WW1/7. Workman/WW1 stated in cross-examination that he has brought the original of attendance card Ex. WW1/6 and original of the same is Ex. WW1/6A. Workman/WW1 admitted in the cross-examination that copy of attendance card Ex. WW1/6 and its original Ex. WW1/6A do not bear signature or stamp on behalf management. In the cross-examination workman/WW1 further stated that during his employment with the management he had never made any complaint to Labour Department or to any Authority against the management and he has also not made any written complaint to the management regarding not providing the legal facilities. Workman/WW1 denied suggestion of AR for management in the cross-examination to the effect that he has not made any complaint to any Authority against the management or to the management as he has never worked for the management.
16. In the statement of claim and in his affidavit Ex.WW1/A the workman has not stated his date of appointment with the management and he has only stated that he has been employed with the management for last 4 years. However, in the cross-examination of MW1 AR for workman gave a suggestion to the effect that workman has been employed with the management for last 5 years. MW1 stated in cross-examination conducted on 19.02.2007 that the management is maintaining attendance register and wages register. On 19.02.2002 further cross-examination of MW1 was deferred as request was made by AR for workman for directing the witness to produce the attendance register and wages register from September 2001 to November 2001. MW1 Sh. [ENTITY] appeared for further cross- examination on 06.09.2007 and he stated that he has brought the register of Employment and Remuneration from April 2001 to March 2002. MW1 stated in cross-examination that the name of the workman is not mentioned in the register Ex. MW1/W1 brought by him in the month of November 2001. MW1 further stated in cross-examination that the management is providing ESI and PF facilities to its employees and the management is also maintaining cash book and ledger and the details of payments made by cheques are also entered in the ledger. MW1 denied suggestion of AR for workman to the effect that management is not maintaining the records of its employees and only record in respect of 2/3 employees is maintained by the management. The contention of AR for workman is that the management has not maintained records of its employees and records produced by the management is a fabricated document.
17. In [PRECEDENT] held that:
As per the established principle of law, the petitioners in order to succeed will have to substantiate their claim. Non-production of evidence in opposition will not support the claim of the petitioners even by legal fiction. The Assistant Labour Commissioner, in our opinion, has failed to appreciate this proposition of law while recommending the claim of petitioner.
18. In [PRECEDENT] our own Hon'ble High Court observed as under:
37. "At this stage, it becomes necessary also to know that extent to which the workman is required to prove his case in the light of the absence of non-traverse by the management and lack of any defence before the industrial adjudicator. Such issue can be examined in the light of the provisions of [SECTION] & [SECTION] of the [ACT] and the principles of law laid down thereunder.
Even if the respondent has not appeared before the court, the court has to exercise discretion as to the manner in which further proceedings should take place. The court would examine the allegations made by the claimant and the material placed on record, and if fully satisfied, would proceed to answer the reference in favour of the workman. However, the basic principle being that where a claimant comes to court, he must prove his case, cannot be whittled down even in a case where no respondent appears. The court having called upon claimant to lead its evidence would be required to look at the case set up by the claimant which would include the pleadings and evidence in support and evaluate the same and be satisfied that the case set up by the claimant has been adequately established.
It is settled law that the party seeking a claim and adjudication has to prove its case before the court. Merely because, the respondent or the defendant has chosen to remain absent from the proceedings before the court or the tribunal, it does not follow that the consequence has to be a judgment or an order in favour of the claimant without any further proof of its contentions. A claim could be required to be proved by cogent and reliable evidence.
38. In this behalf in (2005) 5SCC [SECTION]0 entitled Manager, Reserve Bank of Bangalore vs. S. Mani & Others, the Apex Court observed thus:-
"Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore, not correct to contend that the plea raised by the respondents herein that they had worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. In any event, the contention of the respondents having been denied and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the union dated 30-5-1988 and 11-4-1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved, particularly in view of the fact that the contents thereof were not proved by any witness . Only by reasons of non-response to such letters, the contents thereof would not stand admitted. The [ACT] does not say so."
19. In the present case the workman has only examined himself in support of his contention and the workman has relied on copy of the notice dt. 23.11.2001 Ex. WW1/1, copy of the complaint to Assistant Labour Commissioner dt. 07.12.2001 Ex. WW1/4 and copy of claim filed before the Conciliation Officer Ex. WW1/5. Copy of the notice dt. 23.11.2001 Ex. WW1/1, copy of the complaint to Assistant Labour Commissioner dt. 07.12.2001 Ex. WW1/4 and copy of claim filed before the Conciliation Officer Ex. WW1/5 do not prove the date of appointment of workman, the post of the workman, wages of the workman and that the workman has worked continuously for 240 days in a year with the management. Workman/WW1 himself admitted in the cross-examination that the attendance card Ex. WW1/6 and Ex. WW1/6A do not bear signature or stamp of any official of the management. The workman has failed to prove that attendance card Ex. WW1/6 and Ex. WW1/6A have been issued by the management. MW1 has produced Employment and Remuneration register Ex. MW1/W1 and he stated in the cross-examination that it does not bear the name of the workman. MW1 also stated in cross-examination that the management is providing ESI and PF facilities to its employees. Although MW1 stated in cross-examination that management is providing ESI and PF facilities to its employees but the workman made no request to the court thereby directing the management to produce the ESI and PF records of its employees in order to prove that the workman was employee of the management and his name finds mention in the ESI and PF record of the management. The workman has not proved that if other workers of the management were getting ESI and PF facilities and the same were being denied to him then he had made any complaint to any authority against the management thereby demanding ESI and PF facilities from the management. The workman 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. The workman has failed to prove that there existed relationship of employer and employee between the parties. This issue stands answered accordingly.
20. In findings on issue no.1 above it has been held that the workman has failed to prove that there existed relationship of employer and employee between the parties. As there was no relationship of employer and employee between the parties hence there was no question of termination of services of workman illegally and/or unjustifiably by the management. Consequently the workman is not entitled to any relief. Reference stands answered accordingly. Copies of the 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 16.[SECTION].2007. ([ENTITY]) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI