IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA COURTS : SHAHDARA : DELHI I.D. NO.320/2006 Date of Institution: 1.9.2005 Award reserved on: 21.11.2007 Date of Award : 4.1.2008 BETWEEN SH. VIKAS KUMAR S/O SH. NARESH C/O DELHI PRADESH GENERAL MAZDOOR KALYAN MOURCHA (REGD.) L-1417, MANGOLPURI, DELHI-83. R/O H-15, MAHAVIR VIHAR, KANJHAWALA, DELHI. AND MANAGEMENT OF : SH. P.K. BAJAJ, PROP. OF M/S A.S. ENTERPRISES (INDIA) A-166, DSIDC INDUSTRIAL COMPLEX, NARELA, DELHI-40. AWARD 1.
A claim was filed under [SECTION] of the [ACT] (hereinafter called the Act) pleading therein the following facts :
He was in the employment of the management as machine man for about a year and his last drawn wages were Rs.5000/- per month. He never gave any complaint to the management. He was not given legal facilities such as earned leave, bonus, Employees State Insurance contributions, etc. when he demanded the same from the management orally management got annoyed. Management compelled him to work on a machine which was not in order. Consequently he met with an accident on 11.10.04. At about 11.30 a.m.
2. He lodged an FIR against the management bearing number 424/04 PS Narela. On 15.6.05 he went to the management. He gave his fitness certificate to [ENTITY] who refused to take the workman on duty. Workman reported for duty for 6-7 days to the management in hope that he would be given duty but management did not take him on duty and also withheld his wages w.e.f. 1.10.04 to 11.10.04.
3. Termination of his services is in violation of [SECTION] of the Act as he was neither served any notice nor paid anything in lieu of notice. He served a demand notice on the management on 27.11.2004 and 18.8.05 claiming reinstatement and full back wages. Management did not reinstate him. He is out of employment since the date of incident. His four fingers have already been amputated and he is without any work. He has prayed for his reinstatement with continuity of service and full back wages.
4. Management contested his claim vide its written statement. It is pleaded that he was appointed on 1.9.04 as machine man. It is stated that he met with an accident on 10.10.04 and thereafter he was on medical leave. It is alleged that he never reported for duty thereafter alongwith fitness certificate. It is further pleaded that he worked for only a few days and did not complete 240 days of continuous service in a year. Therefore his claim not maintainable under the Act. It is stated that since he himself left duty he has no cause of action. It is denied that he was not given statutory benefits. It is denied that he was compelled to work on a machine which was not in order. It is stated that there was no defect in the machine. It is denied that he ever visited the management for duty or submitted his fitness certificate. It is denied that his services were ever terminated by the management.
5. Following issues were framed :
1. Whether the claimant was only a casual/temporary employee? OPM
2. Whether the claimant completed 240 days of service with the management? OPW
3. As per terms of reference.
4. Whether he remained absent from duty without any information and thereby abandoned his service?
6. Both the issues are interconnected and are therefore taken up together for adjudication. It is stated in para 1 of statement of claim that workman worked with the management for about a year. Management has denied the same and has alleged that he joined as machine man on 1.9.04. It is stated that he met with an accident on 10.10.04 and thereafter did not report for duty. It is stated that he worked only for few days and did not complete 240 days of continuous service.
7. Workman has pleaded that termination of his employment is violative of [SECTION] of the Act. To invoke [SECTION] of the Act claimant has to prove that he rendered atleast 240 days of continuous service as defined under [SECTION] of the Act. [SECTION] reads as follows :
[SECTION] The impression continuous service is used in the proviso as explained [SECTION] which is explained below :
Definition of continuous service :
1. A workman shall be said to be in continuous service for a period if he is, for that period , in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or any accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
2. where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer -
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculations is to be made, has actually worked under the employer for not less than -
(i)ninety-five days, in the case of workman employed below ground in a mine; and
(ii)one hundred and twenty days, in any other case.
8. Onus is on the claimant to prove that he rendered 240 days of continuous service with the management immediately preceding the date of alleged termination of his employment as held in the following judgments.
[PRECEDENT].
[PRECEDENT]. [PRECEDENT].
[PRECEDENT].
Ravi N. Tikku v. Deputy Commissioner (S.W.) & Ors. 2006 LLR
9. In his cross-examination workman himself stated that he joined the management in August 04. His statement of claim reveals that he did not work with the management after october 2004. The issue whether or not he reported for duty on his being medically fit will be dealt with while adjudicating upon issue no.3. It is at least clear that he worked with the management for a few days and he did not complete 240 days of continuous service immediately preceding the date of alleged termination of his services. Issue no.1 and 2 are accordingly decided in favour of the management and against the claimant.
10. Issue no.3 is wrongly framed as the case was not received by way of reference from the appropriate government. Claimant directly filed the same in the court U/[SECTION].
ISSUE NO.4
11. Claimant has alleged in para 7 page 3 of his statement of claim that on 15.6.05 he went to the factory premises of the management and handed over his medical and fitness certificate to Mr. [ENTITY]. It is alleged that he was not allowed to join duty although he waited for 6-7 days.
12. Management has denied that workman ever reported to it for duty on being declared fit. Workman has not placed on record copy of his fitness certificate. In his cross-examination he stated that after he was discharged from the hospital he left for his native place on 2.1.2005 and came back in March 05. He allegedly reported for duty to the management in June 05 as per his statement of claim.
13. He is silent as to when he was declared medically fit to join duty. In his cross-examination he stated that did not remember the date when he was issued a fitness certificate by the hospital. He is again silent as to which hospital issued the said certificate.
14. Workman alleged that Mr. [ENTITY] proprietor of the management refused to reinstate him when he reported for duty. Mr. [ENTITY] appeared in the witness box as MW-1 and deposed that workman did not report for duty to him with any fitness certificate.
15. Workman has not placed on record copy of any fitness certificate. It is not clear as to when such certificate was issued. It is further not clear as to when he reported for duty to the management on being declared fit. In his statement of claim he says that he reported for duty on 15.6.05. In his cross-examination he stated that after being discharged from the hospital he left for his native place on 2.1.05 and came back in March 05. Why he left for his native place after discharge from the hospital is not clear. Why he came back in March 2005 is further not made clear. Why he reported for duty on 15.6.05 to the management is also not clear. Although he says in his cross- examination that he informed the management that he was leaving for his native place there is nothing on record to prove the same. In his cross-examination he also stated that he did not remember the date of his visit to the management to join duty.
16. The claimant has failed to prove unlawful termination of his services. He has failed to prove that he reported to the management for duty on being declared medically fit and the management refused to take him on duty. In the absence of any evidence to prove unlawful termination of his services it has to be inferred that he never reported for duty to the management on being declared fit.
17. This issue is accordingly decided in favour of the management and against the claimant.
RELIEF.
18. Accordingly claimant is not entitled to the relief prayed for. File be consigned to record room.
Announced in open court on 4.1.2008 PRESIDING OFFICER LABOUR COURT NO. XIII KARKARDOOMA COURTS DELHI