IN THE COURT OF DR. [ENTITY], PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI ID NO. 60/06 (old) 216/08 (new) Unique Case I.D. No. 02402C0120572006 BETWEEN THE WORKMAN Sh. Dharmvir Singh S/o Shri Sahi Ram, C/o P.N. Dwivedi, 10, NDPL Aptt., H3 Block, Vikaspuri, New Delhi 18. AND THE MANAGEMENT OF M/s. New Era Public School, Mayapuri, New Delhi 64. Date of Institution : 22.02.2006 Date on which award reserved : 25.02.2011 Date of passing of award : 05.03.2011 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 facts as mentioned in the statement of claim of workman are to the effect that he had been working regularly with the management w.e.f. 10.05.2002 as 'Office staff' on a consolidated salary @ RS. 8000/ per month; that he worked honestly and sincerely with the management during the course of his service; that management did not pay him increment as usual and also did not pay him grade pay and scales as provided to other junior staff; that management also did not provide him legal facilities like overtime, PF and medical benefits; that when he demanded such facilities, the management became annoyed with him; that management made a service contract w.e.f. 01.05.2003 which expired on 03.04.2004 and this service contract was illegal and unjustified; that he fell sick on 08.12.2005 and sent information to the management in this regard; that when he again went to resume his duties with the management on 16.05.2005 after recovering from his illness, he was not allowed by the management to join his duties; that ultimately, his services were terminated by the management illegally and without any jusitified reasons w.e.f. 16.12.2005. Lastly, a prayer was made for his reinstatement with back wages and other consequential benefits as per law.
3. The averments of statement of claim have been strongly denied in the written statement (in short WS) filed on behalf of the management.
4. It has been mentioned in the WS, interalia, that the claimant has not come before this court with clean hands and has suppressed certain material facts from this court; that he was appointed purely on contractual basis w.e.f. 10.05.2002 and he was not a regular employee of the management at any point of time; that his contractual employment continued on yearly basis till 30.04.2004; that there was a clause in his contract of service to the effect that either party was at liberty to terminate the contract by giving one month's notice or salary in lieu of such notice; that the behaviour and conduct of the claimant was not satisfactory due to which the management terminated his services on 14.12.2005 by offering him one month's consolidated salary in lieu of one month's notice; that nothing was due to the claimant against the management; that the claimant was not justified in filing the present claim petition against the management. Lastly, a prayer was made to dismiss his statement of claim.
5. In the rejoinder filed by the workman, the averments of statement of claim were reiterated and those of WS were denied.
6. On the basis of the pleadings of the parties, following issues were framed on 19.07.2006:
1. Whether the claimant was illegally or unjustifiably terminated on 16.02.2005? OPW
2. Whether the claimant was in contractual employment by the management up to 14.12.2005 as alleged in the written statement? OPW
3. Relief.
7. From the side of the workman, he himself examined as WW1 and also filed his affidavit Ex. WW1/A on record and then evidence of the workman was closed.
8. From the side of the management, MW1 Ms. [ENTITY] was examined and then evidence of the management was also closed.
9. Part oral final arguments were heard in this case from both sides on 13.01.2010 which were almost the repetitions of averments of pleadings of both sides on record. Thereafter, this matter had been fixed several times for further final arguments/fresh final arguments but the parties and more particularly the workman side did not take any interest to submit such fresh/further final arguments in this matter despite sufficient time and opportunities given to both the sides for this purpose from time to time.
10. I perused the entire judicial file minutely and my issuewise decision is as under: ISSUE NO. 1:
11. In my considered opinion, the primary burden of proof of this issue was upon the workman. In coming to this conclusion, I also find support from an important judgment of Hon'ble Delhi High Court given in the case of UCO Bank vs. Presiding Officer & Another 1999 V AD (Delhi)
514. 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 this aspect and the Hon'ble 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 this 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.
12. On this point, 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 mainly to the effect that [SECTION] of [ACT] postulates that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 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 that person. Reference was also made by the Hon'ble High Court to the provisions of [SECTION], [SECTION] and [SECTION] respectively of the [ACT] pertaining to burden of proof in such like cases.
13. Now turning to the evidence of workman himself on record pertaining to this issue, he admitted in his crossexamination, interalia, that no appointment letter was issued to him; that in the second year of his employment, he executed a service contract with the management school; that the document Ex. WW1/5 bears his signatures as a second party; that it was correct that as per the terms of contract, his services were liable to be terminated after one month's notice; that the demand notice was sent by his Advocate but he could not say whether he received or not the reply to the same from the management. He denied the suggestion that the termination of his services was as per terms of the contract between the parties and as per law but he has not added anything further nor led any cogent evidence on record in rebuttal of this denial.
14. I have seen Ex. WW1/5 on record which is a service contract entered into between the claimant herein and the management. As per this service contract, the claimant herein was appointed as a Liaison Officer on consolidated salary of Rs. 8000/ per month. This contract of service was allegedly entered into on 01.05.2003 and it had to remain in operation till 30.04.2004. As per para 2 of this service contract, it had to stand terminated automatically on the expiry of the said period on 30.04.2004 without any notice or information from either party. In para 3 of this service contract, it was provided that a fresh contract of service for a further term may be entered into between the parties on the same terms and conditions as may be mutually decided between both the parties. In para 4 of this service contract, it was mentioned that if either party wishes to terminate the contract during the period of contract, such party was at liberty to do so by giving one month's notice in writing or by paying one month's salary in lieu of such notice.
15. In this regard, I also refer to the testimony of MW1 Smt. [ENTITY]. She deposed in her affidavit filed on record before this court on 07.04.2008 mainly to the effect that she was Administrative Officer with the management and that she was well conversant with the facts of this case; that the claimant herein had voluntarily entered into a contract of service with the management and that he had been appointed as a Liaison Officer with the management w.e.f. 10.05.2002; that in accordance with the terms stipulated in the terms of contract of service, if either party desired to terminate the contract before expiry thereof, the same could be done by giving one month's notice or one month's salary in lieu of such notice; that in exercise of the powers conferred under clause 4 of service contract, the management terminated the services of claimant herein vide letter dated 14.12.2005 after reviewing the performance of the claimant including his general behaviour and conduct; that the management also offered him one month's consolidated salary in lieu of one month's notice; that claimant being a contractual employee was legally and validly terminated by the management from his service in terms of the service contract governing his employment and that he was not entitled to claim any relief from the management after termination of his services by the management. MW1 has also deposed on oath before this court in support of the above mentioned affidavit in particular and in support of the contentions of the management in this case in general. In my considered opinion, there is no substantial rebuttal of the testimony of MW1 to the above effect from the side of the workman by way of any cogent evidence, either oral or documentary.
16. In view of the above mentioned discussion coupled with entire material on record, I am of the considered opinion that the services of the claimant herein were not terminated illegally and/or unjustifiably by the management w.e.f. 16.02.2005, as alleged. Hence, the workman has miserably failed to prove this issue in his favour by way of cogent evidence, either oral or documentary. Accordingly, this issue is decided against the workman and in favour of the management. ISSUE NO. 2:
17. As already mentioned pertaining to issue no. 1 above, the management side has been successful to prove on record by way of cogent evidence, both oral as well documentary, that the claimant herein was in contractual employment of the management up to 14.12.2005, as alleged in the WS. Hence, the management has been successful to prove this issue in its favour by way of cogent evidence. Accordingly, this issue is also 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 of the considered opinion that the claimant herein is not entitled to claim any relief in this case against the management. An award is passed to the above effect.
19. 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]) on 05.03.2011 Presiding Officer Labour Court No. IX Karkardooma Courts, Delhi