BEFORE THE COURT OF SH [ENTITY] PO : LABOUR COURT : KKD : DELHI ID 824/06/05 Unique ID No.02402C0098492005 IN THE MATTER OF : M/s [ENTITY] . [ENTITY] Versus Its Workmen As per Annexure 'A' C/o Bhartiya Karamchari General Mazdoor Union, C9, Lal Bagh,Opp. A67/2, G T Karnal Road, Azadpur, Delhi33 Workmen DATE OF FILING : 10.03.2005 ARGUMENTS CONCLUDED ON : 24.07.2014 AWARD PASSED ON : 25.07.2014 A W A R D 1. This is a reference sent by the Government of NCT of Delhi vide order number F.24( 2483)/04/Lab. 303842 dated 10.02.2005, with the following terms : ID 824/06/05 1 of 30 "Whether the services of workmen As per Annexure 'A' have been terminated by the management illegally and /or unjustifiably and if so to what sum of money as monetary relief alongwith consequential benefits in terms of existing law/Govt Notifications and to what other relief is he entitled and what directions are necessary in this respect?" Annexure A Sl no Name of the workman Father's name 1 [ENTITY] Sh. [ENTITY] 2 [ENTITY] Sh. [ENTITY] 3 [ENTITY]. [ENTITY] 4 [ENTITY] Sh. [ENTITY] 5 [ENTITY] Sh. [ENTITY] 6 [ENTITY] 7 [ENTITY] 8 [ENTITY] Sh. [ENTITY] 9 [ENTITY]. [ENTITY] 10 [ENTITY]. [ENTITY] 11 [ENTITY] Sh. [ENTITY] 12 [ENTITY] 13 [ENTITY] 14 [ENTITY] Sh. Keshav 15 [ENTITY] Sh. [ENTITY] 16 [ENTITY]. [ENTITY] 17 [ENTITY] Sh. Rajinder ID 824/06/05 2 of 30 Sl no Name of the workman Father's name 18 [ENTITY] Sh. [ENTITY] 19 [ENTITY] W/o Sh. Parmeshwar 20 [ENTITY] W/o Sh. [ENTITY] 2. As noted above, the reference was sent in respect of twenty claimants. However, one joint claim has been filed by following thirteen claimants only, namely: i) [ENTITY], ii) [ENTITY], iii) [ENTITY], iv) [ENTITY], v) [ENTITY], vi) [ENTITY], vii) [ENTITY], viii) [ENTITY], ix) [ENTITY], x) [ENTITY], xi) [ENTITY], xii) [ENTITY] and xiii) [ENTITY]. 3. It is clear that the claimants i) [ENTITY], ii) [ENTITY], iii) [ENTITY], iv) [ENTITY], v) [ENTITY], vi) [ENTITY] and vii) [ENTITY] have not filed any claim. Hence, a "no claim award" is liable to be passed in respect of these seven claimants. 4. In the joint claim, it is submitted by the thirteen claimants mentioned in para2 of this Award (hereinafter "the contesting claimants") that they were working with the management for various periods ranging from 16 months to 10 years. The management was not ID 824/06/05 3 of 30 providing any facilities as per labour laws to the claimants such as appointment letter, minimum wages, attendance card, earned leaves, encashment of leaves, pay slip, bonus, ESI, etc despite various oral demands of the claimants. On account of demands of claimants for these facilities, the management terminated their services on 19.10.03 without any prior intimation or notice or payment. The claimants sent a demand notice dated 05.12.03 by registered post and UPC to the management but the management did not reinstate them. The claimant also lodged a complaint against the management in respect of their illegal termination with the Conciliation Officer, [ENTITY] Vihar but despite efforts of the Labour Inspector, the management has not reinstated them. The claimants are unemployed since the date of their termination despite their best efforts. The claimants have sought reinstatement with full back wages and all legal benefits. 5. The management has contested the claim by filing a written statement. It is submitted by the management that the claimants had worked with the management casually some time in the year 2003. Most of them worked for less than 100 days and none of them worked for more than 6 months. Hence, none of them worked with the ID 824/06/05 4 of 30 management for the period of 240 days as required under the [ACT] ( hereinafter " the Act"). Further, all the claimants withdrew their services after receiving all their dues from the management. The other contents of the claim, except matters of record, are denied by the management who has sought dismissal of the claim with costs. 6. In the rejoinder, the pleas of the management have been controverted and those of the claim have been reiterated. It may be noted here that the rejoinder has been signed only by the Authorised Representative for claimants ( ARW) and by none of the claimants. 7. From the pleadings of the parties, following issues were framed: 1) Whether the workmen have continuously for 249 days in a year with the management, if o its effect? OPW 2) As per terms of reference. 8. Only the claimants i) [ENTITY], ii) [ENTITY], iii) [ENTITY], iv) [ENTITY] v) [ENTITY], vi) [ENTITY], vii) [ENTITY], viii) [ENTITY] and ix) ID 824/06/05 5 of 30 [ENTITY] examined themselves as the only witness in support of their respective case as WW1 to WW9. The claimants also examined the then Labour Inspectors [ENTITY] and [ENTITY] as WW 10 and WW11 respectively. 9. The management examined its Managing Director [ENTITY] as the only witness ( MW1) in support of its case. 10. Written arguments were filed by both the parties. 11. I have gone through the record including the written arguments filed by both the parties. 12. My issuewise findings are as follows: ISSUES NO.1 13. The burden of proving this issue was on the claimants. 14. In [PRECEDENT], it has been held as follows: ID 824/06/05 6 of 30 "4. He has also placed a decision of the Allabad High Court in [PRECEDENT], wherein a similar fact situation had arisen. In the said decision, it has been observed that the statement of claim supported by the affidavit of the workman constitute the preliminary evidence and it is upon the [ENTITY] / employer to controvert the same and if not so controverted then nothing further needs to be proved and done by the workman. However, the primary responsibility of establishing his case rests on the workman. And in that case, the Allahabad High Court held that the Labour Court had patently erred in holding that the burden of proof lay upon the employers. It further held that the obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. The party making the allegation and seeking redressal must seek an opportunity to lead evidence. A similar view was taken by the Division Bench of the said Allahabad High Court in the case of [PRECEDENT]. 5. Agreeing with the view taken in the said decision of the Allahabad High Court, I hold that the impugned order dated 22nd February, 1989 passed by the Labour Court asking the petitioner to lead evidence first cannot be sustained in law an, I accordingly quash the same. The workman is to lead evidence first as it is he who has to establish his allegations. The matter is remanded to the Labour Court for adjudication as per provisions of law. It is made clear that this Court has not expressed its view on the merits of the reference. In these ID 824/06/05 7 of 30 circumstances there shall be no order as to costs." (underlining be me.) 15. It is clear from the authority that initial burden of proving his/her case was on the claimants. 16. No evidence has been led by the claimants [ENTITY], [ENTITY] and [ENTITY]. Hence, there cannot be any doubt that these claimants have failed to prove the issue. 17. Although, the claimant [ENTITY] filed her affidavit as examination inchief, she never appeared before the Court to tender the same. In any case, she did not appear for her crossexamination. Hence, there cannot be any doubt the affidavit of the claimant [ENTITY] cannot be read. The result is that no evidence has been led by the claimant [ENTITY]. Hence, there cannot any doubt that the claimant [ENTITY] has also failed to prove the issue. 18. The claimant [ENTITY] was examined as WW6. He tendered his affidavit as examinedinchief. His crossexamination was deferred on 04.8.08. Thereafter, he never appeared for his crossexamination. ID 824/06/05 8 of 30 Hence, there cannot be any doubt that his affidavit cannot be read. The result is that no evidence has been lead by the claimant [ENTITY]. Hence, there cannot be any doubt that the claimant [ENTITY] has also failed to prove the issue. 19. In their respective affidavits filed as examinationinchief, the claimants i) [ENTITY], ii) [ENTITY], iii) [ENTITY], iv) [ENTITY], v) [ENTITY], vi) [ENTITY], vii) [ENTITY], and viii) [ENTITY], fully supported their respective cases as stated in the claim. They all relied upon the documents from Ex WW1/1 to Ex WW1/24. 20. Ex WW1/1 is a complaint dated 14.10.03 against the management herein addressed by Janhit Mazdoor Union, Delhi Pardesh (Regd) (hereinafter "the Union") to labour inspector, [ENTITY] Vihar, Delhi, Ex WW1/2 is the report given by the labour inspectors [ENTITY] and [ENTITY] to the Secretary of the Union in response to ExWW1/1, Ex WW1/3 is the notice dated 05.12.03 addressed by the Union to the management herein for demonstration against termination of employees on 19.10.03, Ex WW1/4 to Ex WW1/9 are postal receipts, Ex WW1/10 is a complaint dated 16.12.03 against the ID 824/06/05 9 of 30 management addressed by the Union to the Deputy Labour Commissioner, Nimri Colony, Delhi, Ex WW1/11 is notice dated 17.12.03 issued by Deputy Labour Commissioner to the management, Ex WW1/12 is the reply sent by the management to the General Secretary of the Union in respect of Ex WW1/3, Ex WW1/13 is an envelope sent by the management to the General Secretary of the Union, Ex WW1/14 is the demand notice dated 17.2.04 addressed by the claimants mentioned in the reference to the management, Ex WW1/15 is a postal receipt, Ex WW1/16 is a complaint dated 16.2.04 addressed to the Deputy Laboaur Commissioner, Nimri Colony, Delhi by the Union on behalf of claimants mentioned in the reference, Ex WW1/17 is a report dated 12.4.04 addressed by Sh. [ENTITY], Labour Inspector to the Union, Ex WW1/18 is a complaint dated 20.2.04 addressed to the Bonus Officer, Nimri Colony by the Union on behalf of some of the claimants in the present reference, Ex WW1/19 is a letter dated 19.07.09 addressed by the labour inspector [ENTITY] to the General Secretary of the Union, Ex WW1/20 is a copying agency application, Ex WW1/21 is a cash receipt issued by the Delhi District Court, Ex WW1/22 is photocopy of first page of the written statement of the management filed in LCA case instituted by the claimant [ENTITY] ID 824/06/05 10 of 30 Devi against the management in the Court of Ms. [ENTITY], POLC in the year 2005, Ex WW1/23 is the carbon copy of reply of the management to the application for calling records of [ENTITY] and 13 others workmen in a case in the Court of Smt. [ENTITY], POLC against the management and Ex WW1/24 is an Inland Letter addressed to the claimant [ENTITY] at the address of the management. 21. The testimony of claimant [ENTITY] goes unrebutted, unchallenged and uncontroverted as there is no crossexamination of the claimant [ENTITY] by the management. 22. Significantly, in their crossexamination, the other claimants namely i) [ENTITY], ii) [ENTITY], iii) [ENTITY], iv) [ENTITY], v) [ENTITY], vi) [ENTITY] and vii) [ENTITY] stated that they had no documents show that they were employed with the management. In his cross examination, the claimant [ENTITY] as WW2 denied that he never worked with the management and that he used to go there only to meet someone known to him and has filed the present case falsely. In their crossexamination claimants i) [ENTITY], ii) [ENTITY], iii) [ENTITY], iv) [ENTITY], v) [ENTITY] and vi) [ENTITY] denied that they worked ID 824/06/05 11 of 30 only for two months with the management only on contract. 23. The claimants also examined Sh. [ENTITY], labour inspector as WW10, who in his examinationinchief, proved his report Ex WW1/2. In his crossexamination, the labour inspector Sh. [ENTITY] stated that he had not taken the statements of the persons whose names are written in Ex WW1/2. He stated that the workers found there had given their names only and that they had not told him about their tenure of employment and that he had also not enquired about these aspects. 24. The claimants also examined the labour inspector Sh. [ENTITY] as WW11 who, in his examinationinchief, proved his report Ex WW1/17. In his crossexamination, Sh. [ENTITY] stated that he had not brought office copy Ex WW1/17. He denied that Ex WW1/17 is fabricated and that Ex WW1/17 is a mechanical printed format and that the same was prepared without inspecting the spot. 25. In his affidavit filed as examinationinchief, Sh. [ENTITY] ( MW1) fully supported the case of the management as stated ID 824/06/05 12 of 30 in the written statement and specifically stated that none of the claimants worked with the management for 240 days or more continuously. He further stated that although they worked with the management some time in the year 2003 but none of them worked with the management for more than six months and they probably worked (for) around 100 days. 26. In his crossexamination, MW1 admitted that his name and address of the management given on Ex WW1/14 is correct and that no reply to Ex WW1/14 was given by the management. He stated that the management was registered in the year 1995, that no appointment letter was given to the workmen in the present case, that no attendance card was given to the workmen in the present case, that his name and address of the management given on Ex WW1/16 is correct, that his name and address given on Ex WW1/24 is correct, that he did not remember whether the labour inspector inspected the management on 27.2.04 and that he did not remember if the management was inspected by the labour inspectors [ENTITY] and [ENTITY] on 16.10.03. He denied that all the claimants have worked for more than 240 days in each year with the management. ID 824/06/05 13 of 30 27. In their written arguments, it is contended by the claimants that the burden of proving the fact that the claimants did not work for at least 240 days with the management during the year immediately preceding the date of their alleged termination was on the management. In his crossexamination recorded on 29.3.11, MW1 stated that the management is being run since 1995 whereas in his crossexamination recorded on 03.9.12, he stated that the management is bring run since the year 2002. Keeping in view this contradiction, coupled with the fact that the management has not filed any document in this regard before the Court clearly shows that the claimants have worked for more than 240 days each year with the management. Further, in his crossexamination on 29.03.11, MW1 stated that no appointment letter or attendance card was given to the workmen in the present case which shows that the workmen worked for more than 240 days every year with the management. Moreover, the reports given by the labour inspectors Sh. [ENTITY] and Sh. [ENTITY] and their statements show that all the claimants were working in the management on 16.10.03. This also shows that they all worked for more than 240 days with the management. Further, there is no cross examination on behalf of the management in respect of Ex WW1/24 ID 824/06/05 14 of 30 and Ex WW1/25. Hence, both these documents are deemed to be admitted by the management. Ex WW1/24 is a letter received at the address of the management by the claimant [ENTITY] in the year 1999 which shows that the claimant [ENTITY] worked with the management from 1998 to 2003 i.e. for six years. 28. It has been held by Hon'ble Supreme Court in [PRECEDENT] as follows: "4. In large number of cases the position of law relating to the onus to be discharged has been delineated. In Range Forest Officer [ENTITY], [PRECEDENT], it was held as follows: "2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for
240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked 240 days. The Tribunal vide its award dated 10.8.1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days the Tribunal stated that the burden was on the ID 824/06/05 15 of 30 management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry"or not, though reliance is placed on the decision of this Court in [PRECEDENT]. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but his claim was denied by the appellant. 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. However, Mr. [ENTITY] appearing for the Department states that the ID 824/06/05 16 of 30 State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."
The said decision was followed in [PRECEDENT].
5. In Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr. 2004(4) SCT 214 : (2004(8) SCC
161), the position was again reiterated in paragraph 6 as follows :
"It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 day in the year preceding termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer [ENTITY], [PRECEDENT]. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere nonproduction of the muster roll for a particular period was not sufficient for the Labour Court to hold that the ID 824/06/05 17 of 30 workman had worked for 240 days as claimed."
6. In Municipal Corporation, Faridabad v. [ENTITY], 2004(4) SCT 211 : (2004 (8) SCC 195), it was held that the burden was on the workman to show that he was working for more than 240 days in the preceding one year prior to his alleged retrenchment. In [PRECEDENT] the position was again reiterated in paragraph 11 as follows:
"The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of Municipal Corporation, Faridabad v. [ENTITY], 2004(4) SCT 211 : JT (2004 (7) SC 248) wherein this Court disagreed with the High Court's view of drawing of an adverse inference in regard to the nonproduction of certain relevant documents. This is what this Court had to say in that regard:
"A Court of law even in a case where provisions of [ACT] apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The ID 824/06/05 18 of 30 matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, other circumstances may exist upon which such intentional non production may be bound to be justifiable on some reasonable grounds. In the Instant case, the Industrial Tribunal did not draw any adverse inference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent."
7. In [PRECEDENT] a threeJudge Bench of this Court again considered the matter and held that the initial burden of proof was on the workman to show that he had completed 240 days of service. Tribunal's view that the burden was on the employer was held to be erroneous. In [PRECEDENT] it was held as follows :
"So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officer v. S.T. Hadimani, 2002(3) SCT 382 : (2002(3) SCT 25 the onus is on the workman."
ID 824/06/05 19 of 30 The position was also examined in detail in [PRECEDENT] and the view expressed in Range Forest Officer, [ENTITY], M.P. Electricity Board cases (supra) was reiterated.
8. In [PRECEDENT], the decisions referred to above were noted and it was held as follows :
"Analyzing the above decisions of this court, it is clear that the provisions of the [ACT] in terms do not apply to the proceedings under [SECTION] of the [ACT]. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage ID 824/06/05 20 of 30 register, the attendance register etc. Drawing the adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or selfserving statements made by the claimant / workman will not suffice the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere nonproduction of muster rolls per se without any plea of suppression by the claimant workman will not be ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under [SECTION] of the [ACT] will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."
The above position was again reiterated in a recent judgment in [PRECEDENT]"
( underlining by me)
29. It is clear from the authority that the initial burden of proving that the claimants had worked for more than 240 days during the year immediately preceding the date of their alleged termination was on the ID 824/06/05 21 of 30 claimants. In fact, at the time of framing of issue the burden of proving issue no.1 was specifically placed on the claimants. Hence, the contention of the claimants in the written arguments that the burden of proving this fact was on the management is rejected.
30. It is also clear from the authority that mere affidavit and self serving statements of the claimant are wholly insufficient to discharge this burden on the claimants. Further, a finding in respect of the defence of the management can be returned only if this initial burden is discharged to some extent by the claimants.
31. Ex WW1/1, Ex WW1/3, Ex WW1/10, Ex WW1/14, Ex WW1/16 and Ex WW1/18 are all self serving documents/statements of the claimants which do not in any manner prove that they worked with the management for more than 240 days during the year immediately preceding the date of their alleged termination. In fact, Ex WW1/1 does not contain the name of a single claimant. Ex WW1/10 and Ex WW1/18 do not contain the tenures at all. Ex WW1/4 to Ex WW1/9 and Ex WW1/15 are only the postal receipts. They obviously do not show the fact that the claimants worked with the management for at ID 824/06/05 22 of 30 least 240 days during the year immediately preceding the date of their alleged termination. Ex WW1/2 is the report of labour inspectors [ENTITY] [ENTITY] stating that most of the claimants herein were found working at the premises of the management on 16.10.03 when the same was inspected by them. This report, again, does not show that the claimants were working for at least 240 days with the management during the year immediately preceding the date of their alleged termination. Ex WW1/11 is a notice given by the Deputy Labour Commissioner to the management. It does not contain the name of the any of the claimants much less their tenures. Ex WW1/12 is stated to be the report sent by the management to the notice Ex WW1/3. It nowhere shows that the management admitted that any of the claimants worked with the management at least 240 days during the year immediately preceding the date of his/her termination. Ex WW1/13 is the envelope in which Ex WW1/12 was received by the claimants. Ex WW1/17 is the report of the labour inspector [ENTITY] stating that the management was inspected on 19.2.04 on the complaint of the union and was directed to produce records on 27.2.04 but the management neither appeared before the labour inspector nor produce the records. The report does not contain the name of any of the ID 824/06/05 23 of 30 claimants much less their tenures. Ex WW1/19 is a complaint regarding the bonus only. It does not contain the names of a single claimant much less his/her tenure much less that he/she worked for more than 240 days during the year immediately preceding the date of his/her alleged termination. Ex WW1/20 to Ex WW1/23 also do not prove this fact. Ex WW1/24 merely shows that the claimant [ENTITY] received the said letter at the address of the management and nothing more. There is no Ex WW1/25 (as mentioned in the written arguments by the claimants).
32. The result is that except the affidavits of the claimants and self serving documents, nothing has been placed on record by the claimants to show that any one of them worked with the management for at least 240 days during the year immediately preceding the date of their alleged termination. No proof of receipt of salary or wages for 240 days or order or record in this regard was produced. No coworker was examined by the claimants to prove this fact.
33. As held in the authority, this serving affidavit is insufficient to discharge the burden to prove this fact on the claimants.
ID 824/06/05 24 of 30
36. In view of the above discussion, it is held that all the contesting claimants have failed to prove that they worked for more than 240 days during the year immediately preceding the date of their alleged termination. The issue is, accordingly, decided in favour of the management and against the contesting claimants.
ISSUE NO.2
35. [SECTION] of the Act is as follows:
"25 F. Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served ID 824/06/05 25 of 30 on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette"
( underlining by me)
36. It is clear that the provision is applicable only if the employee was in continuous service with the employer for a period of not less than one year.
37. [SECTION] of Act is as follows:
"25 B. Definition of continuous service.For the purposes of this Chapter,
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 an accident or a strike which is not illegal, or a lockout 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 calender months preceding the date with reference to which calculation is to be made, has actually ID 824/06/05 26 of 30 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 mind; 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 calender months preceding the date with reference to which calculation is to b e made, has actually worked under the employer for not less than
(i) ninetyfive days, in the case of workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case.
Explanation.For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which
(i) he has been laidoff under an agreement or as permitted by standing orders made under the [ACT], or under the Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks."
( underlining by me ) ID 824/06/05 27 of 30
38. It is clear from the provision that an employee who has completed at least 240 days during the year immediately preceding the date of their alleged termination is deemed to be in continuous service with his employer for the purposes of [SECTION] of the Act.
39. Reading both the provisions together, it is clear that an employee who has not completed at least 240 days during the year immediately preceding the date of his alleged termination cannot complain about violation of [SECTION] of the Act by his employer .
40. While deciding issue no.1, I have held that claimants have failed to prove that they worked for at least 240 days during the year immediately preceding the date of their alleged termination with the management. Hence, there is no question of violation of [SECTION] of the Act by the management. Hence, it is held that the termination of the services of the claimant was neither illegal nor unjustified. Hence, the claimants are not entitled to any relief. The claims of the contesting claimants are, therefore, dismissed. No costs.
41. In view of the above discussion, the reference as per the serial ID 824/06/05 28 of 30 number of the claimants as given in the reference is answered as follows:
Sl no Name of the workman Result 1 [ENTITY] Dismissed 2 [ENTITY] Dismissed 3 [ENTITY] Dismissed 4 [ENTITY] Dismissed 5 [ENTITY] No claim award 6 [ENTITY] Dismissed 7 [ENTITY] Dismissed 8 [ENTITY] Dismissed 9 [ENTITY] No claim award 10 [ENTITY] Dismissed 11 [ENTITY] Dismissed 12 [ENTITY] No claim award 13 [ENTITY] No claim award 14 [ENTITY] Dismissed 15 [ENTITY] No claim award 16 [ENTITY] Dismissed 17 [ENTITY] Dismissed 18 [ENTITY] No claim award 19 [ENTITY] No claim award 20 [ENTITY] Dismissed ID 824/06/05 29 of 30
42. Let the requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno and announced in the open court on 25.7.2014 ( [ENTITY]) POLC/KKD/DELHI/XVII ID 824/06/05 30 of 30