IN THE COURT OF DR. [ENTITY], PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI ID NO. 283/05 (old), 498/08 (new) Unique Case ID No. 02402C0380092005 BETWEEN THE WORKMEN Sh. [ENTITY] & 12 others as per annexure A, C/o Sh. [ENTITY] Advocate, C35, [ENTITY], Tis Hazari Courts, Delhi. AND THE MANAGEMENT OF M/s. R.K. Electricals India Pvt. Ltd., A47, Narayana Industrial Area, Phase 1, New Delhi - 28. Date of Institution : 06.07.2005 Date on which award reserved : 06.04.2010 Date of passing of award : 12.04.2010 AWARD 1.
The Secretary (Labour), Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F. 24(654)/05 Lab./320509 dated: 16.06.2005 with the following terms of reference.
"Whether the services of Sh. [ENTITY] & 12 Others as per Annexure'A' have been terminated illegally and/or unjustifiably and if so,to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws/Govt. Notifications and to what other relief are they entitled and what directions are necessary in this respect?"
2. A joint statement of claim has been filed in this case on behalf of 13 workmen namely S/Sh. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] respectively as mentioned in detail in annexure 'A' attached with the terms of reference. The main submissions of these workmen in their joint statement of claim are to the effect that they had been working with the management regularly and sincerely at various posts, for various periods and drawing various wages as mentioned in detail in annexure 'A' attached with the terms of reference; that the management illegally terminated their services w.e.f.
01.08.2004 without any justified reasons; that notice of the same was put by the management on 01.07.2004 at its factory premises to the effect that the company had been divided and the Director of the Company had been changed; that all the workmen were directed to settle their accounts and to take their full and final settled dues from the management w.e.f. 31.07.2004; that no amount was paid to them and no service benefits were given to them after 31.07.2004; that management never provided any legal facilities to them and when they verbally demanded the same from the management, it became annoyed and illegally terminated their services w.e.f. 01.08.2004 without any justified reasons; that they had sent a legal demand notice dated 25.08.2004 to the management but the management did not answer the demand notice and verbally refused to take them back in their jobs. Lastly, a prayer was made for their reinstatements with full back wages and all other consequential benefits as per law.
3. The averments of statement of claim were strongly denied in the written statement (in short WS) filed on behalf of the management. It has been mentioned in the WS, interalia, that the management never terminated the services of the claimants herein; that they themselves absented from their duties w.e.f. 12.08.2004 except the claimant [ENTITY] who started absenting from his duties w.e.f. 11.07.2004; that the workmen started absenting without any intimation of the same to the management and without sanctions of leaves in their favour by the management; that in this way, they themselves abandoned their jobs; that there was no question of termination of their services illegally by the management, as alleged; that whatever was due to them till they worked with the management, the same had been paid to them as per rules; that nothing was due to the workmen from the management. Lastly, a prayer was made to dismiss their statement of claim.
4. On the basis of the pleadings of the parties, following issues were framed on 21.04.2006:
1. As per terms of reference.
2. Whether the workmen abandoned their duties w.e.f. 12.08.2004, except Sh. [ENTITY] and whether Sh. [ENTITY] abandoned his duty from 11.07.2004? OPM
3. Relief.
5. From the side of the workmen, S/Sh. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] respectively were examined in this case and they also filed their respective affidavits on record in support of their contentions. Thereafter, evidence of workmen side was closed.
6. It is relevant to mention here that 13 witnesses have deposed on behalf of the contesting workmen but each of them was typed as WW1. In my considered opinion, it appears to be a typing error. In my further considered opinion, these witnesses ought to have been treated and typed as WW1 to WW13 respectively. Hence, this clarification at this stage.
7. From the side of the management, no witness was examined despite opportunity given.
8. I have heard oral final arguments in this matter from both sides which were almost the repetitions of averments of pleadings of both the sides on record.
9. I perused the entire judicial file minutely and my issuewise decision is as under:
10. I have taken up both these issues together because to my considered view, both these issues are interconnected with each other and can be decided by the same reasoning.
11. In my further considered opinion, the primary burden of proof of issue no. 1 was upon the workmen and the primary burden of proof of issue no. 2 was upon the management. In coming to this conclusion, I also find support from an important judgment of Hon'ble Delhi High Court given in the case of [PRECEDENT]. 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 Delhi 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 nonexistence of a fact contended to by a party. It was further held in his 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 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 workmen on record pertaining to both these issues, the workman Sh. [ENTITY] (who deposed as WW1) admitted in his crossexamination that he did not return to the employment of management despite opportunity given to him by the management to resume duty during conciliation as well as in the court.
He denied the suggestion that he was never terminated by the management but rather he himself abandoned his job but he has not produced any cogent evidence on record, either oral or documentary, in support of this denial. He admitted that he did not apply for any job in Delhi after his alleged termination. He further admitted that he shifted to his village where he was working on daily wages.
14. Almost similar is the deposition of remaining witnesses examined in this case on behalf of the workmen as that of WW1 Sh. [ENTITY] on the above mentioned points. I have also gone through the documents filed on behalf of the workmen on record. In my considered opinion, none of these documents establishes that the service of any of the workmen herein was terminated illegally and/or unjustifiably by the management, as alleged in the statement of claim of the workmen. There is an important judgment of Hon'ble Delhi High Court given in the case of [ENTITY](Shri) vs. Sh. Dharam Paul Arora & Anr., 2006 LLR 1043 (Delhi High Court), in which Hon'ble Delhi High Court held mainly to the effect that if a workman fails to resume duty even when an offer was made to such workman before the conciliation officer as well as before the Industrial Tribunal, an irresistible presumption was that he was no longer interested in the job and that he had abandoned the job of his own accord.
15. In yet another judgment of Hon'ble Bombay High Court given in the case of [ENTITY] vs. Chembur Warehouse Company & Another, 2003 LLR 1150 (Bombay High Court), it was held mainly to the effect that a workman cannot reap the benefit of his own fault when he fails to respond to the offer of the employment to join duties and more particularly when such offer was reiterated before the conciliation officer and before the labour court.
16. The contesting workmen in this case admittedly did not return to the employment despite offer made by the management to these workmen during conciliation proceedings as well as in the labour court as per own admissions made by these workmen in their respective cross examinations conducted on behalf of the management. Hence, the ratio of the decisions of [ENTITY]'s Case (Supra) and [ENTITY]'s Case (Supra) is found fully applicable to the facts and circumstances of the present case.
17. In view of the above mentioned reasons, coupled with entire material on record, I am of the considered opinion that the workman Sh. [ENTITY] abandoned his job at his own will and accord w.e.f. 11.07.2004 and remaining workmen abandoned their duties at their own will and accord w.e.f. 12.08.2004 and hence there was no question of termination of their services illegally and/or unjustifiably by the management. Accordingly, both these issues are decided against the workmen and in favour of the management.
ISSUE NO. 3 :
18. In view of the findings of this court on issue nos. 1 & 2 to the above effect, I am of the considered opinion that the services of the workmen herein had not been terminated illegally and/or unjustifiably by the management, as alleged, and hence the workmen herein were not entitled to claim any relief against the management.
19. An award is passed to the above effect and reference is answered accordingly. 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 12.04.2010 Presiding Officer Labour Court No. IX Karkardooma Courts, Delhi