BEFORE THE COURT OF SH [ENTITY] PO : LABOUR COURT : KKD : DELHI ID 747/06/04 Unique ID No.02402C0128722004 IN THE MATTER OF : M/s. [ENTITY] Management Versus Sh. [ENTITY] C/o Udyog Mazdoor Front Union B66/2 (Opposite) Industrial Area Wazirpur Delhi Claimant DATE OF FILING : 27.03.2004 ARGUMENTS CONCLUDED ON : 12.10.2012 AWARD PASSED ON : 17.10.2012 A W A R D 1. This is a reference sent by the Government of NCT of Delhi vide order number F.24(3901)/2003/Lab168791 dated 19.02.2004 with the following terms : ID 747/06/04 Page 1 of 25 "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 relief is he entitled and what directions are necessary in this respect. ?" 2. In his statement of claim, it is submitted by the claimant that he was working with the management for the last four years. His last drawn wages were Rs. 1500/ per month. The management was not providing various facilities as per labour laws such as appointment letter, minimum wages, encashment of earned and casual leaves. The claimant had been demanding the same orally continuously. Annoyed with the demands of the claimant, the management stopped the salary of the claimant for the months of February and March 2003. On 02.04.2003, when the claimant demanded his unpaid salary etc, the management pressured him to resign without any reason and without prior information. When the claimant refused to do the same, the management terminated the services of the claimant without any notice or notice pay or service compensation or chargesheet or enquiry, in violation of [SECTION] of the [ACT] ( hereinafter the "Act"). The claimant also sent a demand notice dated 02.04.2003 to the management by registered AD and [ACT] demanding his unpaid ID 747/06/04 Page 2 of 25 salary and reinstatement. The conciliation proceedings started by the claimant also failed. The claimant is unemployed since the date of his termination despite his best efforts. The claimant has sought reinstatement with full back wages, payment of unpaid wages and payment of minimum wages. 3. The management has contested the claim by filing a written statement. It is submitted by the management that the claimant was employed as semi skilled worker w.e.f 05.12.02 at a salary of Rs. 2900/ per month. However, on 10.12.02, the claimant met with an accident in the factory premises and remained under treatment of ESI for a period of more than two months. Even after the fitness, the claimant did not report for his duty inspite of calls and messages of the management and, thus, abandoned his service. Hence, the claimant did not complete 240 days of employment. The other contents of the claim are denied by the management who has sought rejection of the reference and passing of a no dispute award. 4. In his rejoinder, the claimant has controverted the pleas of the management and has reiterated those of his claim. ID 747/06/04 Page 3 of 25 5. From the pleadings of the parties, following issues were framed: 1. Whether the workman has worked continuously for 240 days in a year with the management, if so its effect? OPW 2. If answer to issue no.1 above is in affirmative, whether the workman himself left the services of management as stated in para 1 of reply on merits of W.S., if so its effect ? OPM 3. As per terms of reference 6. The claimant examined himself as the only witness (WW1) in support of his case whereas the management examined two witnesses including its proprietor in support of its case. 7. Written arguments were filed by the claimant who relied upon the following authorities in support of his case: a) 1990 ( 2012), DLT 91 DB, [PRECEDENT]; b) 190 ( 2012) DLT 378, [PRECEDENT], [PRECEDENT]; d) 1996(73) FLR 1216, [PRECEDENT]; e) 140 ( 2007) DLT 351, [PRECEDENT], [PRECEDENT] Page 4 of 25 8. I have heard authorised representatives of both the parties and have also gone through the record as well as the authorities relied upon by the claimant. 9. My issuewise findings are as follows: ISSUES NO.1 10. The burden of proving this issue was on the claimant. In his affidavit filed as examinationinchief, the claimant fully supported his case as stated in the claim and specifically stated that at the time of termination of his services on 02.03.2004, he was working with the management for the last four years and relied upon report of the Labour Inspector as Ex WW1/1, ESI card as Ex WW1/2, demand letter as Ex WW1/3 and record of his medical treatment as Ex WW1/4 ( collectively 7 sheets). 11. In [PRECEDENT], Hon'ble Delhi High Court, held as follows. ID 747/06/04 Page 5 of 25 "10. It is well settled that the primary burden of proof to establish a plea rests on a person so claiming. In this behalf reference can be appropriately made to the judicial pronouncement in [PRECEDENT] [PRECEDENT] (para 49) [PRECEDENT]; [PRECEDENT]. [PRECEDENT]; [PRECEDENT] and 1973 Lab. I.C. 398 N.C.John v. TTS &CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same. 11. In this behalf, it was only if the respondent had discharged
the onus and burden of proof cast on him and had place some material on record to indicate that he had been employed by the petitioner that the petitioner would have been required to displace the case set up by the respondent by leading positive evidence.
12. In [PRECEDENT] Manager, [PRECEDENT]., it was held by the Apex Court that it is only if the initial burden of proof, which was on the workman, was discharged to some extent, that a finding can be returned in respect of the defence of the management. Furthermore, a plea having been set up by the workman, the initial burden of proof was on the workman to show that he had been employed by the petitioner in the claim capacity on the stated terms. The circumstances in which the court may draw an adverse inference against the management have also been succinctly set down thus :
"22. An adverse inference, therefore, was drawn for non production of the attendance register alone, and not for non production of the wage slips. Reference to "other relevant documents" must be held to be vague as the appellant herein had not been called upon to produce any other documents for the said purpose.
23. It appears that the learned Tribunal considered the matter solely from the angle that the appellant had failed to prove its plea of abandonment of service by the respondents.
24. The question came up for consideration before this Court recently in SO [ENTITY] wherein it was held ([CASE NUMBER]) :
"15. A Court of law even in a case where provisions of the [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 matter, however, would be different where despite direction by a Court the evidence is withheld. Presumption as to adverse inference for nonproduction 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, thus, is not obligatory because notwithstanding the intentional non production, other circumstances may exist upon which such intentional nonproduction may be found to be justifiable on some reasonable grounds."
25. Referring to the decision of this Court in Indira Nehru Gandhi v/s Raj Narain (Siri [ENTITY] case, SCC P. 199, Para 19) this Court observed :
"19. Furthermore a party in order to get benefit of the provisions contained in [SECTION] of the [ACT], must place some evidence in support of his case. Here the respondent failed to do so."
26. In Hariram, this Court observed (SCC P. 250, Para
11) :
"11. 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."
27. As noticed herein before, in this case also the respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference.
Burden of proof
28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellants on the premise that they have failed to prove their plea of abandonment of service stating :
"It is admitted case of the parties that all the first parties under the reference CRs Nos. 1 to 11 of 1992 have been appointed by the second party as ticca mazdoors. As per the first parties, they had worked continuously from April, 1980 to December, 1982. But the second party had denied the above said claim of continuous service of the first parties on the ground that the first parties has not been appointed as regular workmen but they were working only as temporary parttime workers as a ticca mazdoor and their services were required whenever necessity arose that too on the leave vacancies of regular employees. But as strongly contended by the Counsel for the first party, since the second party had denied the above said claim of continuous period of service, it is for the second party to prove through the records available with them as the relevant records could be available only with the second party."
29. The Tribunal, therefore, accepted that the appellant had denied the respondents' claim as regards their continuous service.
30. In [PRECEDENT], it was stated :
"3 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 this 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 the ground alone, the award is liable to be set aside."
31. In Sir [ENTITY] this Court held : ([CASE NUMBER], Para
13) "13. The provisions of the [ACT] per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. In terms of [SECTION] of the [ACT], an order retrenching a workman would not be effective unless the conditions precedent therefore, are satisfied. [SECTION] postulates the following conditions to be fulfilled by an employer for effecting a valid retrenchment :
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof ;
(ii) payment of compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months."
It was further observed : ([CASE NUMBER]) "14 As noticed hereinbefore, the burden of proof was on the workman. From the award, it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of [SECTION] of the [ACT]. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. It is improbable that a person working a local authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not examine any other witness in support of his case."
32. Yet again in Hariram, it was opined : ([CASE NUMBER]) "10 We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the respondent applicants."
x x x x x
14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and cause the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman.
15. In the instant case, the workman filed an affidavit by way of evidence on the 29 April, 1993 and closed his evidence. Thus, th the only evidence in support of the plea of employment was the self serving affidavit filed by the workman and nothing beyond that to support his claimed plea of service of seven years. In view of the principles laid down by the Supreme Court in [PRECEDENT], such affidavit by itself is wholly insufficient to discharge the burden of proof on the workman. (underlining by me).
12. It is clear from the authority that the burden of proving that the claimant worked for at least 240 days in the year immediately preceding his date of termination with the management was on the claimant and that a finding regarding the defence of the management can be returned only if this burden of proof is discharged to some extent by the claimant.
13. In Ex WW1/2 itself (on which the claimant has himself has relied upon), the date of appointment is given as 05.12.02. No other date of appointment or even the tenure has been given in the other documents relied upon by the claimant. Further, the claimant has himself placed on record one more document which has been exhibited by me today as Ex C1.Although Ex C1was not specifically referred to or relied upon by the claimant in his evidence, there cannot be any doubt that since the document has been filed by the claimant, the same can be read against him. In Ex C1 also, the date of appointment of the claimant is stated to be 05.12.02.
14. In his crossexamination, the claimant admitted his signatures on Ex WW1/M1 which is the salary register for the month of December 2002. In this register also, the date of appointment of the claimant is stated to be 05.12.02. In his crossexamination, the claimant admitted his signatures on Ex WW1/M3 and Ex WW1/M4. Ex WW1/M3 is the appointment letter of the claimant which shows the date of appointment as 05.12.02. In his written arguments, it is submitted by the claimant that the date under the signature of the management on Ex WW1/M3 is 03.11.02 which shows that the appointment letter is forged. I am of view that the the contention is misplaced. The date under the signature of the management on Ex WW1/M3 is 03.12.02 and not 03.11.02 as contended. The last sentence in Ex WW1/M3 states that in case the terms and conditions stated in the letter are acceptable to the claimant then the same should be signed by him.
Obviously, this letter was issued on 03.12.02 i.e. prior of joining of the claimant on 05.12.02 and, thus, the appointment letter does not appear to be forged. Hence, the contention of the claimant in this regard is rejected. Ex WW1/M4, which is the declaration form for ESIC also shows the date of appointment as 05.12.02. In his crossexamination, the claimant stated that he gave the date of appointment before ESI and admitted that the date of appointment is 05.12.02 therein.
15. It is nowhere the case of the claimant in the notice or claim or rejoinder or affidavit or written arguments that the management obtained his signatures on any blank papers. On the contrary, as noted above, in the claim itself, his case is that he refused to resign when asked by the management. Again, it is nowhere the case of the claimant in notice or claim or rejoinder or affidavit or written arguments that the dates on these documents were wrongly written.
16. MW1 in his affidavit filed as examinationinchief specifically stated that the claimant was employed w.e.f 05.12.02. In his cross examination it is nowhere suggested to MW1 that the claimant worked for four years or even that he worked for 240 days during the year immediately preceding the date of his alleged termination with the management. Hence, the testimony of MW1 in this regard goes unrebutted, unchallenged and uncontroverted and, thus, the same is deemed to be admitted by the claimant.
17. In view of the above discussion, I am of the view that the authority M/s. Automobile Association of Upper India (Supra) is squarely applicable to the facts of the present case. In fact, the present case is on a much worse footing in as much as all the documents filed by the claimant either go against him or are silent on this aspect and there was no crossexamination of MW1 in this regard by the claimant.
18. In view of the above discussion, I have no hesitation in holding that the workman has failed to prove that he worked for at least 240 days in the year immediately preceding the date of his termination with the management. The issue, is accordingly, decided in favour of the management and against the claimant.
19. Both these issues are being taken up together as both are inter connected. The burden to proving that his services were illegally terminated by the management was on the claimant whereas the burden of proving issue no.2 was on the management.
20. In his affidavit filed as examinationinchief, the claimant fully supported his case as stated in the claim in this regard. As noted above, in his examinationinchief, he relied upon report of the Labour Inspector as Ex WW1/1 and demand letter as Ex WW1/3. There is no crossexamination of claimant in respect of these two documents. It was not at all suggested to the claimant on behalf of management that these documents are forged or that no notice was given to the management. Ex WW1/1 is dated 03.06.03. It states that on the complaint of the Union in respect of the claimant the management was given notice to appear in the Labour Office and that on nonappearance of the management a final notice was also given but the management did not file any reply and that during the discussion, the management orally admitted that the claimant had worked for sometime with the management and had left after taking full and final settlement. It is clear that Ex WW1/1 was issued within just about two months of the alleged termination. Ex WW1/3 is dated 02.4.03 i.e the same day on which the claimant claims that his services were terminated. In his crossexamination, the claimant denied that he did not approach the management to resume his duties and that he himself had not joined the duties and stopped going there. Significantly, although, in the written statement it is specifically stated by the management that some calls and messages were sent by the management to the claimant asking him to join his duties, no such suggestion was given to the claimant in his crossexamination.
21. In his affidavit filed as examinationinchief, the proprietor of the management (MW1) fully supported his case in this regard as stated in the written statement. In his crossexamination, he stated that the management did not send any letters to the claimant when he remained unauthorisedly absent nor did the management initiate disciplinary proceedings. He admitted that the claimant was giving slips during the treatment in ESI upto 24.02.03, although, MW1 denied that the management did not take the claimant back into service when he reported after treatment.
22. In [PRECEDENT], the Hon'ble Supreme Court held as follows :
"It is thus well settled law that right to life enshrined under [SECTION] of the [ACT] would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardizing not only his /her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice."
(underlining by me)
23. In [PRECEDENT], Hon'ble Delhi High Court held as follows : "It is settled legal position that the abandonment of service cannot be readily inferred. Abandonment of service is a question of intention which can be gathered from the totality of the facts and circumstances of each case. There has to be a clear evidence on record to show that despite grant of reasonable opportunity to the employee by the management, he failed to join back his duties without any sufficient reasons and therefore in the absence of any such cogent and convincing evidence, voluntarily abandonment on the part of the employee cannot be readily inferred None of these letters were sent by the respondent management through registered AD and on the other hand the petitioner sent a demand notice dated 21.7.1992 through registered AD which was replied by the respondent management vide their reply dated 24.8.1992 wherein the respondent management also gave reference of the above said letters sent to the petitioner by [ACT]. The petitioner in his rejoinder dated 3.9.1992 clarified to the respondent management that such letters were never received by him. The petitioner also sought to castigate the respondent in adopting dubious means in obtaining some certificates of posting from the post office to prove service of the said letters. No doubt that under [SECTION] of the [ACT] service through [ACT] does give rise to a presumption but certainly service through [ACT] is a frail piece of evidence. The respondent management has failed to prove on record any dispatch register or any other documentary evidence to show that the said letters were dispatched by the respondent management in their normal and ordinary course of business. The petitioner who had put in 16 years of long service is not expected to be thrown out of employment just based on three [ACT] letters purported to have been sent to him requiring him to join back his duties, he would not have sent demand notices just within a period of one andahalf month of his termination and immediately thereafter having raised an industrial Dispute.
10. Hence, the totality of the facts do not justify that in the aforesaid back drop of the circumstances the petitioner would have drop of the circumstances the petitioner would have voluntarily abandoned his services. It is not in dispute that the respondent did not issue any memo or set up an enquiry for the unauthorized absenteeism of the petitioner from his duties and it is quite evident that with the help of such [ACT] letters the respondent prepared the ground to circumvent the legitimate rights of the petitioner "
(underlining by me.)
24. In Hindustan Associates Engineer Pvt. Ltd. Vs. Sh. K.K. Aggarwal & Ors. 2011 LLR 312, Hon'ble Delhi High Court held as follows : "As far as the case of abandonment is concerned, the counsel for the respondent No.1 workman has drawn attention to the crossexamination of the witnesses of the petitioner in which it is admitted that no letter or notice asking the respondent No.1 workman to join back was issued. The case of the petitioner is of abandonment with effect from 1st May, 1966. The case of the respondent No.1 workman is of having not been allowed to work since 1st May, 1996. It is admitted that the respondent No.1 workman at least on 10 th December, 1996 called upon the petitioner to allow him to work. Had the respondent No.1 workman abandoned services, the petitioner instead of opposing the same would have allowed him to join considering the short time within which the said demand was made. Moreover, it has been held in [PRECEDENT] that for abandonment also a proper enquiry has to be made and which admittedly has not been done in the present case."
(underlining by me)
25. I am of the view that the authorities are squarely applicable to the facts of the present case. The demand letter Ex WW1/3 was sent by the claimant on the date of alleged termination/abandonment itself.
Ex WW1/1 shows that he approached labour departments promptly.
The reference itself is dated 19.02.04 is within less than a year of alleged termination/abandonment. All these facts clearly show that the claimant was very much interested in doing his job. Under such circumstances, in case the claimant had himself not joined his service (as contended by the management), the management would have allow him to join his duties.
26. In view of the above discussion, it is held that the services of the claimant have been terminated by the management illegally and unjustifiably and that the claimant himself did not leave the service of the management. Issue no. 2 & 3 (partly) are accordingly decided in favour of the claimant and against the management.
27. Coming to relief, [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 on the appropriate Government for such authority as may be specified by the appropriate Government by notification in the Official Gazette"
28. [SECTION] of the 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 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 calender months preceding the date with reference to which calculation is to be 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."
(underling by me)
29. It is clear from the provisions that [SECTION] is applicable only if an employee has worked with the management for a period of at least 240 days during the year immediately preceding the date of his termination. In other words, [SECTION] is not applicable where an employee has not worked for at least 240 days during the year immediately preceding the date of his termination.
30. As noted above, while deciding issue no.1, I have held that the claimant has failed to prove that he worked for at least 240 days during the year immediately preceding the date of his termination with the management. Hence, [SECTION] of the Act is not applicable.
Consequently, the claimant is not entitled to any relief.
31. I have gone through the authorities relied upon by the claimant.
There cannot be any dispute about the propositions of law laid down in the authorities but it is a settled law that each case is to be decided according to its own facts. I am of the view that the facts in the present case are materially different from those in the authorities. In none of the authorities, the claimant failed to prove that he worked with the management for at least 240 days during the year immediately preceding the date of his termination. Hence, with great respect, I am of the view that none of the authorities is applicable to the facts of the present case.
32. Hence, the claim is dismissed. No cost. The reference is answered accordingly.
33. Let the requisite number of copies be sent to the appropriate government for publication of the award.
Dictated to the Steno and announced in the open court on 17th October 2012 ( [ENTITY]) POLC/KKD/DELHI/XVII