Amco Batteries Limited vs Labour Court-Iv And Ors.
2004 Latest Caselaw 1219 Del

ORDER

Swatanter Kumar, J.

1. Mohd. Shakeel was working with the Management of Amco Batteries Limited for more than 2 years when without any reason his services were terminated on 25th July, 1988. According to the workman the Management had taken this action after inspection officer gave direction to the Management to provide legal facilities which they have been pressing for quite some time. Against this illegal termination of service workman raised an industrial dispute. Before the Conciliation Officer parties failed to settle the matter as a result thereof the Secretary (Labour), Govt. of NCT of Delhi vide his order of reference dated 25th April, 1989 made following reference to the Labour Court-IV, Karkardooma :-

''Whether the services of Shri Mohd. Shakil and Shri Prem Chand have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?''

2. On 22nd September, 1989, the workman filed his statement of claim to which the Management filed a written statement stating therein that the workman was engaged purely on daily/casual basis that too intermittently and keeping in view the exigencies of the work. He was never employed on permanent or temporary basis by the Management. It was specifically pleaded that the workman had not completed 240 days and as such was not entitled to the provisions of Industrial Disputes Act.

3. Parties led their evidence before the Labour Court by way of affidavits and finally the Labour Court vide its award dated 18.1.2002 held that termination of Mohd. Shakeel was illegal and unjustified and he was entitled to be reinstated with 50% backwages from the date of his illegal termination till reinstatement.

4. The learned counsel appearing for the petitioner while replying upon the judgment of the Supreme Court in the case of Tannery and Footwear Corporation of India Vs. Raj Kumar and Anr. , M/s. Essen Deinki Vs. Rajiv Kumar 2003 LLR 113 and Range Forest Officer Vs. S.T. Hadimani contended that the onus to prove that workman had worked for 240 days in the preceding 12 months period is upon the workman. While the workman had placed no evidence much less cogent evidence on record to discharge such onus therefore the findings recorded by the Labour Court in this regard are erroneous in law.

5. There cannot be any dispute to the legal proposition stated on behalf of the petitioner before the Court. It is a settled principle that one who claims must plead and discharge at least basic onus for such entitlement and in accordance with law. Even in the case of Raj Kumar (Supra) their Lordships of Supreme Court noticed that the parties had failed to produce substantial evidence on record but the conclusion of the Labour Court based upon two documents that is letter of appointment and letter of termination was accepted by the Court in awarding reinstatement with 75% backwages to the workman.

6. In the present case there is no dispute to the fact that the respondent workman was working with the management of the petitioner. In order to show that he had actually worked for 240 days he had filed an affidavit as well as produced certain documents to show that he was actually working for a considerable time with the Management. Admittedly, the service of the workman has been terminated vide order dated 25th July, 1988. After appreciating the entire evidence led by the parties, the Labour Court held as under :-

''In the written submissions filed by management, it was claimed that both the workmen have not put in 240 days during the period of 12 calendar months before the termination of service. Regarding Mohd. Shakeel it was claimed that he worked only for 18 days in 1988 and 41 days in 1987. Unfortunately, for the management there are documents on record which are to a contrary effect. Mohd. Shakeel had filed large number of documents indicating various organizations to which he has been assigned during course of her service. Ex. WW1/2 is an non-employee identity card issued by M/s. Maruti Udyog Ltd. In the column of name of firm the name mentioned is of the Management as M/S Amco Batteries Ltd. In the column of name and designation name of Mohd. Shakeel charge-man has been mentioned. Initially, the identity card from 7.1.1987 to 31.7.1987 was issued, the said identity card on its reverse clearly shows that it was extended till 17.7.88 This would show that Mohd. Shakeel as representative of M/S Amco Batteries could visit M/S Maruti Udyog Ltd. as a non-employee from 7.1.1987 to 17.8.88. If we consider period of twelve months preceding the date of termination, he indeed had worked for more than 240 days with M/S Amco Batteries Ltd.''

7. In addition to the above findings the Labour Court also noticed that the petitioner being a limited company would be maintaining different records even for employment of its casual/daily workers. No record whatsoever was produced by the petitioner company to substantiate their plea that the workman was a daily rated person who was engaged wholly intermittently and not over a continuous period of time. Every party to the proceedings is under obligation to produce best evidence in their power and possssion which has bearing on the matter. Such evidence would include the records which a company is required to maintain in its normal course of business. To some extent the view of the Court does not call for any interference in drawing adverse inference against the petitioner company Along with the counter affidavit filed by the workman before this Court. Number of documents have been annexed to show that the workman was issued that identity card and permission to visit Maruti Udyog Limited for different periods which was ultimately extended to 17.7.1988 while his service was terminated on 25th July, 1988. The documents dated 6th December, 1986 and other relating to 6th March, 1986 have been placed on record to show that the workman was visiting Escorts Limited and other concerns as representative of the petitioner company. Letter dated 31st March, 1987 written by Kailash Chander, Manager of the petitioner company to M/s. HMT Limited clearly shows that through that period also he was deputed to carry out rectification work on 28 damaged batteries. It is clear from the documents on record that the workman was working with the management of the petitioner company right from 1986. In fact, there is direct evidence at least from January, 1987 that he worked till the date of his termination, i.e., 25th July, 1988. It was to the counter affidavit filed by the workman rejoinder was filed by the management but no documents have been annexed to that rejoinder to show anything to the contrary. In face of this evidence I have no hesitation in coming to the conclusion that the findings recorded by the Labour Court as aforenoticed call for any interference by this Court.

8. In the case of Rattan Singh Vs. U.O.I. the Supreme Court has held that the provisions of Section 25-F of the Industrial Disputes Act would be applicable to termination of even a daily rated workman who had continuously served for the requisite statutory minimum period for a year. It has already been held that the workman had worked for 240 days in the 12 months immediately preceding his alleged illegal termination. Thus, the dismissal of the workman from service, except by way of punishment and after holding inquiry in accordance with law, would be retrenchment without compliance with the provisions of Section 25-F of the Industrial Disputes Act.

9. For the reasons aforestated I find no merit in this petition, the same is dismissed while leaving the parties to bear their own costs.