Delhi College Of Engineering vs Dinesh Kumar
2006 Latest Caselaw 1685 Del

JUDGMENT

S. Muralidhar, J.

1. This letters patent appeal is directed against the order dated 19.8.2004 passed by the learned Single Judge dismissing the appellant's Writ Petition (Civil) No. 12490 of 2004. By the impugned order the learned Single Judge upheld the award dated 19.7.2003 passed by the Industrial Tribunal (`Tribunal'), holding the termination of the services of the respondent No. 1 by the appellant management to be illegal and directing the reinstatement of the respondent with continuity in service and full back wages.

Background Facts:

2. The facts leading to the filing of the present appeal are that the respondent No. 1 joined the employment of the appellant with effect from 1.5.1993 as a waterman. With effect from 1.11.1993, he began working as peon. The services of the respondent No. 1 were terminated with effect from 2.4.1994. The question whether the termination was illegal was referred to the dispute to the Tribunal for adjudication.

3. In the statement of claim filed on 15.3.2002 before the Tribunal the respondent No. 1 stated that he had completed more than 240 days in each calender month and was deemed to have been in regular employment. He further contended that a number of juniors had been retained in service and that accordingly the termination of his services was violative of Section 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (`Act'). In para 5 he stated that a demand notice was served upon the appellant on 13.12.2000 whereas his services were terminated on 2.4.1994. No reasons for the delay in making the claim were given.

4. In the written statement filed before the Tribunal, the appellant denied that the respondent No. 1 had been given any regular employment. It was contended that there was no relationship of master and servant between the appellant and the respondent No. 1. The contentions of the respondent No. 1 were denied as being vague and fictitious.

5. Affidavits of evidence were filed by the Respondent No. 1 and the appellant. The Respondent No. 1 examined himself as a witness and on behalf of the management Dr. Kameshwar Singh was examined as MW-1.

6. The witness of the management admitted certain documents produced by the workman and stated that as per the said documents the respondent No. 1 had worked from 1.5.1993 to March 1994. Accordingly, the Tribunal held that by this piece of statement of MW1 it stands admitted that the workman has worked from 01-5-1993 to March 1994 and thus he completed the service of more than 240 days. In the impugned order dated 19.8.2004, the learned Single Judge of this Court also found that there was no cross-examination of the respondent in respect his claim that he had worked continuously from 1st May, 1993 to 2nd April, 1994. Further the learned Single Judge had held that there is nothing on record to suggest that the services of the respondent-workman were terminated in compliance with the provisions of Section 25F, 25G and 25H of the Industrial Disputes Act, 1947.

Submissions of the Counsel:

7. Ms. Avnish Ahlawat, the learned Counsel for the appellant submits that the claim of Respondent No. 1 was barred by laches, since on his own showing, the respondent No. 1 first issued a legal notice to the appellant only in the year 2000. She further submits that the records produced before the Tribunal do not go to show that the workman had worked for 240 days continuously and that therefore, the finding of the Tribunal on this aspect is perverse. On the other hand, Mr. Sanjoy Ghose, the learned Counsel for the respondent No. 1, relies on the statement of the witness for the management who in cross-examination had conceded that respondent No. 1 had worked continuously from 1.5.1993 to March 1994. It is submitted that with this, the workman had discharged the onus of showing that he worked for 240 days.

8. In the written submissions filed by the respondent No. 1 workman, it is sought to be contended on behalf of the workman that even between 1.5.1993 to 31.1.1994 there was a total number of 276 working days which includes holidays and that as per the decision of the Hon'ble Supreme Court, in Workman of American Express v. International Banking Corporation AIR 1986 SC 458, the respondent workman should be held to have completed more than 240 days. Reliance is also placed on the decision of the Hon'ble Supreme Court in R.M. Yellatti v. Assistant Executive Engineer 2005 IX AD (SC) 261 to contend that once the initial burden on the workman to prove that he had worked for 240 days in the calender year preceding termination was discharged by leading evidence, the onus would thereafter shift to the management to prove that the workman had not worked during the said period. As against this, it is contended in the written submissions filed by the appellant that when the respondent No. 1 workman was engaged as a waterman from 1.6.1993 to 31.10.1993 he had worked only for 107 days. From the documents produced by the workman it appeared that he had worked from 1.6.1993 to 31.1.1994 and the total working days was 173. In any event it is submitted that the workman has certainly not completed 240 continuous days of service.

Our findings:

9. We find considerable merit in the objection raised by the appellant that the claim by the workman was barred by laches. Nowhere in the claim statement, the workman offered any explanation for keeping quiet for over six years after the termination of his services and approaching the appellant with the claim only in the year 2000. In our view, this delay in seeking redress is fatal to the claim of the respondent.

10. Even on merits, it appears that the Respondent No. 1 failed to prove that he was working for 240 continuous days. The appellant has placed on record the documents and depositions which were before the Tribunal. The documents indicate that the respondent No. 1 was appointed as waterman on a temporary basis from 1.5.1993 and initially this was approved till 31.1.1994. There does not appear to be any approval for the continuation of the services of the Respondent No. 1 beyond the said date. The precise question put to the management witness during cross-examination, and the answer thereto reads as under:

Question Is it correct that Ex. WW1/3 to Ex. WW1/7clearly shows that the workman has worked from May, 1993 to March, 1994?

Answer As per the document mentioned above revealed that the workman has worked from 1.5.1993 to March, 1994. However, the documents are incomplete. Vol. documents revealed that he was engaged w.e.f. 1.5.1993. From the documents it is revealed that his approval for engagement was approved up to 31.1.1994.

Therefore the answer was not an unqualified one. It also appears that the documents were produced by the Respondent No. 1 and that management witness disclosed that the muster roll for the period 1.5.1993 to 2.4.1994 were not able to be located.

11. In the light of the above deposition, it is difficult to appreciate the finding of the Tribunal that the Respondent No. 1 had completed 240 continuous days of service when the documents themselves show the approval only till 31.1.1994. The Tribunal could not have relied on the statement of the witness that those documents showed that he had worked till March 1994.

12. We are unable to conclude, from the documents produced by the workman and the deposition of the witnesses, that the respondent No. 1 had completed 240 days of continuous service with the appellant. As already noticed hereinabove, the finding of the Tribunal that the workman had worked continuously till March 1994 is not based on the evidence on record. In the circumstances, we hold that the workman has failed to discharge the initial onus of showing that he had in fact worked for 240 continuous days and that in the absence of the workman discharging such an onus, the question of burden of proof shifting to the appellant does not arise.

13. The other contention of the respondent No. 1 is that even if the workman did not work for 240 days, his termination would still be illegal in terms of Section 25G of the Act since the respondent No. 1's juniors have been retained in service. We are afraid that we cannot entertain this plea at this stage, particularly when there is no finding on the said plea in any of the courts below.

14. In the view that we have taken that the respondent No. 1 has failed to discharge the burden of showing that he was employed for 240 continuous days, the question of payment of back wages does not arise.

Conclusion

15. We hold that the Tribunal erred in holding that the termination of the services of Respondent No. 1 was illegal and that he is entitled to be reinstated with continuity of service and back wages. We also hold that the learned Single Judge erred in affirming the said Award of the Tribunal.

16. For all of the above reasons, the Award dated 19.7.2003 passed by the Tribunal, in ID.No. 28/2002 and the impugned order dated 19.8.2004 passed by the learned Single Judge in Writ Petition (Civil) No. 12490 of 2004 are hereby set aside. Writ Petition (Civil) No. 12490/2004 is accordingly allowed.

17. We may clarify that if any amount has been paid to the Respondent No. 1 during the pendency of these proceedings, the same shall not be recovered.

18. At the time of admission of this appeal, the appellant was directed to deposit 25 per cent of the back wages and in consequence thereof the appellant had deposited a sum of Rs. 63,071/-. The registry is directed to release the said sum to the appellant within a period of four weeks from today and in any event not later than 27.10.2006.

19. With the above directions, the appeal is allowed with no order as to costs. Applications stand disposed of accordingly.