Shiv Narayan vs K.C.Electricals & Anr.
2011 Latest Caselaw 2145 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+             WRIT PETITION (CIVIL) NO.2278/2008

                                      Date of Decision: 21st April, 2011

       SHIV NARAYAN                                   ..... Petitioner
                 Through         Mr. Jai Bansal, Advocate

                      versus

       K.C. ELECTRICALS & ANR.               ..... Respondents

Through Mr. Anurag Lakhotia, Advocate for R-1.

CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1. Whether Reporters of local papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

SUDERSHAN KUMAR MISRA, J(Oral)

1. The petitioner has challenged the award of the

Labour Court dated 27th February, 2007 whereby his claim for

reinstatement along with continuity of services with full back wages

was rejected.

2. It is the case of the petitioner that he had joined

respondent no. 1 as a Helper in 1996 and his last drawn wages

were Rs. 1,937/- per month. He submits that he was neither given

an appointment letter, nor provided with legitimate facilities such as

weekly offs, leave with pay, medical/ESI facilities, etc. The

petitioner, thereafter, became a member of the Worker‟s Union so

that his interest may be protected and his grievances could be

taken up with the management for effective redressal. This act of

the petitioner allegedly incurred the displeasure of the management

of respondent no. 1 and, consequently, they did not pay him earned

wages for the month of June, 1999.

3. Counsel states that on 2nd July, 1999, the management

of respondent no.1 called the petitioner to their office, gave him a

beating and forcibly took his thumb impressions on blank papers

and vouchers, and thereafter removed him from service. Counsel

further contends that the petitioner tried to lodge a complaint with

the SHO, P.S. Dilshad Garden on the same day, i.e. 2nd July, 1999,

but because of the inaction on the part of the police officials, it

could not be registered on that day. The petitioner finally lodged the

complaint on 5th July, 1999. Moreover, he also made a complaint,

dated 4th July, 1999, to the Assistant Labour Commissioner

requesting for appropriate proceedings to reinstate him with full

back wages.

4. It is therefore the case of the petitioner that his

termination is arbitrary, illegal and in violation of section 25-F of the

Industrial Disputes Act, 1947 as he was neither served any notice

nor paid one month‟s wages in lieu of notice. Further, he was

neither issued a charge sheet nor any domestic enquiry was

initiated against him by the management.

5. Counsel for respondent no. 1, on the other hand,

contends that the petitioner was, in fact, employed as a Beldar on

11th November, 1998 on probation for six months. He further

submits that the petitioner had worked with respondent no. 1 till

22nd February, 1999 and thereafter remained unauthorizedly

absent from 24th February, 1999 (23rd February, 1999 being a

weekly off). On 1st July, 1999, the petitioner came and submitted

his resignation letter, which was duly accepted by the management

of respondent no. 1. Thereafter, he came again on 2nd July, 1999

and took full and final settlement of all his accounts, including his

salary for the month of February, 1999. Counsel further submits

that since the petitioner was only on probation and did not complete

240 days of continuous service with the respondent no. 1, there can

be no question of illegal termination.

6. The Tribunal observed that in his cross examination

the petitioner had himself admitted that the thumb impressions on

the appointment letter dated 11th November, 1998 and the

resignation letter dated 2nd July, 1999 was his. However, he

alleged that the management had forcibly obtained his

signatures/thumb impressions on blank papers and vouchers, which

were converted to appointment and termination letters etc., and

later misused by the management. The Tribunal held that this plea

of the petitioner cannot be believed as the appointment letter is a

printed document whereas the petitioner had alleged that his

signatures/ thumb impressions were forcibly taken on blank papers.

The Tribunal further held that the petitioner‟s statement that he was

not given a copy of the letter of appointment also cannot be

believed as it is specifically mentioned in the said letter of

appointment that he had received a copy of it. The Tribunal also

pointed out that although the alleged incident had occurred on 2nd

July, 1999, the petitioner had raised the plea that his signatures/

thumb impressions were forcibly taken on blank papers and

vouchers for the first time on 27th September, 1999 in his rejoinder

to the reply filed by the management in response to his demand

notice.

7. In this connection, the Tribunal referred to a decision by

the Hon‟ble Bombay High Court in Laffans India Pvt. Ltd. v.

Pancham Singh Rawat & Anr. 2003 LLR 147 wherein it was

held that the resignation of a workman will be considered to be

voluntary when he does not raise any alarm or protest even after

four months of its acceptance. Applying the ratio of this case, the

Tribunal concluded that since the petitioner did not raise any alarm

or protest from 2nd July, 1999 to 27th September, 1999, it must be

presumed that the petitioner had voluntarily resigned vide

resignation letter dated 1st July, 1999 and the same was duly

accepted by the management on that very day.

8. The Tribunal further held that the onus was on the

petitioner to prove that he had worked with respondent no. 1 for

240 days and, since he failed to discharge this onus, therefore, he is

not entitled to the benefit of section 25-F of the Industrial Disputes

Act, 1947. It concluded that since the petitioner failed to prove that

his thumb impressions on the appointment letter were taken

forcibly, it must be concluded that the petitioner joined the services

of the respondent from 11th November, 1998 as mentioned therein.

Again, it was the petitioner‟s own case that he had worked with the

respondent till 2nd July, 1999. This means that he worked from

11th November, 1998 till 2nd July, 1999 i.e. for 234 days only. The

petitioner, thus, failed to discharge this burden. In view of the

above facts and circumstances, the Tribunal also concluded that the

petitioner‟s services were not terminated illegally and he had, in

fact, resigned.

9. The petitioner‟s grievance, therefore, is that his

signatures/thumb impression was forcibly obtained by the

respondent on blank papers on 2nd July, 1999, and on that day

itself, he was removed from service. On the other hand, it is the

case of respondent no. 1 that the petitioner voluntarily put his

thumb impressions on the documents while tendering his

resignation on 1.7.1999; that he was not removed from service

and, in fact, he had voluntarily tendered his resignation.

10. The petitioner states that he made a complaint to the

Assistant Labour Commissioner on 4th July, 1999 and on 5th July,

1999 he lodged a complaint with the Police Station Dilshad Garden

to that effect. It is the petitioner‟s own case that the complaint was

written on 3rd July, 1999 wherein he had mentioned the incidence

of beating and forcible signatures. Yet, on the very next day i.e. 4th

July, 1999, when a complaint was sent to the Assistant Labour

Commissioner, none of these incidents were mentioned therein.

Counsel states that this document, which is also Ex. WW1/2, was

admittedly written at the petitioner‟s behest and carries his thumb

impression, but the facts regarding the beating and having forcibly

obtained his thumb impressions, as mentioned in the complaint

drafted on 3rd July, 1999, were not mentioned here. Counsel for

the petitioner explains that the reason why it was not mentioned in

the complaint filed before the Assistant Labour Commissioner was

probably because he was afraid he might lose his job. He further

explains that normally these labourers, which come from U.P., Bihar

and other states, work with these companies either on contract

basis or daily basis. The labourers are, therefore, afraid of the

company people and this was probably the reason why the

petitioner approached the police directly.

11. I cannot accept this explanation of the petitioner that he

feared for his job. When the petitioner wrote the complaint to the

police on 3rd July, 1999 he mentioned these incidents of beating

and his signatures/thumb impressions being taken forcibly. This

means that he did not fear for his job then, but, on the very next

day i.e. 4th July, 1999, he started fearing for his job and did not

mention these incidents in the complaint he filed before the

Assistant Labour Commissioner. In any case, the petitioner cannot

give a fresh and unique explanation for the first time in a writ

proceeding with regard to the reasons why he left out these key

aspects in the complaint. The trial has already taken place, and if

there was some discrepancy, the onus was on the petitioner to

explain it. Even in the demand notice sent by the petitioner, dated

13th September, 1999, no such allegation has admittedly been

made. In fact, it is only in the rejoinder dated 27th September,

1999, filed in response to the management‟s reply to the demand

notice, that the petitioner raised this plea of beating and of the

thumb impressions being taken forcibly, for the first time.

12. Counsel for the petitioner also contends that the

writing on the resignation letter does not even amount to a

resignation. I do not agree. A perusal of this document shows that

the words "....jo bhi mera hisaab banta hain usse dilane ki kripa

kare" have been used. This is the usual expression used by an

employee to say that he intends to leave his job, therefore, all his

accounts may be settled. Furthermore, if this was a forged

document, as has been alleged by the petitioner, the management

would have put it down with greater precision. If the management

had indeed forcibly taken the petitioner‟s thumb impressions and

then written a resignation letter above that, surely they would have

written a proper resignation. I am, therefore, not impressed by the

argument that the words were added later on or that the words

used do not amount to a resignation letter. Furthermore, for all the

above reasons, the petitioner has also been unable to satisfy this

Court that his thumb impression was obtained on a blank

document.

13. Counsel for the petitioner, however, insists that the

petitioner had worked for 240 days and in support of this claim he

has referred to the statement of one Mr. Zakir Hussain, who was

produced by the petitioner before the Labour Court wherein he had

deposed that the petitioner had joined the service of the

management in June/ July, 1996. I do not find any force in this

because, although the Evidence Act does not apply specifically in

these matters, the general principles of the law of evidence and

trials certainly apply. Thus, if there has to be evidence of a fact

which exists, the evidence has to be direct. In its written

statement, respondent no. 1 has clearly stated that the petitioner

did not fulfill the basic requirement of having worked for 240 days

which would entitle him to protection under the Industrial Disputes

Act. The petitioner was, therefore, clearly put on notice that this is

one of the grounds on which the management seeks to defeat his

case. Having known that, it was open to the petitioner to either

bring some evidence on his own by way of examination in chief or

to seek the summoning of the relevant records from the

management. If the petitioner had sought, and obtained, an order

directing the management to produce the relevant records, and if

that was not produced despite such orders, then perhaps he could

have invited the Labour Court to draw an adverse inference against

the management to the effect that if the records were produced,

they would have proved his case. Since this was not done at the

trial before the Labour court, the writ court cannot find fault with

the proceedings of the Labour Court. If the petitioner raises a

proposition, which is based on certain facts, he has to make good

that proposition. It was for the petitioner to avail the opportunity

available before the Labour Court; and not having done so, he has

only himself to blame. Thus, clearly, the finding that the petitioner

has not worked for 240 days cannot be assailed. If he has not

worked for 240 days, the question of any termination of a

workman‟s service being unjustified or illegal, at least in terms of

the Industrial Disputes Act, does not arise.

14. Counsel for the petitioner has now raised another

argument which was admittedly not raised before the trial court.

He submits that the management has filed Form 6 under the

Employees Provident Fund Scheme 1952, being the annual

statement of contributions for the period 1st April, 1998 to March

1999. He states that the name of the petitioner has been indicated

in this document at serial no. 52. Since this aspect was not raised

before the Tribunal, I do not see how the petitioner can now be

permitted to raise it here, or to impugn the decision of the Labour

Court on this ground. Moreover, it is the management‟s own case

that the petitioner was employed on 11th November, 1998 and he

resigned on 2nd July, 1999. It is also the management‟s own case

that the petitioner had gone on unauthorized leave from 24th

February, 1999 to 2nd July, 1999. The petitioner, thus continued to

remain on their rolls till 1999. Since this annual statement of

contributions is from 1st April, 1998 to March 1999, it would

naturally have the petitioner‟s name in it as the date on which he

joined falls within this period and, till March, 1999, he was still on

the rolls of the management. He was removed from the rolls only in

July, 1999.

15. The petitioner, has failed to prove that he had worked with

respondent no. 1 for 240 days to claim the benefit of Section 25-F

of the Industrial Disputes Act, 1947. He also failed to produce any

evidence in support of his contention that his signatures/ thumb

impressions were forcibly taken on blank papers and vouchers and

that they were later misused by the management. I might also

notice that although before the Labour Court it was the case of the

petitioner that his „signatures‟ were forcibly taken, in the writ

petition he has changed the stand and now states that his „thumb

impressions' were taken forcibly.

16. For all the reasons stated above, I agree with the Labour

Court that there is no force in the argument that the signatures/

thumb impressions of the petitioner were taken forcibly. I do not

find any infirmity or perversity with the impugned award. The writ

petition is, therefore, dismissed.

SUDERSHAN KUMAR MISRA, J.

April 21, 2011