Delhi District Court
Sh. Basgit vs Pioneer Steel Furniture on 3 January, 2025
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LIR No. 2437/2016 (Old ID no. 194/2013)
CNR No. DLCT13-001137-2013
In the matter of:
Sh. Basgit
S/o Sh. Raj Dev,
R/o WZ-213, Shakurpur Village, Delhi
Through:
Rashtriya General Mazdoor Union (Regd.),
B-239, Karampura, New Delhi.
.....Workman
VERSUS
M/s Pioneer Steel Furniture
126-B, Nangloi Extension, 1B, Delhi-110041.
Also at.: Sanjeev Kumar & Anis Kumar,
H-100, Quarter CPWD, Moti Bagh, Delhi
Fresh address: H-99, Quarter CPWD,
Moti Bagh, New Delhi
........Management
(Details in compliance of the directions of the Hon'ble High
Court of Delhi in Director General of Works (CPWD) Vs. Laljeet
Yadav & Ors. (W.P. (C) No. 2540/2021 decided on 16.07.2021
have not been furnished by the parties)
Date of Receipt of Reference : 13.09.2013
Date of Final Arguments : 12.12.2024
Date of Award : 03.01.2025
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POOJA AGGARWAL
AGGARWAL Date:
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AWARD
1. A reference was received from the Deputy Labour
Commissioner (West District), Labour Department,
Government of NCT of Delhi vide its order No.
F-3/(198)/13/Ref./WD/LAB/1176 dated 26.08.2013, under
Section 10(1)(c) and 12(5) of the Industrial Disputes Act,
1947 regarding an industrial dispute between Sh. Basjit
(hereinafter referred to as 'workman') and the management
of M/s Pioneer Steel Furniture (hereinafter referred to as
'management') with the following terms of reference:
"Whether the services of workman Sh. Basgit has
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. After receipt of reference, notice was issued to the
workman who filed his statement of claim and written
statement was also filed by Sh Anish Kumar, denying
himself to be proprietor or partner of the management.
3. Amended statement of claim filed by the workman on
02.12.2014, was taken on record after his application for
amendment was allowed by the Ld. Predecessor vide order
dated 18.02.2015.
Facts as per the amended Statement of Claim
4. In brief, the workman has asserted that he was working
with the management as a Mistry since April 1989 with his
last drawn salary being ₹6,000/- per month without any
Digitally
signed by
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complaints and with unblemished record. It has been
further asserted that management is/was running by Sh.
Sanjeev Kumar and Sh. Anish Kumar, who are real
brothers, in partnership at the addresses above.
5. It has also been asserted that the workman used to demand
legal facilities i.e. appointment letter, attendance card,
leave encashment, leave book, ESI, PF, overtime etc. but
the management did not provide the same.
6. It has also been stated that the workman had filed an
application before the Assistant Labour Commissioner
upon which a Labour Inspector had visited the
management, but the management did not appear before
him despite being summoned to appear with complete
record.
7. It has also been stated that the management got annoyed
and illegally terminated the services of the workman on
04.01.2009 without any reason, without paying the earned
wages for November-December 2008, without paying dues
and without giving any prior notice notice in violation of
Section 25F and 25G of the Industrial Disputes Act, 1947.
8. It has also been asserted that the management neither
reinstated the workman nor paid his outstanding dues
despite his complaint to Labour Inspector, Karampura and
filing of statement of claim before the Assistant Labour
Commissioner. It has also been stated that the management
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POOJA
POOJA AGGARWAL
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did not take him back on duty despite his repeated visits to
the management after his illegal termination.
9. It has also been stated that the workman is unemployed
since his services were illegally terminated as he has not
succeeded in finding any job despite best efforts. Hence
the present claim seeking reinstatement with full back
wages and all consequential benefits.
Facts as per the written statement/reply
10.In its written statement/reply to the amended statement of
claim, the management raised preliminary objection
asserting that the management had closed its establishment
w.e.f. 31.12.2008. On merits, it has been asserted that the
workman was working with the management for only one
year as a helper with his last drawn salary being ₹3,683/-
per month. It has also been asserted that the management
was a sole proprietorship of Sh. Sanjiv Kumar and since
the management had only 5-6 employees, it did not fall
within the ambit of EPF Act, ESIC Act and Bonus Act. All
other averments made in the statement of claim have been
denied.
Facts as per rejoinder to written statement/reply
11.In his rejoinder, the workman denied all the averments
made in the written statement/reply and reiterated the
contents of his amended statement of claim. He also stated
that management was still functioning at the same address.
Digitally
signed by
POOJA
LIR No. 2437/2016 (Old ID no. 194/2013) POOJA AGGARWAL
Basgit vs. M/s Pioneer Steel Furniture AGGARWAL Date: Page No. 4 of 11
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Issues
12.The following issues were framed by the Ld. Predecessor
vide order dated 21.07.2017
1) In terms of reference.
2) Whether the management has finally closed its
establishment since 31.12.2008, if so, to what
effect? OPM
3) Relief.
Workman Evidence
13.To prove his case, the workman examined himself as
WW1 and tendered his evidence by way of affidavit i.e.
Ex.WW-1/A. He also relied upon copy of statement of
claim filed before Assistant Labour Commissioner,
Karampura i.e. Ex WW1/1. He was duly cross-examined
on behalf of the management.
14.The workman also examined WW2 Sh. Vinod Kumar, JJA,
Record Room (Labour), Karkardooma Court who being a
summoned witness produced the summoned record i.e.
case file of LCA no. 05/2009 titled Basgit vs. M/s Pioneer
Steel Furniture decided on 04.05.2012 including written
statement therein i.e. Ex. WW2/1 and award i.e. Ex.
WW2/2. He was not cross-examined on behalf of the
management despite opportunity.
15.The management was proceeded ex-parte vide order dated
29.08.2023 by the Ld. Predecessor. Thereafter, the
application of the management to set aside order dated
29.08.2023 was allowed vide order dated 24.01.2024.
LIR No. 2437/2016 (Old ID no. 194/2013) Digitally
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16.Thereafter, the workman evidence was closed vide order
dated 25.04.2024 and despite opportunities, the
management did not lead any evidence and management
evidence was closed vide order dated 02.12.2024.
17.Final arguments were then advanced by the Ld. Authorized
Representative of the workman only since none appeared
on behalf of the management to advance the same.
18.The final arguments as advanced by the workman have
been carefully considered along with the evidence on
record and after careful consideration of the same, the
issue wise findings are as under:
Issue no. 1) In terms of reference.
And
Issue no. 2) Whether the management has finally
closed its establishment since 31.12.2008, if so, to
what effect? OPM
19.Both these issues are taken up together as they involve
inter connected facts.
20.In respect of issue no. 1, it is noted that the reference in the
present case is in respect of the illegality and/or un-
justifiability of the termination of services of workman Sh.
Basgit, by the management. It is a settled proposition of
law that a plea is to be proved by the party who has set up
the same. (Ref: the judgment of the Hon’ble Delhi High
Court in Automobile Association of Upper India v. P.O.
Labour Court II, 2006 SCC OnLine Del 456). Hence, it
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was for the workman to prove not only the factum of
termination of his services by the management, but also
the illegality and/or un-justifiability thereof.
21.The onus to prove the issue no.2 was on the management
and hence it was for the management to prove that it has
finally closed its establishment since 31.12.2008 and its
effect.
22.At the very outset, it is noted that the existence of
employer-employee between the parties is not in dispute,
even though the duration of such relationship remains in
dispute as the workman has testified in Ex.WW1/A that he
was an employee of the management since April 1989
whereas the management has accepted in its written
statement that such relationship existed only for one year.
23.The workman has failed to lead any evidence except self
serving oral testimony to prove that he was an employee
of the management since April 1989 as he has not filed
even a single document to show that he was working with
the management since April 1989. There is also no
admission by the management as to the workman being its
employee since April 1989 in its pleadings. Hence, the
factum of the workman being an employee of the
management since April 1989 remains unproved.
24.Be that as it may, it is duly noted that in respect of issue
no. 1, the workman has testified in his evidence affidavit
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POOJA
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i.e. Ex WW1/A that his services had been terminated by
the management on 04.01.2009. He has relied only upon
his self serving oral testimony to prove the factum of his
termination of services by the management on 04.01.2009.
25.However, the workman has himself admitted in his cross-
examination that the management establishment had been
closed on 31.12.2008. This admission of the workman
renders his claim as well as oral testimony as to the
management having terminated his services on 04.01.2009
as improbable as the workman has failed to bring on
record any evidence to explain as to what was the occasion
for him to have continued working with the management
till 04.01.2009 if the establishment had already closed on
31.12.2008 i.e. 4 days prior nor he has led any evidence to
elucidate the circumstances in which his services were
terminated including as to by whom they were so
terminated or even the manner thereof.
26.Thus, the sole self serving oral testimony of the workman
does not inspire confidence and on the basis of the
evidence as led, it is held that the claim of the workman as
to his services having been terminated on 04.01.2009 by
the management is improbable on a scale of preponderance
of probabilities and the very factum of termination of his
services by the management on 04.01.2009 has remained
unproved.
27.Since the very factum of termination of services of the
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workman on 04.01.2009 has remained unproved, the
question of any such termination being illegal and/or
unjustifiable does not arise.
28.Issue no.1 is accordingly decided against the workman and
in favour of the management.
29.In respect of the issue no.2, it is duly noted that the
management has failed to lead any evidence. Though the
workman has admitted in his cross-examination that the
establishment had closed on 31.12.2008, there is no
admission by the workman as to such closure being final.
Since, for reasons best known to the management, they did
not lead any evidence to discharge the onus cast upon
them, it is held that the management has failed to discharge
the onus cast upon them in respect of issue no.2 and issue
no. 2 is accordingly decided against the management and
in favour of the workman.
30.At this stage, it is also noted that the evidence as led in this
case has also failed to disclose existence of an industrial
dispute within the meaning of Section 2(k) Industrial
Disputes Act as a dispute or difference between the
management and the workman can arise only if some
assertion has been made by one party and denied by
another or some demand has been raised by one party
which was denied by the other, but in the present case, the
workman has failed to even aver let alone prove the factum
of any demand notice having issued by him to the
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management asserting illegal termination and seeking
reinstatement.
31.The absence of issuance of any demand letter by the
workman to the management asserting illegal termination
and seeking reinstatement prior to institution indicates that
the management had no occasion to deny such assertion or
refuse the demand of the workman, in the absence
whereof, no industrial dispute could be said to have arisen.
32.In Fedders Lloyd Corporation Pvt. Ltd. vs Lt. Governor,
Delhi And Ors., (AIR 1970 Del 60), it has been held by
Hon’ble Delhi High Court that –
“We are of the view that the decision of Supreme Court in
AIR 1968 SC 529 referred to above has finally
established the proposition that a demand by the
workman must be raised first on the Management and
rejected by them before industrial dispute can be said to
arise and exist and that the making of such a demand to
the Conciliation Officer and its communication by him to
the Management, who reject the same is not sufficient to
constitute an industrial dispute”.
(Emphasis supplied)
33.In the present case, as no demand notice issued by the
workman to the management prior to conciliation
proceedings has been brought on record, no industrial
dispute can be said to have come into existence prior to
filing of the present claim.
34.Thus, in view of the legal proposition laid down by the
Hon’ble Delhi High Court in Fedderslloyd’s case (supra),
the present claim is not maintainable.
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POOJA
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35.The reference is answered as under:
“The claim of the workman Basgit S/o Sh. Raj Dev is
not maintainable, and he has failed to prove that his
services have been terminated illegally and/or
unjustifiably by the management. Hence, he is not
entitled to any relief and no directions are necessary in
this regard.”
36.Copy of Award be uploaded on the website of RADC and
another copy be sent to the concerned department through
proper channels as per rules.
37.File be consigned to record room after necessary
compliance. Digitally
signed by
Announced in the Open Court POOJA
POOJA
AGGARWAL
AGGARWAL Date:
today i.e. 03rd January, 2025 2025.01.03
17:02:56
+0530(POOJA AGGARWAL)
Presiding Officer Labour Court -01
Rouse Avenue District Court Complex
New Delhi (sa)LIR No. 2437/2016 (Old ID no. 194/2013)
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