Air Force Senior Secondary School v. GNCT of Delhi & Ors.

1. 706012010 Karan Singh 2004

2. 7061120t0 Vicky Singh 0r.06.1997.| 706212010 Ranjit Kumar 02.06.2003

4. 706312010 Shatrughan 2004

5. 706412010 Deepak 2005

6. 706512010 Alun Kumar t[3].04.2002

7. 7066/2010 Jaivinder Pal 01.06.1997

8. 706712010 Banwari I.al 1997

9. 706812010 Rarn Bunty 1998

10. 706912010 Dharmendra 2006

11. 707012010 Surender - I 1999

12. 707r12010 Prarnod I(umar 01.11.2006

13. 707212010 Nand Kishore 23.02.2006 Page[7] of2l 2013:DHC:6829 a work from 6.00 a.m. to 4.00 p.ffi., they were not being paid all dues payable as per law and they were not being paid overtime, leave encashment, wages ' as per the Minirnurn Wages Act etc. They u,r"rr"d that they preferred their claims before the minimum wages authority which annoyed the Management, and consequently, the Management retrenched the workmen from 15.03.2008. They raised their demands but to no avail. Consequently, they prefered their claim petitions before the Labour Court, which are sirnilar. The petitioner filed its written statement in each of these clairn petitions. The cornmon aase of the petitioner was that the workmen had been engaged only on the post of part time daily wagel's. They were wor-king in the school transport at 1412, Air Force Station and they were being paid daily wages from tirne to time. It was denied that the workmen were drawing a monthly salary. The wolking hours claimed by the workmen were also denied. It was stated that the workmen were required to work for not more than two.hours in the morning, and two hours in the evening.. It was stated that the workmen had been engaged to pick up children from different places in the morning and to bring thern to school and for this pulpose, the worlcmen were required to repoft for duty at 6.00 a'm' as the classes stafi from 8.00 a.m. and after bringing the children, the workmen were free for the entire day and they had to perform their duties only after the classes were over as they had to drop the children back to their homes. It was stated that the wolkmen used to sit idle for tnost part of the day and payment was being made to the wot{<men in accordance with the nature of their duties. The right to clairn wages under the Minirnum'Wages Act was ! Page 8 of21 2013:DHC:6829,I @ denied on the ground that the workmen had not been engaged in any scheduled employment. It was also claimed that the workrnen had worked on daily wage basis and they absented themselves fiom duty without information to the Management. consequently, the Management had no option but to anange for other persons to work in place of the respondents, as the school going children were travelling in the bus regularly and persons wete required to look after thern. It was denied that the petitioner- Management had asked the workmen not to repott for duty. The respondents-workmen filed their respective affidavits by way of evidence towards examination-in-chief wherein they primarily reiterated the avennents made in their respective statements of claim. The workrnen were cross-examined by the Management. The Management also led its evidence' towards examination-in-chief on affrdavit and the Managetnent also reiterated its case as set out in their written statement. During crossexamination of the Management's witness MWl P.K.Pashupalak, Warrant Officer, Incharge School; Air Force Station, OWC, Race Course, New Delhi, he admitted that the workmen were working as part time daily wagers. He also adrnitted that the school keeps workmen on part time daily wages from local area without issuing any appointment letter to them. He also admitted that the Management does not keep any record regarding attendance of part time daily wagers. He stated that the Management is not maintaining any register in regard to the daily wagers. He stated that the salary to the workmen was paid out of collection of funds fi'om the parents of school children under a separate head for keeping a conductor for the safetv of the children. He stated that the workrnen had left their job on their,a:f Page[9] of?l 2013:DHC:6829.rt own on 15.03.2008. He also admitted that the Management did not issue aly letter to the workmen to resume their duties and the reason given for the salne was that they were not regular employees. The Labour Court, after considering the evidence of the parties held the retrenchment of the respondent workmen to be illegal and, consequently, directed their reinstatement with 50Yo backwages' Learned Senior Counsel for the petitioner has made two submissions to attack the Award. The first submission of learned Senior Counsel for the petitioner is that to seek protection under Section 25-F of the Act it was irnperative for each of the worftrnen to plead and prove that they had worked for at least 240 days in the year preceding their tennination. Learned Senior Counsel submits that the respondents did not make any pleading to tfre aforesaid effect in their statements of claim. He submits that the onus to. prove that each of the workmen had worked for 240 days,ol'more in the year preceding their respective termination was on the workmen. He further submits that a mere self serving statement of the workmen to this effect is not sufficient as held by the courts in several decisions. He submits that in the present cases, the workrnen had not even made such an avenrlent - let alone led any evidence, to show that each of therr had served the rnanagement for 240 days in the year preceding their termination. He submits that, consequently, the respondents were not entitled to protection under Section 25-F. Even if it were to be assumed that the services of the respondents were terminated by the petitioner, the same cannot be labelled as illegal retrenchment in breach of Section 25-F of the Act. In support of thc aforesaid subrnission, learned Senior Counsel has placed reliance on Page 10 of21 t R.M.Yellatti Vs. Asstt. Executive Engineer (2006) 1 SCC 106 and Manager, R.B.I., Bongulore, vs. s. Msni and others AIR 2005 sc2179. The second subrnissiol of the learned senior counsel for the petitioner is that the appointment of each of the respondent workmen was not made in a regular tnanner against existing vacancies and by following the recruitment rules. He submits that the petitioner-school is governed by the provisions of Delhi School Education Act, 1972. The appointment of the respondents could not have been made in breach of the said Atl' Consequently, it cannot be said that they would enjoy the protection of Section 25-F of the Act. In support of this submission, he places reliance on Himarnltu l(umar Vidyarthi trncl others Vs. Stste of Bihor ancl others AIR 1997 SC 36s[7]. On the other hand, learned counsel for the respondent submits that the workrnen had made clear avennent in their respective statements of claim to thc cffcct that they had been wolking continuously till the date of their termination. The period for which each of the workmen had worked was about two years or more as would be evident from the aforesaid tabulation. Learncd counsel subrnits that the petitioner did not controvert the aforesaid position in their written statements. They did not claim that the "mploymeril of thc respondents was not on a continuous basis for the aforesaid period. On the contrary, the avennents of the petitioner in their written statements shows that the respondents were performing work of a perennial nature i.e. of picking up and dropping the school children on a daily and continuous basis. It is also pointed out that.u"it in the cross-examination of the wor.kmen, it was not put to them that they had not worked fot 240 days in Page Ll of?L 2013:DHC:6829:\/ a, the year preceding their termination, and no such staternent was made by the petitioners/management's witnesses in his examination-in-chief. Learned counsel for the respondents has also placed reliance on the discussion found in the impugned Award in this respect which reads as follows:- "In the present case the nxanqgelnent has not specifically stated in the written statement as to from which date the worlcrnan was working as daily wager. The managentent has vaguely denied salary of the wortnnin without rnentiontng the exact salary and nxoreover it has not specifically denied the date of appointment' Further in the written statement the ntanagement has not taken the plea that the workrnan has not worlced for more than 240 days with the management. Further no docutnents are pioduced by the nxanagement to prove the length of service of. ^the worlcrnan. During the cross-exarnination, it is admttted by IVMI that they did not tssue any appointment letter to the worlqnan while keeping thent on part-tinte duty as daily wager nor they.keep any record regarding attendance of part-time daily wager. It,s stated that the ntanagement ls not ntaintainiig ory register with regard to the daily wager. It is further stated that without seeing the recorQ he cannot tell as to what was the salary of the workman. In the absence of this, the ', statentent of the worlcntan,s talcen aS correct that he was workingwith the ntanagement since 2004'" I{aving heard learned counsel fo[1] the pafties, perused the impugned Award and considered the respective submissions in the light of the decisions relied upon by the parties, I arn of the view that there is no merit in these petitions and the impugned Awards do not call. for any interference by this Court in the exercise of its writ jurisdiction. The primary submission of IW-. Sharma, learned Senior Counsel for the petitioner is that the respondentworkmen had not specifically averred that they had worked for 240 days or Page12 of21 more in the year preceding their termination. This submission is absolutely mcritlcss. In their respective statements of claim, the workmen had clearly averred with regard to the date of their engagetnent and date of retrenchment. As would be seen from the aforesaid tabulation, the said dates are separated by about two years or more. They hbd averyed that they had been working since their appointment as conductors/helpers on a monthly salary. They had also averred that they had been wolking between 6'00 a'm' to 4.00 p.m. and sometimes oveftime also.. They had also disclosed the nature of their duties which were, inter alia, to pick up and drop off school children. Let.alone the pleading of having worked for 240 days or more in the year preceding their termination, they had claimed that they have been continuously wor.king for years together as disclosed in their statements of claim and noted hereinabove. In contrast, the petitioner in their wriffen statements did not deny the said averments of the workmen. The primary defence of the petitioner was that the respondents were engaged only on part time basis on daily wages. Their averment was that they had to work for two hours.in the morning fi'om 6.00 a.m. on wards and for two hours in the afternoon. It was their own case that the workmen used to sit idle in the interregnum. The petitioner also disclosed that the nature of work was to pick up and drop off school children everyday-thereby clearly admitting the perennial and continuous nature of the work on daily basis' In fact the petitioner pleaded that due to the respondents not reporting for work' they had to engage others to carry out the said duties because of the continuous and perennial nature of the job. Not having raised any plea'to dispute the respondent's workmen claim of continuous se1ice for the periods indicated hereinabove, the issue that the worlanen had worked for periods less than Page 13 of21 240 days in the year preceding their termination did not even arise for consideration by the Labour Court. No doubt, if such an issue were to be raised, the onus to prove the same would have fallen upon the workmen' However, if no dispute or issue arises on the basis of the pleadings' there is no question of the issue being frarned or the onus being cast upon the wor.kmen. In R.M.Yeltatti (supra), the workman had established that he had worked for more than240 days by calling upon the employer to produce the relevant record which had not been produced. The High court held against.the workmen by holding that the workmen had failed to establish that he had worked for 240 days in the year preceding his termination' The Supreme Court upset the said decision on the ground that the Management had been called upon to produce its records which the Management had failed to produce. Consequently, an adverse inference has been drawn against the Management. In para 17 of the said decision, the Supreme Court held as follows:-

17. Analysing the above decisions of this Court, it is clear that. the provisiois of the Evidence Act in terms do not apply to the proleedings under Section l0 of the Industrial Disputes Act' However, applying general principles and on reading the dorestateaiiagrtinti, we qia tnat this^Court has repeat€dly iakun the view-that the burden of proof is on the claitttant to show that hd had worked for 240 days in a given year' This burden is discharged only upon the worlqnan stepping in the witness box. fhi; burden is dtscharged upon the worlcrnan adducing cogent evidence, both oral and documentary' In cases of termination of services of daily-waged earners, there will be. no letter of appointment oi termination. There will also be no receipt or"proo| of payment. Thus in rnost cases, the worlcrnan (the clahrant)",in' only call upon the employer to produce before the coiurt the nominal ntister roII for the gtven period, t. Page t[4] of?l ! tlce letter of appointment or termination, if any, the wage register, the iti"ndonce register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of "Lch case. The abo,ve decisions however make it clear that mere ffidavits or self-serving statentents made by the claimant ' iorlqnan will not sffiie in the tnatter of discharge of the burden placed by lai on the worlqnan to prove that he had worlced-for 240 days in a given year. The above iudgments further iay down that mere non-production of muster rolls per i se withoit any plea of suppression by the claimant worlwnan will not be the- ground for the Tribunal to draw an adverse inference against the management. Lastly, the abo,ve judgments liy down tie basic princtpli, namely, that the gtS\Court under Aittctu 226 of thb Constitution will not interfere with the concurrent findings offact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case. The Supreme couft observed in the aforesaid paragraph that it had repeatedly been held that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. The question of "burden of proof' wouli arise only in respect of a fact which is in dispute and which is not admitted. In the present case, the petitioner did not dispute the respondent's claim that they had been working continuously from the dates of their appointment till the date of their termination' Consequently' there was no question of the burden of proof falling upon the workmen to establish that they had worked for the said period continuously' It is also pertinent to note that the managements witness had stated in his cross examination that the petitioner did not maintain any record of employment of the respondents - neither their appointment letters nor attendance record' ll I Page 15 of21 '1' In these circumstances there was no qccasion for the respondents to require the petitioner to produce the said record. The fact that the respondents did not require the petitioner to produce the said record, therefore, cannot be considered as their "failure" to establish their period of engagement. The decision in S.Murti srtd others (supra) relied upon by the petitiondr is also of no avail. This case concerns Ticca Mazdoors. The Supreme Court in the opening paragraphs itself noticed the peculiarity of such appointment by observing, "Ticca mazdoors are internittently appointed by Reserve Bank of Indiawhenever absence of regular Class IV enryloyees talces place. They are not engaged every day or continuously. Their engagentent depends upon the need of the appellant. They'are neyer regarded as regular nmzdoors. Two waiting lists are nmintained by the appellant. The first waiting list contains the names, of such of them who nmy be appointed as regular mazdoors whereas the second list is ntaintained for those 'who are to be engaged as ticca nmzdoors. The nailres of the respondents figured in the second list., They were appointed in the said categoty as ticca mazdoors between the period 14-3-1g80 and B-B-ISA).............- I rnay also note that this was a case where the workmen had been proceeded"in criminai courts on the charge of having produced forged and fabricated certificates to 'seek employment. Though, they had been acquitted by the criminal court, the Supreme Court rejected the contention of the workmen that they had not produced forged and fabricated certificates, or that the same had been fabricated at the instance of some officers of the Reserve Bank of India. While doing so, the Supreme Court referred to several decisions wherein the said Court had earlier commented on the standard of proof required in a domestic enquiry vis a vis a criminal trial. For these reasons, the decision in ! Page 16 of2l S.Mani 6upra) cannot have a universal application and would not apply to cases like the present, aS in the present cases the respondents were, undisputedly, not ticca mazdoors. For a workmen to become entitled to protection under Section 25-F of the Act, all that is required is to show that the workman has worked in the industry continuously for not less.than one year under the employer. The definition of the expression, "continuous service" is contained in Section 25- B of the Act which states that a workmen shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which rnay be interrupted on account of the sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. Where a workman is not in continuous service within the meaning of clause (1) of Section 25-B for a period of one year or six. months, he shall be deemed to be in continuous service under an employer for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than, inter aIia,. 240 days. In the present case, as aforesaid, the petitioner pleaded continuous eng'agement running into a couple of years and even more as per the tabulation aforesaid. Therefore. the workrnen were able to show that they had worked for more than 240 days and this was not even disputed by the petitioner. So far as the second subrnission of learned counsel for the petitioner is concerned, I may only observe that the Act does not make a distinction PagelT of2l t abetween the workmen on the basis of the nature of their whether it is made on regular basis, on temporaty, ad hoc wager. appointment i.e. basis or, as daily Reference may be made to the Division Bench judgment of the Madras High Court in The President, Srirongam Cooperative Urban Bank Ltd. vs. the The Presidirtg Officer, Lsbour Court, Madurui & Anr.,1996 II LLI 216. The Division Bench held that Section 25 does not make a distinction whether the appbintment has been made in accordance with law or not. The factum of ernployment is what is relevant and not the legality or otherwise of it. In P.D. Jat vs. Alwar Sshaleari Bhund Vilcas Bonk Ltd. and Ors., 1991 II LLJ 130, a Division Bench of the Rajasthan Fligh Court considered the case of termination of serices of the workmen on the ground that the appointment was inegular. The retrenchment was not in accordance with Section 25-F of the Act. The Rajasthan High Court held that Section 25-F was attracted. Similarly, the Division Bench of the Madhya Pradesh High Court in Rajesh Kunnr and Ors. vs. Stste of M.P. and brs:, lgg4II LLJ 320 also held that though the termination of the services of workmen has taken place on the ground that the appointrnent was invalid, the provisions of Section 25-F have still to be complied with. It was held that an invalid appointment was not one of the exceptions found in Section 2(oo) of the Act and that any retrenchment not falling.under any one of the exceptions carved out within Section 2(oo) of the Act would amount to retrenchment and for such retrenchment conditions prescribed in Section 25- F of the Act are required to be cornplied with. Non-compliance of.the said conditions would render the termination illegal. Reference may also be made to the judgment of the Patna High Court in Mithileslt l(unmr Singh v. \ Page 18 of21 State of Bihar and Ors.,1995 I LLI 973. Pertinently, the petitioner has failed to point out any fact to suggest that the respondents/workmen were disqualified for appointment as bus conductors/helpers. It is not the petitioner's case that the petitioner had terminated the services of the respondents on account of their not possessing any particular qualification, or on account of their appointments being illegal. The petitioner's case was that the respondents had abandoned their services all of a sudden and without any reason with effect from 15.03.2008. This stand of the petitioner appears to be wholly unacceptable. It seems wholly improbable that all the 13 workrnen would, in one go, abandon their services for no rhyme or reason particularly, when it is not easy to find alternate employment. Reliance placed on the decision of the Supreme Court in Himauhu I{umsr Vidyorthi (supra) is of no avail. In that decision, the Supreme Court was primarily of the view that the employer could not be classified as an industry. The decision in Himonsltu Iftunsr Vidyorthi (supra) has received due consideration in Management of Horticulture Department of Delli Adntinistratiort vs. Trilolc Chand & Anr., 82 (Iggg) DLT 747. This Court dealt with the decision in Himanshu l{untar Vidyarthi (supra) in the following rnanner:- "22............However, e close lookwould show that the case was nminly decided on the ground that the concerned department nantely, Cooperative Training Institute, Deogarh was not to be treated as "industry" within the meaning of Section 2(il of the Act and further in this case Suprenrc Court. did not talce into consideration the earlier case decided by it holding to the contrary and as noticed above. Not only this even - ! Page 19 of21 ( in the follotvirtg subsequent iudgnents, Suprente Court has taken the view that provision of Section 25-F wottld be applicable even in a case of daily ra.ted workntan. These cqses ' are:

I. Rattan Singh v^t.

2. Municipal Corporation of Delhi vs. Praveen Kuntar Jain, reported in (1998) 9 SCC 468. ' 3. Santishta Dubey vs. Etawah reported in 1999 LLR 460 (SC).