Full Judgment Text
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CASE NO.:
Appeal (civil) 1769 of 2008
PETITIONER:
Sita Ram & Ors
RESPONDENT:
Moti Lal Nehru Farmers Training Institute
DATE OF JUDGMENT: 05/03/2008
BENCH:
S.B. SINHA & V.S. SIRPURKAR
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO 1769 OF 2008
(Arising out of SLP (C) No. 20378 of 2005)
S.B. SINHA, J.
1. Leave granted.
2. Respondent is a research institute. It imparts training to farmers for
facilitating improved agricultural production. For imparting training, fees is
not charged from the trainees. The trainees are also provided free lodge and
boarding. Respondent carries out its function under a deed of trust. It is a
subsidiary to Indian Farmers Fertilizers Corporation. Its object is charitable.
However, it is stated that the respondent institute also undertaking Poultry
Farming, Pisciculture, Cow-Shelter, Dairy Farming, Plantation, Bee-keeping
work etc. These jobs are undertaken by way of various projects. Daily
wagers are appointed for the said purposes. The employment of daily
wagers is a needbased one.
3. Appellants herein and in particular, some of them, claimed to have
been working with the respondent institute for a long time. Their services
were not being taken from 28.12.1996. They raised an industrial dispute.
The State of U.P. in exercise of its power under the U.P. Industrial Disputes
Act, 1947 referred the dispute for adjudication before the Presiding Officer,
Labour Court, U.P. Allahabad.
4. Before the learned Labour Court, both parties adduced their respective
evidences. Some documents to show that the appellants have been working
for a long time were called for from the respondents. Respondent produced
only Attendance Register for December, 1996 and attendance sheet for the
year 1997. Appellants examined themselves before the Labour Court.
They brought on records various documents to show that even Provident
Fund used to be deducted from their salary. They produced provident fund
receipts for the years 1992-93 and 1994-95.
One Kamla Pati Dubey was examined on behalf of the respondent.
He joined the respondent institution in the year 1988. A statement was
made by him that the appellant had not worked for 240 days. He, however,
in the cross-examination admitted that Muster Roll (Exhibit E-3) bears the
signatures of gardener Sant Ram. He also admitted that bee farming used to
be undertaken by the respondents.
The Labour Court, having regard to the fact that the respondent
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despite having been called upon to produce relevant records failed/neglected
to do so, drew an adverse inference against it. It, furthermore, took into
consideration the oral as also the documentary evidence adduced on behalf
of the appellants to hold that they have worked for a period of more than 240
days. As the condition precedent for terminating the services of the
appellants, as envisaged under Section 6N of the U.P. Industrial Disputes
Act, 1947 had not been complied with, the said orders of termination of
services were held to be bad in law. Appellants, therefore, directed to be
reinstated with 25 per cent of the back wages by an Award dated 12.4.2002.
5. Respondent having aggrieved by and dissatisfied therewith filed a
Writ Petition before the Allahabad High Court. By reason of the impugned
judgment, the High Court set aside the award of the Labour Court inter alia
opining that the burden of proof had wrongly been placed on the respondent,
It was held;
"It has consistently now been held by the court that
the burden of proof is on the employee who claims
relief. In spite of having been granted opportunity
to discharge their burden of proof by secondary
evidence, it was not discharged by them. It is
admitted to the parties that the workmen were
daily wagers. It is the nature of appointment that
is of essence and not the mode of payment\005"
It was furthermore, observed that the Award was based on surmises
and conjectures.
6. Appellants, are, thus before us.
A limited notice, as to why the respondent should not be asked to pay
adequate compensation to the appellants, was issued by this Court.
7. Mr. R.R. Kumar, the learned counsel appearing on behalf of the
appellant would submit that the High Court committed a serious error
insofar as it failed to take into consideration that before the learned Labour
Court, appellants have discharged their initial burden and as the respondents
despite having been asked to produce the relevant records, failed to do so,
the onus of proof was rightly shifted to them. It was urged that the
provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 vis-‘-vis
Section 25F of the Industrial Disputes Act, are not in pari-materia inasmuch
as in the former case, it was not necessary to work for 240 days in 12
calendar months preceding the date of alleged termination.
The High Court, it was contended, could not and did not consider the
evidences adduced on behalf of the parties and wrongly exercised its
jurisdiction under Article 226 of the Constitution of India. It was pointed
out that the provident fund receipts being Exhibits W-1 to 24 had even not
been controverted by the respondents.
8. Mr. L.N. Rao, the learned senior counsel appearing on behalf of the
respondent Institute, on the other hand urged that the Labour Court had
wrongly placed the burden of proof on the respondent as the entire burden of
proof to establish that they had worked for more than 240 days in a year was
on the appellants and, thus, there was no requirement to produce the records.
In any event, it was submitted, the Labour Court having not drawn any
adverse inference against the respondent and having allowed the appellant to
lead secondary evidence, the judgment of the High Court cannot be faulted
with.
9. Indisputably, the services of the appellants were terminated as far
back on 28.12.1996. The reference was made in the year 1998. It
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furthermore appears from the evidence of EW-1 that the respondent had
stopped undertaking the job of bee farming.
10. Although a contention had been raised by the respondent that it is not
an "industry" within the meaning of Section 2(k) of the U.P. Industrial
Disputes Act, 1947, but the said point having been given up before the High
Court, we need not deal therewith.
11. The question as to whether the burden of proof was on the employer
or on the workman is no longer res-integra. It would be on the workman to
prove that he had worked for two hundred and forty days in a year.
However, where both parties have adduced evidences, in most of the cases,
the question would be academic.
In DGM Oil & Natural Gas Corporation Ltd. and Another Vs. Ilias
Abdulrehman [(2005) 2 SCC 183], it was held;
"8. A perusal of the evidence adduced by the
workman himself shows that he went in search of
employment to different places and whenever there
was a temporary employment available in different
departments of the appellant Corporation, be it
field work or the work in the Chemistry
Department, he accepted the employment and
worked in these departments not in one place alone
but at different places like Baroda and Mehsana. It
has come on record that the management did try to
accommodate the appellant in a permanent job but
could not do so because of lack of qualifications.
In such circumstances we think that the Industrial
Tribunal was justified in coming to the conclusion
that the number of days of work put in by the
respondent in broken periods, cannot be taken as a
continuous employment for the purpose of Section
25-F of the Act, as has been held by this Court in
the case of Indian Cable Co. Ltd. We are aware
that the judgment of this Court in Indian Cable Co.
Ltd. was rendered in the context of Section 25-G
of the Act, still we are of the opinion that the law
for the purpose of counting the days of work in
different departments controlled by an apex
corporation will be governed by the principles laid
down in the judgment of Indian Cable Co. Ltd.
and the Industrial Tribunal was justified in
dismissing the reference."
See also Range Forest Officer Vs. S.T. Hadimani [(2002) 3 SCC 25,
para 3), R.M. Yellatti Vs. Asstt. Executive Engineer [(2006) 1 SCC 106],
State of Maharashtra Vs. Dattatraya Digamber Birajdar [2007 10 SCALE
442, para 6], Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh [2007
11 SCALE 409, para 12]
12. Although at one point of time, the burden of proof used to be placed
on the employer, in view of a catena of recent decisions, it must be held that
the burden of proof is on the workman to show that he has completed 240
days in a year.
13. We are, however, not oblivious of the distinction between the
provisions of the Industrial Disputes Act, 1947 and U.P. Industrial Disputes
Act, 1947 inasmuch as whereas in the former, the workman has to prove that
he has worked for more than 240 days in the preceding 12 months of the
date of his termination, there is no such requirement in the case of latter.
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14. Appellants have brought on records atleast some documentary
evidences to show that they have been working at least for two years. Even
provident fund had been deducted from their wages. Each of the appellant
examined himself before the Labour Court. They had called for the requisite
documents. The documents produced before the Labour Court were wholly
irrelevant, as the services of the workman were terminated in December,
1996 itself. What was called for from them was the documents for the
period during which the appellants claimed to have been working with the
respondent.
15. It furthermore appears from the records that, the wages were being
paid in a wage-sheet and no pay slip used to be issued therefor. Appellants,
thus, were not expected to produce any pay slip. No exception therefore, can
be taken to the findings of the Labour Court.
16. It is evident that the respondents have withheld the best evidence.
The wage sheet, the provident fund records and other documents were in
their possession. They were statutorily required to maintain some
documents. It may be true that the learned Labour Court did not draw any
adverse inference expressly, but whether such an adverse inference has been
drawn or not must be considered upon reading the entire Award. The High
Court, in our opinion, has wrongly opined that the award suffers from an
error of law and was otherwise based on surmises and conjectures.
17. The question, which, however, falls for our consideration is as to
whether the Labour Court was justified in awarding re-instatement of the
appellants in service.
18. Keeping in view the period during which the services were rendered
by the respondent; the fact that the respondent had stopped its operation of
bee-farming, and the services of the appellants were terminated in
December, 1996, we are of the opinion that it is not a fit case where the
appellants could have been directed to be re-instated in service.
19. Indisputably, the Industrial Court, exercises a discretionary
jurisdiction, but such discretion is required to be exercised judiciously.
Relevant factors therefor, were required to be taken into consideration; the
nature of appointment, the period of appointment, the availability of the job
etc. should weigh with the court for determination of such an issue.
20. This Court in a large number of decisions opined that payment of
adequate amount of compensation in place of a direction to be re-instated in
service in cases of this nature would subserve the ends of justice. {See
Jaipur Development Authority Vs. Ramsahai and Anr. [(2006) 11 SCC
684], Madhya Pradesh Administration Vs. Tribhuban [2007 (5) SCALE
397] and Uttranchal Forest Development Corporation Vs. M.C. Joshi [2007
(3) SCALE 545]. }
21. Having regard to the facts and circumstances of this case, we are of
the opinion that payment of a sum of Rs. 1,00,000/- to each of the appellant,
would meet the ends of justice. This appeal is allowed to the
aforementioned extent. In the facts and circumstances of this case, there
shall be no order as to costs.