Full Judgment Text
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CASE NO.:
Appeal (civil) 3639 of 2006
PETITIONER:
Krishna Bhagya Jala Nigam Ltd.
RESPONDENT:
Mohammed Rafi
DATE OF JUDGMENT: 24/08/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 24529/2005)
ARIJIT PASAYAT, J
Leave granted.
Challenge in this appeal is to the judgment rendered by a
Division Bench of the Karnataka High Court, Bangalore allowing
the writ appeal filed by the respondent (hereinafter referred to as
the ’workman’) and restoring the Award made by the Labour
Court.
Background facts in a nutshell are as follows:
The workman had been working as a daily wage employee
with the Krishna Bhagya Jala Nigam Limited (for short the ’Jala
Nigam’) which, at the relevant point of time was executing the
Upper Krishna Project in the State of Karnataka. His services were
allegedly terminated which gave rise to an industrial dispute.
According to the claim made by the workman he served the Jala
Nigam from 29.10.1989 to 1.4.1996. He further claimed that his
services were terminated without complying with the provisions of
Section 25-F of the Industrial Disputes Act 1947 (for short the
Act). A reference under Section 10(1) (c) of the Act was made to the
Labour Court, Gulbarga. Several other employees had also
challenged the termination of their services and other references
had been made to the Labour Court and some of the employees
had also filed applications before it under sub-section (4-A) of
Section 10 of the Act. The reference made at the instance of the
workman was contested by the Jala Nigam and on a
consideration of the oral and documentary evidence led by the
parties, the Labour Court recorded a finding that the services of
the workman had been terminated without complying with the
provisions of Section 25-F of the Act and therefore the termination
was illegal. Accordingly the termination was set aside and the Jala
Nigam was directed to reinstate the workman with full back
wages and continuity of service. This award came to be
challenged by the Jala Nigam in W.P. No.40822/1999. This writ
petition was heard along with the writ petitions filed in the case of
other workmen as well and all the writ petition were disposed of by
the learned single Judge by a common order. In the case of other
workmen there was considerable delay in raising the industrial
dispute and therefore the learned single Judge non-suited them on
that ground. In the case of the workman the Labour Court
observed that there had been no delay but the provisions of
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Section 25-F of the Act had not been complied with and therefore
the termination was wrongful. The learned single Judge set aside
the award of the Labour Court holding that there was no evidence
before it indicating that the workman had ever been in the service
of the Jala Nigam. According to the learned single Judge, the
workman had not discharged the initial onus of proving that he
had worked for more than 240 days with the Jala Nigam and
therefore the award directing his reinstatement was illegal. The
writ petition was allowed and the award of the Labour Court set
aside. It is against this order of the learned single Judge that a
writ appeal was filed before the Division Bench. By the impugned
judgment, the writ appeal was allowed.
Learned counsel for the appellant submitted that the basic
approach of the High Court is erroneous. It proceeded on the
basis as if the period of employment/engagement of a workman
has to be established by the employer. There is no appearance on
behalf of the workman.
In a large number of cases the position of law relating to the
onus to be discharged has been delineated. In Range Forest
Officer v. S.T. Hadimani (2002 (3) SCC 25), it was held as follows:
"2. In the instant case, dispute was referred to
the Labour Court that the respondent had worked
for 240 days and his service had been terminated
without paying him any retrenchment
compensation. The appellant herein did not accept
this and contended that the respondent had not
worked for 240 days. The Tribunal vide its award
dated 10.8.1998 came to the conclusion that the
service had been terminated without giving
retrenchment compensation. In arriving at the
conclusion that the respondent had worked for
240 days the Tribunal stated that the burden was
on the management to show that there was
justification in termination of the service and that
the affidavit of the workman was sufficient to prove
that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to
go into the question as to whether the appellant is
an "industry" or not, though reliance is placed on
the decision of this Court in State of Gujarat v.
Pratamsingh Narsinh Parmar (2001) 9 SCC 713. In
our opinion the Tribunal was not right in placing
the onus on the management without first
determining on the basis of cogent evidence that
the respondent had worked for more than 240
days in the year preceding his termination. It was
the case of the claimant that he had so worked but
this claim was denied by the appellant. It was then
for the claimant to lead evidence to show that he
had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that
cannot be regarded as sufficient evidence for any
court or tribunal to come to the conclusion that a
workman had, in fact, worked for 240 days in a
year. No proof of receipt of salary or wages for 240
days or order or record of appointment or
engagement for this period was produced by the
workman. On this ground alone, the award is
liable to be set aside. However, Mr. Hegde
appearing for the Department states that the State
is really interested in getting the law settled and
the respondent will be given an employment on
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compassionate grounds on the same terms as he
was allegedly engaged prior to his termination,
within two months from today."
The said decision was followed in Essen Deinki v. Rajiv
Kumar (2002 (8) SCC 400).
In Rajasthan State Ganganagar S. Mills Ltd. v. State of
Rajasthan and Anr. (2004 (8) SCC 161), the position was again
reiterated in paragraph 6 as follows:
"It was the case of the workman that he had
worked for more than 240 days in the year
concerned. This claim was denied by the appellant.
It was for the claimant to lead evidence to show
that he had in fact worked up to 240 days in the
year preceding his termination. He has filed an
affidavit. It is only his own statement which is in
his favour and that cannot be regarded as
sufficient evidence for any Court or Tribunal to
come to the conclusion that in fact the claimant
had worked for 240 days in a year. These aspects
were highlighted in Range Forest Officer v. S.T.
Hadimani (2002 (3) SCC 25). No proof of receipt
of salary or wages for 240 days or order or record
in that regard was produced. Mere non-production
of the muster roll for a particular period was not
sufficient for the Labour Court to hold that the
workman had worked for 240 days as claimed."
In Municipal Corporation, Faridabad v. Siri Niwas (2004 (8)
SCC 195), it was held that the burden was on the workman to
show that he was working for more than 240 days in the preceding
one year prior to his alleged retrenchment. In M.P. Electricity
Board v. Hariram (2004 (8) SCC 246) the position was again
reiterated in paragraph 11 as follows:
"The above burden having not been discharged
and the Labour Court having held so, in our
opinion, the Industrial Court and the High Court
erred in basing an order of reinstatement solely on
an adverse inference drawn erroneously. At this
stage it may be useful to refer to a judgment of this
Court in the case of Municipal Corporation,
Faridabad v. Siri Niwas JT 2004 (7) SC 248
wherein this Court disagreed with the High Court’s
view of drawing an adverse inference in regard to
the non-production of certain relevant documents.
This is what this Court had to say in that regard:
"A court of law even in a case where
provisions of the Indian Evidence Act apply,
may presume or may not presume that if a
party despite possession of the best
evidence had not produced the same, it
would have gone against his contentions.
The matter, however, would be different
where despite direction by a court the
evidence is withheld. Presumption as to
adverse inference for non-production of
evidence is always optional and one of the
factors which is required to be taken into
consideration is the background of facts
involved in the lis. The presumption, thus,
is not obligatory because notwithstanding
the intentional non-production, other
circumstances may exist upon which such
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intentional non-production may be found to
be justifiable on some reasonable grounds.
In the instant case, the Industrial Tribunal
did not draw any adverse inference against
the appellant. It was within its jurisdiction
to do so particularly having regard to the
nature of the evidence adduced by the
respondent."
In Manager, Reserve Bank of India, Bangalore v. S. Mani and
Ors. (2005(5) SCC 100) a three-Judge Bench of this Court again
considered the matter and held that the initial burden of proof was
on the workman to show that he had completed 240 days of
service. Tribunal’s view that the burden was on the employer was
held to be erroneous. In Batala Cooperative Sugar Mills Ltd. v.
Sowaran Singh (2005 (7) Supreme 165) it was held as follows:
"So far as the question of onus regarding working
for more than 240 days is concerned, as observed
by this Court in Range Forest Officer v. S.T.
Hadimani (2002 (3) SCC 25) the onus is on the
workman."
The position was examined in detail in Surendranagar District
Panchayat v. Dehyabhai Amarsingh (2005 (7) Supreme 307) and
the view expressed in Range Forest Officer, Siri Niwas, M.P.
Electricity Board cases (supra) was reiterated.
In R.M. Yellatti v. The Asst. Executive Engineer (JT 2005 (9)
SC 340), the decisions referred to above were noted and it was
held as follows:
"Analyzing the above decisions of this court, it is
clear that the provisions of the Evidence Act in
terms do not apply to the proceedings under
section 10 of the Industrial Disputes Act. However,
applying general principles and on reading the
aforestated judgments, we find that this court has
repeatedly taken the view that the burden of proof
is on the claimant to show that he had worked for
240 days in a given year. This burden is
discharged only upon the workman stepping in the
witness box. This burden is discharged upon the
workman adducing cogent evidence, both oral and
documentary. In cases of termination of services
of daily waged earner, there will be
no letter of appointment or termination. There will
also be no receipt or proof of payment. Thus in
most cases, the workman (claimant) can only call
upon the employer to produce before the court the
nominal muster roll for the given period, the letter
of appointment or termination, if any, the wage
register, the attendance register etc. Drawing of
adverse inference ultimately would depend
thereafter on facts of each case. The above
decisions however make it clear that mere
affidavits or self-serving statements made by the
claimant/workman will not suffice in the matter of
discharge of the burden placed by law on the
workman to prove that he had worked for 240
days in a given year. The above judgments
further lay down that mere non-production of
muster rolls per se without any plea of
suppression by the claimant workman will not be
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the ground for the tribunal to draw an adverse
inference against the management. Lastly, the
above judgments lay down the basic principle,
namely, that the High Court under Article 226 of
the Constitution will not interfere with the
concurrent findings of fact recorded by the labour
court unless they are perverse. This exercise will
depend upon facts of each case."
The above position was again re-iterated in ONGC Ltd. and
Anr. v. Shyamal Chandra Bhowmik (2006 (1) SCC 337) and Chief
Engineer, Ranjit Sagar Dam and Anr. v. Sham Lal (2006 AIR SCW
3574).
Above being the position, impugned order of the High Court
cannot be maintained and is set aside.
Appeal is allowed. No order as to costs.