Full Judgment Text
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CASE NO.:
Appeal (civil) 1909 of 2005
PETITIONER:
Chairman, Oil and Natural Gas Corporation Ltd. & Anr.
RESPONDENT:
Shyamal Chandra Bhowmik
DATE OF JUDGMENT: 23/11/2005
BENCH:
ARIJIT PASAYAT & R.V. RAVEENDRAN
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Oil and Natural Gas Corporation Ltd. (hereinafter
referred to as the ’ONGC’) calls in question legality of the
judgment rendered by a Division Bench of the Guwahati High
Court, Agartala Bench, dismissing the writ appeal filed by
the appellants and thereby affirming order passed by the
learned Single Judge in the writ petition (Civil Rule
No.144/1992).
Factual background in a nutshell is as follows:
In May, 1992 respondent filed a writ petition before
the Guwahati High Court claiming that he had been working as
casual worker in ONGC since November, 1982 with intermittent
lay offs and but for such intermittent lay offs which were
deliberate, he would have worked for more than 240 days and
in any event during the period 1989-90 and 1990-91 he had
worked continuously for more than 240 days. It was averred
that from 2.12.1984 to 10.6.1985 he had worked as an
Automobile Mechanic Helper which established that he is a
skilled mechanic and entitled to the said post on a regular
basis. It was further claimed that on 10.1.1992 he made a
representation/demand seeking regularization in the post of
Automobile Mechanic but the same was rejected by
communication dated 30.4.1992. Respondent challenged the
said decision in a Writ Petition (Civil Rule No. 144/1992).
In the writ petition, prayer was made to quash the said
communication and for a direction to absorb him in the
regular post of Automobile Mechanic with effect from
November, 1982 with all incidental benefits. Counter-
affidavit was filed by the appellants denying the claim of
the respondent that he had been engaged for 240 days.
Respondent filed further affidavit stating that he was
called for interview for the post of Junior Security Guard
(which was open only to contingent workers who had completed
240 days service in a year) which substantiated his claim of
having worked for more than 240 days.
Appellants’ further stand was that during the pendency
of the writ petition, in December, 2000, demand was raised
by several unions for reinstatement for 340 workers of the
180 days category including respondent. Name of the
respondent figured in the list of 340 workers at serial
no.88. Conciliation was held and settlement was arrived at
on 27/28.1.2001. As per the settlement the contingent
workers (180 days category) were entitled to be re-engaged
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only for 2000-2001 field season, and on completion of 2000-
2001 field season, they should be disengaged with one time
lump sum terminal benefit payment calculated at Rs.3500/-
per field season for the continuous past service. Affidavit
was filed before the High Court bringing the said settlement
on record.
On 6.9.2001 learned Single Judge allowed the writ
petition holding that the respondent had acquired the right
not to be terminated without following provision of Section
25-F of the Industrial Disputes Act, 1947 (in short the
’Act’) and further directed absorption against the vacant
post subject to qualifying eligibility as prescribed by the
applicable service law/recruitment rules. It was held that
the settlement was not applicable to the respondent as he
denied to be a member of the union. The learned Single
Judge came to the conclusion that the settlement is not
applicable to the respondent’s case. He accepted the
respondent’s claim of having completed continuous period of
240 days in preceding twelve months. The said order of the
learned Single Judge was challenged by the appellants in
Writ Appeal. Alongwith the Appeal Memo, the appellants filed
several documents in support of their contention that
respondent had not worked for 240 days. During the course of
hearing, Division Bench of the High Court directed the
appellants to file some documents. In response to it,
certain documents were filed in July, 2004. The Division
Bench, however, did not consider the additional documents
filed by the appellants on the ground that they could not be
permitted to be produced at appellate stage. It dismissed
the writ appeal primarily on two grounds. Firstly, it was
held that ONGC had not established that the respondent had
not worked for more than 240 days in twelve months preceding
retrenchment and that it failed to establish that the
respondent was a member of any union. The dismissal of the
writ appeal is challenged herein.
In support of the appeal, Mr. G.E. Vahanvati, learned
Solicitor General, submitted that the approach of the High
Court is clearly erroneous. It was not for the appellants to
establish that the respondent had not worked for more than
240 days. On the contrary it was for the respondent-workman
to establish the said fact. Similarly, the binding nature of
settlement has not been noticed by the High Court and
erroneously it was held that the appellants have not
established that the respondent was a member of any union.
According to him, the respondent-workman was required to
establish that (a) he had worked for more than 240 days; and
(b) that he was not a member of any union. Since disputed
questions of fact were involved, the High Court should not
have entertained the writ petition. It was pointed out that
in several Bio-Data Forms filled and filed by the respondent
(required to be filed by the contractual/casual worker), the
respondent had acknowledged that he had worked for less than
240 days in each year he served. Reference in this regard is
also made to several documents filed as part of Annexure ’P’
of the rejoinder affidavit before this Court. It is pointed
out that the respondent himself has accepted that the
certificate issued to him reflected that he had worked for
less than 240 days.
On the contrary, learned counsel for the respondent-
workman submitted that the High Court has rightly placed
onus on the appellants as the initial burden to establish
that he had worked for more than 240 days has been
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discharged. Further, no explanation has been given as to
how the respondent could be called to interview which was
restricted to persons who had completed more than 240 days
of engagement.
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 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).
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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
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such 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 a recent judgment 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
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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 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."
When examined with reference to the principle laid down
in the aforesaid decisions, it is clear that the approach of
the High Court i.e. the learned Single Judge as endorsed by
the Division Bench, is not correct. The relevant issue was
not considered in its proper perspective. The respective
stand was to be examined in the light of law laid down by
this Court in the decisions referred to above. The question
of shifting of onus assumes relevance only when evidence is
led. Almost all the decisions referred to above related to
matters which came to the High Court after evidence was led
before the Tribunal by the contesting parties. High Courts
should not entertain writ petitions directly when claim of
service of more than 240 days in a year is raised. Whether
a person has worked for more than 240 days or not is a
disputed question of fact which is not to be examined by the
High Court. Proper remedy for the person making such a
claim is to raise an industrial dispute under the Act so
that the evidence can be analysed and conclusion can be
arrived at. As in the instant case the legal position has
not been analysed in the proper perspective, it would be
appropriate if the matter is decided by the forum provided
under the Act.
In the circumstances we set aside the judgment of the
learned Single Judge as affirmed by the Division Bench and
direct that in case a dispute is raised before the
appropriate Government, it shall refer the matter to the
concerned Tribunal for adjudication within two months from
the date of receipt of the dispute. The concerned Tribunal
would make an effort to dispose of the reference within six
months from the date of its reference. Normally, it is for
the appropriate Government to decide whether a reference is
called for. But in view of the undisputed position that
industrial dispute does exist, in the peculiar facts of the
case, we direct the Government to make a reference. This
would also shorten the period of litigation.
The reference shall be on the questions as to whether
(a) the workman’s claim that he had worked continuously for
more than 240 days is correct and (b) whether the settlement
arrived at on 27/28 January, 2001 is binding on the workman.
We make it clear that we have not expressed any opinion on
the merits of the case.
Appeal is accordingly allowed, but with no order as to
costs.