Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2895 OF 2009
(Arising out of S.L.P. (C) No.24529 of 2005)
Krishna Bhagya Jala Nigam Ltd. ..Appellant
Versus
Mohammed Rafi ..Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of
the Karnataka High Court allowing the writ appeal filed by the respondent.
By the impugned judgment the Division Bench set aside the order passed by
a learned Single Judge and the award made by the Labour Court.
3. 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,
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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 petitions 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 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
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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.
4. 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.
5. Learned counsel for the respondent-workman supported the judgment
of the High Court.
6. 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:
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“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
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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.”
7. The said decision was followed in Essen Deinki v. Rajiv Kumar
(2002 (8) SCC 400).
8. 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.”
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9. 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
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notwithstanding the intentional non-production,
other circumstances may exist upon which 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."
10. 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.
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11. 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 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
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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.”
12. 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).
13. Appeal is allowed. No order as to costs.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
(ASOK KUMAR GANGULY)
New Delhi,
April 28, 2009
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