Full Judgment Text
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CASE NO.:
Appeal (civil) 19 of 2007
PETITIONER:
G.M., B.S.N.L. & Ors.
RESPONDENT:
Mahesh Chand
DATE OF JUDGMENT: 15/02/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 19 OF 2007
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a Division
Bench of the Rajasthan High Court, Jaipur Bench, dismissing
the Special Appeal filed under Section 18 of the High Court
Ordinance Act, 1949 (in short the ’High Court Act’). In the
Special Appeal challenge was to the order passed by a learned
Single Judge in SB Civil Writ Petition No. 3514 of 2005. The
learned Single Judge had upheld the award made by the
Central Government Industrial Tribunal, Jaipur (in short the
’Tribunal’).
Background facts in a nutshell are as follows:
Respondent made grievance that his services were
illegally terminated with effect from 13.10.1998. His case was
that he had worked continuously from 1987 till 1998. He
worked for 240 days in a calendar year. Therefore, his services
could not have been terminated without complying with the
requirements of Section 25-F of the Industrial Disputes Act,
1947 (in short the ’Act’).
Appellants took the stand that the respondent was
engaged on a purely temporary basis and was engaged for
doing part time work on some days. The question of his having
worked for more than 240 days is not therefore relevant. He
was actually engaged for 2 to 3 hours a day on some days. It
was pointed out that there was no such post of Safaiwala ever
created and, therefore, the claim was thoroughly mis-
conceived.
The following reference was made to the Tribunal:
"Whether the action of management of
Telecommunication Department in terminating
the services of workman Sh. Mahesh Chand
w.e.f. 13.10.98 was legal and justified? If not,
what relief the workman is entitled and from
what date?"
By its award dated 29.9.2004 the Tribunal came to hold
that the claim of the respondent was that he had worked for
five hours a day and therefore was entitled to be regularized as
a regular Safaiwala. Accordingly, it was held that termination
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of the respondent from service is illegal and he is entitled to be
re-instated with continuity in service but without back wages.
Learned Single Judge of the High Court as noted above
dismissed the writ petition filed.
2. Learned counsel for the appellants submitted that the
casual and part time nature of the engagement is evident from
the fact that some times the mother and some times the wife
of the respondent was engaged. The Tribunal noted the claim
of the respondent that respondent was being paid Rs.8/- per
day. Even according to his own, the respondent, which has
also not been accepted by the present appellants, was working
for five hours a day.
3. Learned counsel for the respondent on the other hand
has submitted that he was working for nearly 8 hours every
day and, therefore, the orders of the Tribunal and the High
Court cannot be faulted.
4. On the question of whether the respondent had worked
continuously for 240 days in a calendar year the Tribunal and
the High Court have wrongly placed the onus on the employer
to prove the negative. This is clearly contrary to the decision of
this Court.
5. 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
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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).
6. 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."
7. 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
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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 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."
8. 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."
9. 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.
10. 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
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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 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."
(See ONGC Ltd. And Anr. v. Shyamal Chandra Bhowmik
(2006 (1) SCC 337).
11. Additionally, the specific stand of the appellants in the
proceedings before the Tribunal and the High Court was that
there is no sanctioned post of Safaiwala. There is no finding
recorded by the Tribunal or the High Court that this stand is
incorrect. Further, the respondent is also not consistent as to
the period for which he worked. At one place he said he was
working for five hours each day and other places he had stated
that he was working for 8 hours. On the contrary, the
appellant with reference to the nature of work done
categorically stated that on a part time basis depending on the
need and requirement the respondent was engaged for 2 to 3
hours periodically. Interestingly, the work that was being done
by the respondent was also being done by his wife and his
mother. Sometimes, no order of appointment was admittedly
issued to the respondent. This fact is mis-conceived. In view
of the aforesaid factual scenario, the award made by the
Tribunal as affirmed by learned Single Judge and the Division
Bench cannot be sustained and is set aside. The appeal is
allowed with no order as to costs.