Full Judgment Text
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CASE NO.:
Appeal (civil) 5969 of 2004
PETITIONER:
Rajasthan State Ganganagar S. Mills Ltd.
RESPONDENT:
State of Rajasthan & Anr.
DATE OF JUDGMENT: 13/09/2004
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.11658/2003)
ARIJIT PASAYAT, J.
Leave granted.
The respondent No.2 \026 Bhagwan Das (hereinafter referred to as the
’workman’) raised a dispute which was referred by the Government of
Rajasthan to the Labour Court, Sri Ganga Nagar, Rajasthan. The dispute
of the workman, inter alia, was to the effect that though he was
appointed as a daily- wages employee on 1st March, 1990 and continued up
to 15th July, 1992 without break. His services were terminated by oral
order. It was pleaded that the dispensation of service amounted to
retrenchment and since the provisions of Section 25 (F), (G) and (H) of
the Industrial Disputes Act, 1947 (in short the ’Act’) were violated he
was entitled to the reinstatement and consequential benefits. The
present appellant (hereinafter referred to as the ’employer’) refuted
the allegations. It was specifically stated that the workman had not
really worked continuously from 01.03.1990 to 15.7.1992 as pleaded. On
the contrary, the workman was engaged whenever there was work which was
of casual nature. His total period of engagement during the years 1990,
1991 and 1992 was 56= days, 64 days and 122= days respectively. He
had worked for a total period of 138 days during the preceding 12
months. Whenever there was an additional work, the engagement was
done. Keeping in view the scope for additional engagement persons were
engaged and there was no violation of any provision of the Act. The
Labour Court came to hold that the total period during which the
workman rendered work was more than 240 days. Though specific direction
was given to the employer to produce the muster roll for the period
from 17.6.1991 to 12.11.1991, the same was not produced. Accordingly
it was held that the sanctioned days and the days covered by the muster
roll, which was not produced, taken together indicated that the workman
had worked for more than 240 days. Accordingly direction was given to
reinstate the workman and for paying 30% of the back wages.
The order was challenged before the Rajasthan High Court by
filing a Civil Writ Application bearing No. 2730/2002. A learned Single
Judge at the first instance dismissed the Writ Petition on the ground
that muster roll for a particular period was not produced. It was held
that no interference was called for considering the limited
jurisdiction under Articles 226 and 227 of the Constitution of India,
1950 (in short the ’Constitution’), more particularly when only 30% of
the back wages had been awarded. A Civil Special Appeal was filed
which was also dismissed by the Division Bench holding that since the
retrenchment was found to be invalid on appreciation of evidence and
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for non production of relevant document; no interference is called for.
In support of the appeal learned counsel for the appellant
submitted that both the Labour Court and the High Court fell into error
by placing burden on the employer to prove that the concerned workman
has not worked for more than 240 days. The Labour Court failed to
notice that even if the period for which the muster roll was not
produced is reckoned; then also the requirement of 240 days work during
twelve months preceding alleged date of termination is not established.
Per contra, learned counsel for the respondent-workman submitted
that as the Labour Court has taken into account all relevant factors,
no interference is called for. According to him the workman has
clearly established that he worked for more than 240 days during the
relevant period.
It was the case of the workman that he had worked for more than
240 days in the concerned year. 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. Even if that
period is taken into account with the period as stated in the affidavit
filed by the employer the requirement prima facie does not appear to be
fulfilled. The following period of engagement which was accepted was 6
days in July 1991, 15 = days in November 1991, 15= days in January
1992, 24 days in February 1992, 20= days in March 1992, 25 days in
April 1992, 25 days in May 1992, 7= days in June 1992 and 5= days in
July 1992. The Labour Court demanded production of muster roll for a
period of 17.6.1991 to 12.11.1991. It included this period for which
the muster roll was not produced and come to the conclusion that the
workman had worked for more than 240 days without indicating as to the
period to which period these 240 days were referable.
In our view the Labour Court and the High Court have failed to
consider the statutory requirements in their proper perspective. One
of the stands taken by the employer was that the engagement was made
keeping in view the temporary needs and it was seasonal in character.
No definite finding was recorded by the Labour Court or the High Court
in that regard.
We, therefore, remit the matter to the Labour Court to consider
the evidence and come to a definite conclusion as to whether the
workman had worked for 240 days during the period claimed. While
considering the matter afresh, the aspect of need of engagement shall
also be examined. If the engagement is found to be not for 240 days
during the relevant period, then this aspect may not be considered. In
case the Labour Court comes to a finding in the affirmative its
original order shall be maintained subject to consideration of the
seasonal need aspect. If its answer is in negative the Labour Court
shall pass appropriate orders.
The Appeal is accordingly disposed of. No costs.