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2007 DIGILAW 583 (DEL)

DHARA v. PRESIDING OFFICER

2007-03-15

HIMA KOHLI

body2007
JUDGMENT Hima Kohli, J.- The petitioner has filed the present writ petition for quashing the impugned award dated 13.8.1998, passed by the Presiding Officer, Labour Court in ID No. 185/1989, whereunder it was held that the petitioner /workman was not able to prove his claim and thus the action of the respondent/management in terminating the services of the petitioner/ workman was held to be legal and justifiable. 2. Brief facts which are relevant for deciding the petition are that the petitioner was taken into employment of respondent No.2, MCD as a Mali/Beldar in the Horticulture Department at Civil Lines Zone, w.e.f 1.1.1983. The petitioner claimed that his services were terminated by respondent No.2 w.e.f 26.2.1986, without assigning any valid reason thereof and in violation of the provisions of Industrial Disputes Act, 1947 (hereinafter, in short referred to as the Ace). A demand notice dated 3.4.1988, was served on behalf of the petitioner on respondent No.2 to which no reply was received, as a result of which the petitioner raised an industrial dispute. As no settlement could be arrived at in the conciliation proceedings initiated by the Conciliation Officer, the appropriate Government referred the dispute of the petitioner for adjudication vide reference dated 3.3.1989, containing the following terms of reference: "Whether the termination of services of Sh. Dhara is illegal and/ or unjustified and, if so, to what relief is he entitled and what directions are necessary in this respect?" 3. The petitioner filed a statement of Claim challenging his illegal termination and claiming reinstatement of service with continuity of service and full back wages. The respondent No.2 disputed the claim of the petitioner and filed its written statement. After pleadings were completed, both the parties adduced the evidence and filed certain documents on the record in support of their respective cases. After perusing the entire material on record, including the pleadings of the parties, the evidence led and the arguments addressed, the Presiding Officer, Labour Court passed an award rejecting the claim of the petitioner to reinstate him in service, on the ground that he had failed to prove that he was in the employment of the respondent No.2 and had actually worked for 240 days continuously in the preceding 12 months, prior to the date of his termination. Counsel for the petitioner submitted that the impugned award suffers from an error of law and mis appreciation of the statute and thus is liable to be set aside. He submitted that the Lower Court failed to appreciate the law that though the onus of proving the fact that the workman has been employed for 240 days in one calendar year, is on the workman, but once the workman enters into the witness box and deposes on affidavit that he was in the employment of the respondent and had actually worked for 240 days continuously in the preceding 12 months prior to the date of his termination, and the respondent/management does not produce the muster roll/attendance register for the claimed period, then an adverse inference ought to be drawn against the management and it ought to be held that the workman had worked for the period which he was claiming. Reliance has been placed by the Counsel for the petitioner on the judgment rendered by the Supreme Court in the case of H.D. Singh v. Reserve Bank of India, reported as 1985 SCC L & S 975. 4. It was argued by Counsel for the respondent/management that muster rolls are authentic proof of the actual number of days for which the petitioner worked with the respondent and that the same were in the power and possession of respondent/ management. In the present case, the respondent No.2 having produced the muster roll for only 3 or 4 months and having failed to produce the muster roll for the entire relevant period, the Labour Court ought to have drawn an adverse inference against the respondent/management and in favour of the petitioner/workman. The petitioner referred to the judgment of the Supreme Court rendered in the case of RM. Yellati v. The Asstt. Executive Engineer, reported as I (2006) SLT 32=2005 IX AD (SC) 261 = (2006) 1SCC 106, to state that the respondent/ management was duty-bound to produce before the Labour Court, the nominal muster rolls for the relevant period. 5. Counsel for the petitioner also submitted that the Labour Court failed to appreciate that Sections 25G of the Act does not require any particular period of continuous service as is the requirement under Section 25F of the Act, and that violation of Section 25G would be a reason good enough to hold that the termination of the petitioners service is void. It was argued that in the impugned award, there was no discussion on the applicability of the provisions of Section 25G under the mistaken impression that since 240 days were not completed by the petitioner, therefore, Section 25G was also not applicable to him. It was further alleged by the petitioner that while persons who came after him were retained in service, he was removed illegally by the management, to mete out hostile discrimination against him. In support of his arguments, the petitioner relied upon the judgment of this Court in Amarpal Singh and Anr. v. M.C.D., reported as 2006 II AD (Delhi) 43. 6. On the other hand, Counsel for the respondent argued that the petitioner had not worked for 240 days continuously in the 12 months b immediately preceding the date of his termination. Reliance was placed on the deposition of the witness produced by the management (MW 1) in this regard. It was submitted that the provisions of Section 25F and 25G were not applicable to the petitioner for the simple reason that the petitioner was never retrenched. Hence, the question of the respondents maintaining the list of seniority and applying the principles of last come first go, would not apply. 7. It was stated that the petitioner was appointed only for a specific work on specific days and no proof was given by the petitioner to show that he had worked continuously for 240 days with the respondent/management, for any inference to be drawn in his favour. Counsel for the respondent also pointed out that except for a bald statement made by the petitioner to the effect that workers junior to the petitioner were retained in service while the petitioner had been thrown out, the petitioner did not furnish any specific names of persons appointed by the respondent subsequent to him. 8. I have heard the learned Counsel for the parties and have also perused the records as placed on the file including the pleadings of the parties, the evidence of the witnesses and the impugned award. The main ground for answering the reference against the petitioner was the fact that the petitioner/workman failed to establish on record that he was in the employment of the respondent and had actually worked for 240 days continuously in the preceding 12 months. The main ground for answering the reference against the petitioner was the fact that the petitioner/workman failed to establish on record that he was in the employment of the respondent and had actually worked for 240 days continuously in the preceding 12 months. The Presiding Officer, referred to the evidence adduced by the management by way of muster rolls filed on record for the months of July and August, 1983, December, 1983 and January, 1984, to hold that a perusal of the muster rolls showed that during the aforementioned months, the workman worked on daily wages and there was no proof given by the workman to show that during the intervening period, he had been continuously working for the respondent. 9. While testing the legality and validity of the impugned award arrived at on the basis of the aforementioned grounds, it is appropriate to refer to the judgment rendered by the Supreme Court in the case of R.M. Yellati (supra), wherein it was held that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. Relevant extract of the judgment is reproduced as under: "17.......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 earners, 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 (the 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 the 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 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." 10. A bare perusal of the extract of the judgment produced hereinabove shows that although the burden to prove 240 days of service lies on the workman and this burden is discharged upon workman stepping into witness box and adducing cogent evidence on oath or affidavit, yet there is a caveat attached to the effect that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of burden placed by law on the workman. 11. In this view of the matter, reliance placed by the petitioner on the aforementioned case is misplaced. Undoubtedly, in the present case the petitioner /workman had not only filed a statement of claims but had also stepped into the witness box to state that he had worked with the respondent/management since January, 1983 to 1986. He had also referred to muster rolls on which his signatures were appearing (Ex. WW-l/Ml) to (Ex. WW-l/M3). However, the argument of the petitioner that in these circumstances, it was incumbent upon the management to produce before the Labour Court the muster rolls for the relevant period and that the onus to prove that the workman had not worked with the management for 240 days shifted to the management, cannot be entertained. The contention of the petitioner that on failure of the management to produce the relevant muster rolls, an adverse inference should have been drawn against it, is also not sustainable. 12. The contention of the petitioner that on failure of the management to produce the relevant muster rolls, an adverse inference should have been drawn against it, is also not sustainable. 12. In fact, in the very judgment of R.M. Yellati (supra), on which the petitioner has placed heavy reliance, it has been held by the Apex Court that burden is discharged upon the workman adducing cogent evidence, both oral and documentary and that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be a ground for the Tribunal to draw an adverse inference against the management. In the present case, however, the petitioner admits that he had never summoned the relevant muster rolls himself, nor had he taken any plea of suppression of such records by the management. In fact, the management witness had on his own, produced some of the muster rolls. In the facts of the present case therefore, it is not appropriate to draw an adverse inference against the management for non-production of muster rolls. 13. Even on facts, the present case can be distinguished from the aforementioned case. In the case of R.M. Yellati (supra), the workmans allegations were not based merely on his affidavit, but were well supported with other cogent documentary evidence, i.e., certificate issued by the Asst. Executive Engineer. However, in the present case, there is no such cogent evidence produced by the petitioner workman and even the most relevant document, namely, the muster rolls were not summoned by him. Further, even the deposition of the petitioner when he stepped into the witness box, shows that the petitioner admitted that he did not work continuously and he was not employed during the intervening periods. 14. Reliance has also been placed by the petitioner workman on the concluding remarks of the Supreme Court in the aforementioned case, wherein it was observed as under: "Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/ clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Government should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government." 15. No doubt, recommendations have been made by the Supreme Court by way of its aforesaid concluding observations, to the effect that the State Governments should maintain proper records of the services rendered by daily wagers, but that, in itself, is of no help to the petitioner, for the simple reason that the petitioners case is not in conformity with the principles of law as laid down in the said case, and that is enough to demolish the entire case of the petitioner. Had the petitioner summoned the muster rolls from the respondent/management and the latter despite being under an obligation to produce the same before the Labour Court, would have failed to do so, then an adverse interference could have been drawn against the respondent. But, as noted above, such is not the case here, as no such record was summoned by the petitioner. 16. The other alternate plea of the petitioner is to the effect that assuming that he had not worked for 240 days continuously in the preceding 12 months prior to his termination, still the provisions of Section 25G would be attracted. This argument of the petitioner is misconceived for the reason that a bald statement made in the statement of claim to the effect that the persons junior to the petitioner were retained while the petitioner was thrown out, is not sufficient. This argument of the petitioner is misconceived for the reason that a bald statement made in the statement of claim to the effect that the persons junior to the petitioner were retained while the petitioner was thrown out, is not sufficient. The petitioner was under an obligation to furnish the names of the persons who he claimed were junior to him, but were retained in service. No particulars were furnished nor was any affidavit filed by the petitioner before the Labour Court giving the names of the said persons for the Labour Court to have upheld the claim of the petitioner. Had the petitioner made assertions to the said effect duly backed with evidence that he was thrown out of work and juniors to him had been retained in employment and had such an evidence remained unrebutted, then a conclusion could have been drawn in favour of the petitioner and against the respondent. Such is not the case here. Any reliance placed on the judgment in the case of Amarpal (supra), cannot be of any avail to the petitioner. Hence, it cannot be held that the provisions of Section 25G of the Act are attracted to the present case and any hostile discrimination was meted out against the petitioner. 17. In view of the observations made hereinabove with regard to the petitioner having failed to discharge the onus placed on him to prove that he had worked for 240 days in a given year and having failed to establish that while he was thrown out, persons junior to him were retained in service, contrary to the principles of last come, first go, it is held that the conclusion arrived at in the impugned award is neither perverse nor illegal and does not warrant any interference by this Court. The petition is therefore dismissed, being devoid of merits. Parties are left to bear their own costs. Petition dismissed.