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2008 DIGILAW 1126 (MP)

State of M. P. v. Chunnilal

2008-09-08

SHANTANU KEMKAR

body2008
ORDER 1. By this petition filed under Article 227 of the Constitution of India the petitioner is challenging the order dated 27.2.2007 (Annexure P-3) passed by the Labour Court. Khandwa in Case No. 9/05 J.D. (Reference) by which the Labour Court has directed reinstatement of the respondent without back wages. 2. Briefly stated on failure of the reconciliation proceedings in exercise of powers under S. 10 of the Industrial Disputes Act (for short 'the Act') a reference was made by the State Government to the Labour Court, Khandwa for adjudication of the dispute as to whether the respondent's application filed on 15.2.2003 after about seven years is tenable? If yes then whether the termination of the respondent in the year 1996 is legal and proper? If not then to what extent the respondent is entitled to get the relief. 3. The Labour Court after affording opportunities to the parties to submit statement of claim and reply and after recording evidence passed the impugned order dated 27.2.2007 directing reinstatement of the respondent without back wages. Aggrieved the petitioner employer has filed this petition. 4. Shri Sanjay Joshi, learned DGA placing reliance on the Judgment of the Supreme Court in case of Surelldranagar District Panchayat v.Dalzayablzai Amarsillglz ( AIR 2006 SC 110 ) has contended that the respondent who claimed to have worked for more than five years as daily wager apart from the oral evidence did nut produce any evidence, to prove the fact that he has worked for 240 days during the period of 12 calendar months preceding the date of termination of his services in the circumstances the order of the Labour Court in the absence of such proof is not sustainable. He also placed reliance on the Judgment of Supreme Court in case of Range Forest Officer v. S. T. Hadinzani (2002) 3 SCC 25 in which it has been held that "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". He also relied on Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, 2004 (8) SCC 161 , Faridabad v. Siri Niwas, 2004 (8) SCC 195 and M.P. Electricity Board v. Hariranz, 2005 (2) Vidhi Bhasvar 123 = 2004 (8) SCC 246 in which it has been held that burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer. He submits that the respondent having not produced proof of receipt of salary or wages or any other wages the Labour Court should have shifted the burden on the petitioner. 5. Having gone through the impugned award I find that neither any coworker has been examined, nor any cogent evidence was produced by the respondent and the Labour Court shifted the onus on the petitioner. When the respondent has failed to discharge his burden by adducing cogent evidence that he was in employment for 240 days during the preceding 12 months of the date of termination of his service, the Labour Court was not right in shifting the burden on the petitioner. In the circumstances as prayed by learned DGA the matter requires to be remitted to the Labour Court for fresh adjudication by giving the parties opportunities to lead further evidence. 6. In view of the aforesaid as agreed the petition is disposed of by quashing the impugned order dated 27.2.2007 passed by the Labour Court. The matter is remitted to the Labour Court for deciding it afresh in accordance with law within six months from the date of receipt of copy of this order after affording the parties to lead further evidence. Parties to appear before the Labour Court on 23.9.2008.