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2009 DIGILAW 1065 (ALL)

U P RAJKIYA NIRMAN NIGAM LTD v. RAM KUMAR SHUKLA

2009-04-02

TARUN AGARWALA

body2009
TARUN AGARWALA, J. The workman is seeking vindication of his wrongful termination with effect from 14th May, 1983 and hopefully, the matter will now be set as rest after 25 years. 2. It transpires that the workman was engaged sometimes in 1997 as a daily wager in the petitioners Nigam which is a construction agency of the State Government and was employed for the construction of the godowns of Food Corporation of India at various places. The service of the workman was dispensed on 15th May, 1983. The workman raised a dispute which was referred by the State Government in the year 1986. An award was made on 24th February, 1989 allowing the claim of the workman and directing reinstatement with continuity of service and with full back wages. The petitioner filed a writ petition No. 7197 of 1998 which was allowed by a judgment dated 23rd February, 2004. The Writ Court, while allowing the writ and setting aside the award, remitted the matter again to the Labour Court to decide and give a finding as to whether the workman had worked for more than 240 days in a calendar year or not. 3. Upon remand, parties filed their evidence. The workman filed an application praying that the employers be directed to file the muster roll registers for the relevant period. The petitioners did not file the muster roll registers and instead filed an objection, stating that the burden of proof that the workman had worked for more than 240 days in a calendar year was upon the workman and not upon the petitioner. The Labour Court after considering the matter, drew an adverse inference against the petitioner for the non-production of the registers and held that the workman must have worked for more than 240 days in a calendar year and, accordingly, gave an award directing reinstatement with continuity of services and with back wages. The petitioner, being aggrieved, has filed the present writ petition. 4. Heard Sri Vivek Sharma, the learned counsel for the petitioner and Sri Namit Srivastava, the learned counsel, holding brief of Sri Dhruv Narayan, the learned counsel for the respondent workman. 5. The petitioner, being aggrieved, has filed the present writ petition. 4. Heard Sri Vivek Sharma, the learned counsel for the petitioner and Sri Namit Srivastava, the learned counsel, holding brief of Sri Dhruv Narayan, the learned counsel for the respondent workman. 5. The learned counsel for the respondents submitted that the finding of the Labour Court drawing an adverse inference to the effect that the workman had worked for more than 240 days in a calendar year was patently erroneous, since the burden was upon the workman to prove this fact and, such burden could not have been fastened upon the employers. In support of his contention, the learned counsel placed reliance upon a decision of the Supreme Court in the case of Surendranagar District Panchayat v. Jethabhai Pitamberbhai, (2005) 8 SCC 450 and Batala Co-op. Sugar Mills v. Sowaran Singh, (2005) 8 SCC 481 , wherein the Supreme Court held that the requirement to prove whether the workman had worked for more than 240 days in a calendar year was upon the workman. 6. There is no quarrel with the aforesaid principle laid down by the Supreme Court in the aforesaid decisions. The workman has raised a claim under Section 4-K of the U. P. Industrial Disputes Act. The burden is upon him to prove his case but, when the workman states on oath that he has worked from 1977 till 1983 in the establishment of the petitioner, the workman has discharged that burden and now the onus shifts upon the employer to discharge its burden. The workman filed an application for the production of the muster roll registers to prove that he had worked continuously which could be proved by the production of the muster roll registers which was the best evidence. 7. No doubt, the production of the muster roll registers for the said period would prove that the workman had worked or not for the relevant period in question. The possession of these registers was with employers which is not denied. Consequently, when the onus shifted upon the petitioner, namely, the employers, the muster roll registers ought to have been produced to discharge that onus. Since this had not been done and the employers failed to discharge their onus, the Labour Court was justified in drawing an adverse inference. 8. Consequently, when the onus shifted upon the petitioner, namely, the employers, the muster roll registers ought to have been produced to discharge that onus. Since this had not been done and the employers failed to discharge their onus, the Labour Court was justified in drawing an adverse inference. 8. In view of the aforesaid, the Labour Court was justified in holding that the workman, having completed 240 days in a calendar year, was entitled for retrenchment compensation. Admittedly, retrenchment compensation as contemplated under Section 6-N of the U. P. Industrial Disputes Act, was not paid nor complied with. Consequently, the dispensation of the service of the workman was illegal and the petitioner was liable to be reinstated with continuity of service. The award of the Labour Court does not suffer from any error of law and is affirmed by this Court. 9. The labour Court while reinstating the workman has also granted back wages. In my opinion, back wages should not be granted automatically as a matter of right. The Supreme Court in U. P. State Brassware Corporation Limited and another v. Uday Narayan Pandey, (2006) 1 SCC 479 has held that grant of back wages was not automatic and other factors was required to be considered, such as whether the workman was gainfully employed during the interim period or not. There is nothing to indicate that the workman was gainfully employed during the intervening period. Consequently, the award directing full back wages appears to be arbitrary. At this stage, this Court would have remitted the matter again to the Labour Court to consider and decide the question of grant of back wages but, since the matter had already been remitted once earlier and the dispute relates to the termination of the year 1983 and 25 long years has already elapsed, this Court finds that remitting the matter again to the Labour Court to decide this issue of back wages will serve no useful purpose. It would be appropriate for the Court itself to compute the back wages and put the matter at rest. 10. This Court finds that by an interim order dated 28th July, 2006, a direction was issued to pay last drawn wages to the workman in terms of Section 17-B of the Industrial Disputes Act. The learned counsel for the workman submitted that based on the order passed by the Court, a sum of Rs. 10. This Court finds that by an interim order dated 28th July, 2006, a direction was issued to pay last drawn wages to the workman in terms of Section 17-B of the Industrial Disputes Act. The learned counsel for the workman submitted that based on the order passed by the Court, a sum of Rs. 250 per month was being paid. 11. Considering the facts and circumstances of the case that has been brought on record. I hold that a sum of Rs. one Lac would meet the ends of justice towards the payment of wages from the year 1983 till today in addition to what the workman has been paid in terms of the interim order. 12. In view of the aforesaid, the writ petition is partly allowed. The award of the Labour Court in so far as, it directs the reinstatement of the workman concerned is affirmed. The award of the Labour Court granting back wages is modified by payment of one Lac only. 13. This Court further directs that the amount of Rs. one Lac shall be paid within six weeks from today and the workman would also be reinstated within the same period and, upon reinstatement, would be paid the current wages which is payable on the post on which the workman is reinstated. .