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2013 DIGILAW 153 (GUJ)

Paresh B. Chauhan v. Union of India

2013-03-12

R.D.Kothari, Ravi R.Tripathi

body2013
Judgment Ravi R. Tripathi, J.—The present petition is filed challenging judgment and order dated 12/01/2007 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad [‘Central Administrative Tribunal’ is herein after referred to as the ‘Tribunal’] in O.A. No.607 of 2005. The Tribunal was pleased to dismiss the O.A. having found no merit in the Original Application. This petition was filed on 06/08/2007. From the order-sheet, it transpires that the matter was dismissed for default and it was restored by the Hon’ble Court [Coram: Hon’ble Miss R.M. Doshit (as she was then) & Mr. K.M. Thaker, JJ] by order dated 07/10/2008 in Misc. Civil Application No.1420 of 2008. It appears that thereafter, the matter was never taken up for hearing and first order found in the matter is dated 03/03/2009, whereby, notice was issued to the respondents returnable on 28/04/2009. Except adjournments, no order is found, until 10/12/2009. The Court issued fresh notice to Union of India for making necessary arrangement for their representation, as the learned counsel, who was earlier appearing for Union of India submitted that he is not appearing for Union of India. It is, thereafter, that the matter came for consideration of the Court on 22/02/2013 and on that day, the Court passed following order:— “Let the matter receive consideration of a Bench of which one of us (S.G. Shah, J) is not a member after obtaining necessary nomination from Hon’ble The Chief Justice” It is, thereafter, that the office, after having obtained necessary orders from the Hon’ble The Chief Justice, placed the matter before this Court pursuant to order dated 11/03/2013. 2. Heard Mr. P.H. Pathak, learned advocate for the petitioner-applicant before the Tribunal. The case of the petitioner is set out in Paragraph-2 of the petition, which reads as under:— “...2.....The petitioner was recruited as Wireman under respondents in 1995 after calling name from Employment Exchange and after following due procedure of selection. Since 1995 the petitioner is continuously working as wireman under the office of respondent no.3. In support of contentions that petitioner is working continuously with the respondents since 1995, the petitioner had produced on record the attendance register of the office of respondent no.3 for the period for which the records was available. Copies of relevant records of muster-roll produced before the Tribunal of the office of respondent no.3 is annexed and marked as Annexure-B to this petition....” [Emphasis supplied] 3. Copies of relevant records of muster-roll produced before the Tribunal of the office of respondent no.3 is annexed and marked as Annexure-B to this petition....” [Emphasis supplied] 3. Learned advocate for the petitioner vehemently submitted that the Tribunal has committed an error in dismissing the Original Application of the petitioner, though it is the case of the petitioner that his case was akin to the applicant of other application being Original Application No.344 of 2004. Learned advocate for the petitioner invited attention of the Court to the documents, which are produced alongwith this petition including the documents produced by the respondents alongwith the reply, which are also on record being Annexure-R1 to R7. Learned advocate for the petitioner made twofold submissions- (i) the Hon’ble Tribunal ought to have believed the master and servant relationship between the petitioner on one hand and the respondents on the other, (ii) that in the event, the Tribunal comes to the conclusion that the petitioner was an employee of the ‘contractor’ then the ‘contract’ between the ‘employer’ and the ‘contractor’ was sham and bogus. Learned advocate for the petitioner invited attention of the Court to the documents produced by the respondents from Annexure-R1 to R7 and tried to demonstrate that they depict a ‘pre-arrangement’ so as to dislodge the claim of the petitioner. 4. This Court examined the matter in detail and also perused the judgment and order passed by the Hon’ble Tribunal in the matter. This Court is of the opinion that the petition has no merits and that the Tribunal has not committed any error in finding the matter without any merit and dismissing the same. 5. To start with, the case of the petitioner is that, ‘the petitioner was recruited after calling name from Employment Exchange and after following due procedure of selection’. The petitioner is not able to produce even a piece of paper in support of his aforesaid claim. That being so, in this regard, the Tribunal has rightly referred to and relied upon a decision of the Hon’ble Apex Court in the matter of ‘R.M. Yallati vs. Assistant Executive Engineer, 2006 SCC (L&S) 1’. The Tribunal has relied Paragraph-17 of the judgment, which reads as under:— “17.....Analysing 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. The Tribunal has relied Paragraph-17 of the judgment, which reads as under:— “17.....Analysing 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 afore-stated 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 of 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 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 the fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case.” [Emphasis supplied] 6. In the present case, except bald assertion and production of certain pages, which are also wrongly described, the petitioner-workman has not produced any other evidence. This exercise will depend upon the facts of each case.” [Emphasis supplied] 6. In the present case, except bald assertion and production of certain pages, which are also wrongly described, the petitioner-workman has not produced any other evidence. In O.A., there was no question, he entering into witness box, but at the same time, fact remains that he did not call upon the employer to produce any of afore-mentioned documents like nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. 7. The Hon’ble Tribunal has appreciated the facts of the case and has then recorded in Paragraph-15 of the judgment as under:— “15.....There is no pleadings on record that the applicant had been engaged through the Employment Exchange. (The documents which are on record suggests that he has been initially been engaged through a contractor and the documents further show that permission sought for from Superintending Engineer allow him to enter the premises). All the documents produced by the applicant are of 1995-97 except one internal note of 10.07.02. No documents have been brought on record to show that he had applied in response to public notice or his name had been sponsored by the employment exchange.” 8. The Hon’ble Tribunal has rightly appreciated various judgments, which have direct bearing on the question involved in the matter and on appreciation of the ratio laid down by these judgments, has rightly recorded its conclusions in Paragraph-13, which reads as under:— “13.....The decision of Constitution Bench in SAILs case (Supra) would show that even in case of industries governed by Contractor Labour (Regulation & Abolition) Act 1970 the issue of a notification under Section 10(1) did not mean that they become employees of Principal Employer. It is only when the Contractor was found to be a sham and nominal rather a camouflage that the contract labour was to be treated as employee of the principal employer. The Constitution Bench in Umadevi (3) has explained the Constitutional Scheme regarding public employment and that regularization cannot be a mode of recruitment. What can be cured is an irregularity and not an illegality.........” 9. The Constitution Bench in Umadevi (3) has explained the Constitutional Scheme regarding public employment and that regularization cannot be a mode of recruitment. What can be cured is an irregularity and not an illegality.........” 9. Learned advocate for the petitioner could not dislodge the fact noted by the Hon’ble Tribunal in Paragraph-6, which reads as under:— “6.....We also note that the assertion made in the reply on the following points is not contested by applicant by filing a rejoinder.......” 10. In view of aforesaid discussion, there is no substance. Hence, the same is dismissed. Notice is discharged with no order as to cost.