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2014 DIGILAW 1005 (PNJ)

Banwari Lal v. State of Haryana

2014-07-02

G.S.SANDHAWALIA

body2014
JUDGMENT : Gurmeet Singh Sandhawalia, J. The petitioner-workman is aggrieved against the award dated 11.07.2008 (Annexure P7) whereby the Labour Court, Gurgaon has declined his reference on the ground that the workman has failed to prove that he had completed 240 days of continuous service preceding his date of termination and that his appointment was not as per the approved Government policy and being a back door entry, no relief could be granted to him. Counsel for the petitioner has vehemently submitted that an adverse inference should have been drawn against the respondent-Department as it has failed to produce the complete record pertaining to the muster-roll, ledger book, wages register etc. and therefore, the petitioner having worked from 1986 till 1996, was entitled for reinstatement. 2. A perusal of the paper book would go on to show that as per the demand notice served on 19.07.2001, the plea taken was that the petitioner was working since May, 1986 on daily wage basis as a Chowkidar with the respondent-Department and his services were terminated in April, 1996, without complying with the mandatory provisions of the Industrial Disputes Act, 1947 (for short, the 'Act'). Prior to raising of the demand notice, he had filed a civil suit in 1998 which he withdrew on 17.04.2001. In the reply to the demand notice, specific stand was taken by the respondent-Department that the workman was a daily wager and he was never removed from service and had left it on his own after the work had finished and he had not worked for a period of one year prior to April, 1996 and that he had only worked for 30 days in the month of September, 1995. The industrial dispute was referred to the Labour Court wherein the claim statement was filed on the same set of allegations which was contested on the ground that the workman had never worked for 240 days preceding his alleged termination in April, 1996 and had only worked in the month of September, 1995 for a period of 30 days. In the replication, the contents of the written statement were denied and it was stated that he continued working till April, 1996 and the Department had concealed the whole record of the period of his work. 3. In the replication, the contents of the written statement were denied and it was stated that he continued working till April, 1996 and the Department had concealed the whole record of the period of his work. 3. The Labour Court examined the workman as WW1, Banwari Lal and Anil Kumar as RW1, on behalf of the Department and a finding was recorded after placing reliance upon Ex. R4 that he had worked for 256 days from December, 1991 to September, 1992; 292 days from February, 1993 to December, 1993 and 264 days from February, 1994 to December, 1994. In the year 1995, he had only worked for 30 days in the month of September. Accordingly, it was held that the workman having failed to complete 240 days in the preceding year, as per his own case, was not entitled for the benefit of Section 25F of the Act. Reliance was also placed upon documents Exhibits R1 to R24 to hold that the statement of the departmental witness was corroborative of the said fact. A plea was also taken before the Labour Court by the workman that the entire muster-roll, ledger book and wages register having not produced, an adverse inference was to be drawn against the Management by holding that the relevant record had not been produced. But mere non-production of some of the muster-rolls was rejected by the Labour Court by holding that it would not be a ground to draw an adverse inference against the respondent-Department. 4. The Labour Court, in its detailed award, running into over 34 paragraphs, spent considerable force and energy to hold that the workman being a daily wager and not appointed on regular basis, had no right to the post which was of public employment and placed reliance upon the judgment of the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 to hold that the question of regularizing such an appointment does not arise, in such circumstances. 5. Umadevi and Others, (2006) 4 SCC 1 to hold that the question of regularizing such an appointment does not arise, in such circumstances. 5. After perusing the complete paper book and the record of the Labour Court, which has been summoned, this Court is of the firm view that no fault can be found in the well reasoned order of the Labour Court though the view regarding the petitioner's right for agitating his case of illegal retrenchment, without following the mandatory provisions of the Act would still subsist and the judgment of the Apex Court in the case of Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) would not stand in his way. The Apex Court in Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), has held that the judgment passed in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) was pertaining to the right of regularization and did not have any bearing in the interpretation of Section 25-F of the Act and the employer's obligation, as enumerated in that section. Thus, the right of the petitioner-workman to agitate before the Labour Court was there provided he was able to show that the mandatory provisions of Section 25-F of the Act had not been complied with. Section 25-F and 25B specifically provide that preceding the date of termination, the workman has to be employed 240 days continuously for him to agitate the fact that there has been violation of the provisions of the Act. 6. In the present case, it was the categorical case of the Department, right from the time the demand notice was served and after the civil suit was withdrawn, that the workman had only worked for 30 days in the month of September, 1995 and therefore, the protection of Section 25-F cannot be asked for. The same stand was taken in the written statement of the Management and relevant records were produced. As per Exhibits R1 to R24, reliance upon which has also been placed by the Labour Court, would also show that the respondent-Management was able to demonstrate that the workman had not completed the requisite number of days in the preceding year, prior to his termination. As per Exhibits R1 to R24, reliance upon which has also been placed by the Labour Court, would also show that the respondent-Management was able to demonstrate that the workman had not completed the requisite number of days in the preceding year, prior to his termination. Once the mandatory conditions were not fulfilled, the Labour Court was well justified in holding that the petitioner was a mere daily wager and he had not been working after September, 1995 and had not come forth for work and therefore, could not claim the benefit of reinstatement on the ground that his services had been illegally retrenched. It is also pertinent to notice that the civil suit was also filed in July, 1998 while his services had been terminated in the year 1996. The petitioner would have immediately agitated at that point of time when his services were terminated and would not have waited for 2 years and 3 months to initiate civil proceedings. The respondent-Department had discharged its onus by producing the relevant record and it is not the case of the petitioner-workman that any application was filed by him by which it could have been proved that he had worked for 240 days preceding the date of termination and that the Department had failed to produce any record. Mere self-serving statement of the workman would not shift the onus which he had to discharge and neither an adverse inference could be drawn, in such circumstances. 7. The Apex Court in Municipal Corporation, Faridabad Vs. Siri Niwas, (2004) 8 SCC 195 , while examining the provisions of Sections 25-B and 25-F of the Act and the principle of adverse inference which has to be drawn against a party, held that where despite a direction by the Court, the evidence is withheld, presumption as to adverse inference in case of non-production of evidence is one of the factors which is required to be taken into consideration. It was also further held that the actual period of 240 days preceding the date of reference to which the calculation is to be made is to be seen for the purpose of invoking the provisions of Section 25-F of the Act. The relevant paragraphs read thus: "12. The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however applicable. The relevant paragraphs read thus: "12. The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent there for are satisfied. Section 25-F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment: (i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof; (ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months. 13. For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25-B of the Act. In terms of sub-Section (2) of Section 25-B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17.5.1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5.8.1994 to 16.5.1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case. 14. A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the Respondent." 8. The said view was thereafter followed in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, (2005) 8 SCC 750 wherein also, the workman had worked for a period of 10 years from 1976 to 1986. It was held that the scope of inquiry before the Labour Court was only to the 12 months preceding the date of termination to decide the question of continuity of service for the purpose of Section 25-F and wages, proof of receipt of salary, examination of co-worker were relevant factors to determine whether the said period had been completed. It was held that the scope of inquiry before the Labour Court was only to the 12 months preceding the date of termination to decide the question of continuity of service for the purpose of Section 25-F and wages, proof of receipt of salary, examination of co-worker were relevant factors to determine whether the said period had been completed. Resultantly, the appeal of the management was allowed since the Labour Court had been prejudiced by the fact that the workman had worked from 1976 to 1986 and had directed reinstatement in spite of the fact the management had taken specific plea that the workman had not completed 240 days of continuous service in the 12 months preceding the date of termination of his services. Similar are the facts of the present case. The relevant observations of the above said judgment read thus: "19. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25-F of the Industrial Disputes Act. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25-F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non-compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for noncompliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have been proved." 9. Reliance can also be safely placed upon a three-Judge Bench judgment of the Apex Court in R.M. Yellatti Vs. The Assistant Executive Engineer, (2006) 1 SCC 106 wherein it has been held as under: "17. Analyzing 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 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. 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 earner, 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 (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 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 fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case." 10. Another factor which mitigates against the petitioner is that the present writ petition also suffers from delay and latches. The award was passed way back on 11.07.2008 and the present writ petition has been filed only on 25.02.2011, after more than 2 1/2 years. Nothing has been set forth in the writ petition to show as to why the delay has occurred and the mere submission of counsel for the workman that he is a poor Chowkidar does not satisfy the conscience of this Court. Nothing has been set forth in the writ petition to show as to why the delay has occurred and the mere submission of counsel for the workman that he is a poor Chowkidar does not satisfy the conscience of this Court. Accordingly, keeping in view the finding of fact which has been recorded by the Labour Court, which is in consonance with the record and in the absence of the workman having discharged his onus, this Court is of the opinion that there is no scope for interference in the well reasoned award passed by the Labour Court. Consequently, the present writ petition is dismissed.