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2014 DIGILAW 448 (GUJ)

Deputy Executive Engineer v. Kishorebhai D. Joshi

2014-03-28

R.P.DHOLAKIA

body2014
Judgment R.P. Dholaria, J.—By way of these writ petitions under Articles 226 and 227 of the Constitution of India, the petitioners herein seek appropriate writ, order and direction for quashing and setting aside the impugned common award of reinstatement without back-wages passed by the learned Presiding Officer, Labour Court, Jamnagar in Reference (LCJ) Nos. 1991 of 1990 and 1997 of 1990 respectively. 2. As the common and identical question of law and facts are involved and both the petitions arise out of a common impugned award passed by the learned Labour Court, Jamnagar, both the petitions are decided and disposed off by this common judgment. 3. The facts necessary for disposal of these writ petitions are as follows: 3.1. That Petitioner No. 2 is a statutory body constituted under the Gujarat Panchayat Act, 1994 and Petitioner No. 1 is the local official of Petitioner No. 2. 3.2. The respective respondents – workmen came to be employed locally on contingency/temporary work at the site of irrigation dam situated at Kalavad on daily wage basis. The workmen were not recruited and appointed by following any regular recruitment procedure. The Deputy Executive Engineer–Petitioner No. 1 is not competent to employ the workmen on regular post. The workmen were employed purely on temporary basis and with a specific understanding that their services were liable to be terminated at any time without any notice and/or notice pay and they would be continued till the work was available and they were relieved along with other such similarly situated daily-wager w.e.f. 25.03.1990. That the respondents were working as daily wager with the petitioner for about 6 to 7 years prior to the date of their termination i.e. 25.03.1990. At the time of their termination, the respondents – workmen were receiving Rs. 21.80ps. as daily wage. The services of the respondents – workmen came to be terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). Consequently, both the respondents have raised the industrial dispute before the learned Assistant Labour Commissioner, Jamnagar. The Assistant Labour Commissioner, Jamnagar, referred the aforesaid dispute vide Reference under Section 10(1)(c) of the Act to the Labour Court, Jamnagar for adjudication. 3.3. On receipt of the aforesaid References, the Labour Court issued notices upon the concerned parties. Consequently, both the respondents have raised the industrial dispute before the learned Assistant Labour Commissioner, Jamnagar. The Assistant Labour Commissioner, Jamnagar, referred the aforesaid dispute vide Reference under Section 10(1)(c) of the Act to the Labour Court, Jamnagar for adjudication. 3.3. On receipt of the aforesaid References, the Labour Court issued notices upon the concerned parties. The Petitioner No. 2 herein – District Panchayat, Jamnagar resisted the references by filing its counter statement inter alia contending that on completion of temporary work, the respondents came to be relieved; the workmen have not worked continuously for a period of 240 days in a calendar year preceding to their termination; they failed to prove the factum of their continuous service of 240 days in a calendar year; on termination, both the workmen were gainfully employed elsewhere and earned more than what they received as daily wage from the petitioner. 3.4. The learned Labour Court, after affording reasonable opportunity of adducing evidence to the respective parties and after hearing both the parties and after appreciating the evidence on record, by way of common award dated 11.09.2004, allowed in part the references made by the respondents herein – original workmen and directed to reinstate both the respondents – workmen without backwages. 4. Being aggrieved by and dissatisfied with the aforesaid award passed by the learned Labour Court, Jamnagar, the petitioners herein have preferred present Special Civil Applications challenging the common award dated 11.09.2004 passed by the learned Labour Court, Jamnagar in Reference (LCJ) Nos. 1991 of 1990 and 1997 of 1990 by submitting that the learned Labour Court has failed to consider that the respondents – workmen did not prove their continuous service of 240 days in a year preceding to the date of termination of their services. Consequently, the award passed by the learned Labour Court is manifestly erroneous and against the principle of settled law. That one of the workmen viz. Kishorbhai D. Joshi – respondent of Special Civil Application No.7579 of 2005 did not step into witness-box to substantiate his claim. Therefore also the award passed in favour of said Kishorbhai D. Joshi is contrary to settled principle of law. 5. Heard Ms. Khyati P. Hathi, learned advocate for the petitioners and Mr. H. K. Patel, learned advocate for the respondent in Special Civil Application No. 7579 of 2005. Therefore also the award passed in favour of said Kishorbhai D. Joshi is contrary to settled principle of law. 5. Heard Ms. Khyati P. Hathi, learned advocate for the petitioners and Mr. H. K. Patel, learned advocate for the respondent in Special Civil Application No. 7579 of 2005. Though served, nobody has appeared on behalf of the respondent in Special Civil Application No. 7582 of 2005. 6. It is contended by Ms. Hathi, learned advocate for the petitioners that the respondents herein have failed to prove that they were in continuous service of more than 240 days in a year preceding to their termination of service. Even, one of the workmen viz. Kishorbhai D. Joshi did not step into the witness box in order to prove his claim. Consequently, insofar as the claim of Shri Kishorbhai D. Joshi is concerned, he has not led any evidence and the learned Labour Court has passed the award in his favour without any iota of evidence. Even otherwise also the common award passed by the learned Labour Court suffers from the vice of sufficient evidence and based on assumption and surmises only. The learned Labour Court has recorded its finding based on the adverse inference drawn against the petitioners as the petitioners did not produce muster roll in order to prove the working days of the respondents – workmen. 7. Ms. Hathi has further argued that since the services of present respondents came to be terminated on 25.03.1990, there appears no iota of evidence regarding the present status of the respondents. Therefore, she has earnestly argued that at least the award of reinstatement requires to be interfered with by this Court by way of awarding compensation in lieu of reinstatement insofar as the case of one of the workmen viz. Deepakbhai L. Joshi is concerned. In support of her contention, she placed reliance on the decision of Hon’ble Supreme Court in the case of Senior Superintendent Telegraph (Traffic) vs. Santosh Kumar Seal & Ors. reported in (2010) 6 SCC 773 . 8. Against the aforesaid arguments, the learned advocate Mr. Deepakbhai L. Joshi is concerned. In support of her contention, she placed reliance on the decision of Hon’ble Supreme Court in the case of Senior Superintendent Telegraph (Traffic) vs. Santosh Kumar Seal & Ors. reported in (2010) 6 SCC 773 . 8. Against the aforesaid arguments, the learned advocate Mr. Harshad K. Patel has argued that the respondents have successfully proved their continuous service of 240 days in the year preceding to their termination and therefore the award of reinstatement in service passed by the learned Labour Court is just and proper and it is in consonance with the settled principle of law, which does not call for any interference of this Court. He has further argued that the respondents were daily wage earner and working with the petitioners. The respondents – workmen were not issued any letter of appointment and/or termination. No written proofs indicating their service were handed over to the respondents by the petitioners though the petitioners were maintaining the muster roll marking their presence and making entries with respect to the payment of daily wages as per the provisions of the Minimum Wages Act. In the result, as the respondents having not been provided with any proof in the nature of documentary evidence, the burden of proof is required to be shifted upon the present petitioners – employer. Mr. Patel has also argued that the learned Labour Court has, after appreciating the evidence on the record, rightly recorded the finding in favour of the respondents and therefore there appears no perversity and/or illegality which calls for any interference of this Court. 9. Now, so far as the case of one of the workmen viz. Kishorbhai D. Joshi – respondent of Special Civil Application No. 7579 of 2005 is concerned, it is revealing from the record that he raised the dispute before the Assistant Labour Commissioner. He also lodged his claim before the learned Labour Court. However, thereafter, during the entire trial and hearing, he did not appear before the learned Labour Court. Consequently, so far as the case of Shri Kishorbhai D. Joshi is concerned, merely lodging of claim before the learned Labour Court cannot be regarded as sufficient evidence for any Court/Tribunal to come to the conclusion that the claimant had worked for more than 240 days in a year preceding to his termination. Consequently, so far as the case of Shri Kishorbhai D. Joshi is concerned, merely lodging of claim before the learned Labour Court cannot be regarded as sufficient evidence for any Court/Tribunal to come to the conclusion that the claimant had worked for more than 240 days in a year preceding to his termination. Further, this Court has also found that there is no proof of receipt of salary/wages of 240 days and therefore mere non-production of muster roll for a particular period by the employer would not be a sufficient ground for the Labour Court to hold that the workman had worked for 240 days especially when the workman did not turn up to substantiate his claim. Hence, so far as the case of Kishorbhai D. Joshi is concerned, it appears that the learned Labour Court has failed to notice that he has not produced any iota of evidence in the nature of documentary and/or oral evidence to prove his claim that he had worked with the petitioner for more than 240 days in a year preceding to his termination. In absence of adducing the evidence by the workman, it would not be prudent to shift the burden of proof upon the employer – Panchayat. In consequence whereof no adverse inference can be drawn against the employer – Panchayat. In the result, the learned Labour Court has committed manifest error in passing the award in favour of Shri Kishorbhai D. Joshi – respondent of Special Civil Application No. 7579 of 2005. 10. Now, so far as the case of Deepakbhai L. Joshi is concerned, he has been examined vide Exh. 12 before the learned Labour Court. He deposed that he has been working with the petitioner for about 7 years and he was getting Rs. 21.80ps. as daily wage and without issuing any notice of termination and compensation in lieu of termination, his services came to be terminated w.e.f. 25.03.1990. He also deposed that the petitioners have not issued any appointment letter, pay-slip or muster roll to him. The petitioners were maintaining muster roll and marking their presence and used to pay the wages by making entry in the register. 10.1. He admitted in the cross-examination that he as well as his colleague Shri K.D. Joshi were gainfully employed after their termination. He also admitted that none has been made permanent and none has been recruited at their place. 11. 10.1. He admitted in the cross-examination that he as well as his colleague Shri K.D. Joshi were gainfully employed after their termination. He also admitted that none has been made permanent and none has been recruited at their place. 11. On behalf of the present petitioners, one Vashantlal Nathalal Karai has been examined vide Exh. 24. He deposed that he is serving as a Deputy Executive Engineer with the District Panchayat, Jamnagar since 19 years. The respondents were temporarily employed for temporary work and whenever their work was needed they were called and they were being paid on the basis of prevalent minimum wages. The respondents were not working at any permanent post and they were employed without following any procedure. They were appointed temporarily for contingent/temporary work. He has also deposed that both the respondents were gainfully employed after their termination. In support of his say he has also produced the proof thereof. 12. Upon the reference came to be made before the learned Labour Court for adjudication proceedings, the respondents – workmen lodged their respective claims before the learned Labour Court. In support of their claim, the respondent – Deepakbhai L. Joshi has led his oral evidence as well as also summoned the documentary evidence in the nature of muster roll, pay-slip etc. from the employer – Panchayat. The respondent - Kishorbhai D. Joshi did not step into the witness box to prove his case nor he has tried to adduce any documentary evidence by way of seeking production of documents. As the employer – Panchayat did not produce the entire record pertaining to the services rendered by the respondent – Deepakbhai L. Joshi, the learned Labour Court has drawn adverse inference against the employer – Panchayat and rendered the finding that the respondent has completed 240 days in a year preceding to his termination. 13. On analyzing the factual scenario emerging out of the present case, it is clearly indicative of the fact that the workman was daily wage earner. He was appointed purely on temporary basis to work in the irrigation division of the Panchayat. He was not given any letter of appointment and/or termination. He was not given any written document which he could produce as the proof of receipt of wages. He was appointed purely on temporary basis to work in the irrigation division of the Panchayat. He was not given any letter of appointment and/or termination. He was not given any written document which he could produce as the proof of receipt of wages. Even though the muster roll which was maintained by the irrigation division of petitioner, the same has not been produced before the learned Labour Court. As the services of the workman came to be terminated, the workmen raised the dispute before the learned Assistant Labour Commissioner, who in turn referred the dispute to the learned Labour Court for adjudication. Before the learned Labour Court, the workmen lodged their claims. However, one of the workmen viz. Kishorbhai D. Joshi did not come forward to prove his case. So far as the case of one Shri Deepakbhai L. Joshi is concerned, he stepped into the witness box and deposed on oath to prove the aforesaid facts. In the result, the onus of proof lawfully shifts upon the employer to produce the above referred evidence. In the present case, indisputably, except the oral version, no iota of evidence is available with the workman. All the documentary evidences in the nature of muster roll, pay- slip and/or any register maintained by the employer is with the Panchayat – employer. In that view of the matter, the workman summoned the documentary evidence as referred hereinabove for proving his case that he had worked for about 240 days in a year preceding to the date of his termination. But, as narrated above, the Panchayat failed to produce the entire set of evidence. By way of tendering his own testimony as well as summoning the documentary evidence from the Panchayat - employer, the onus of proof on the part of the workman is discharged. As per the rule of procedure and proof the person who asserts has to prove his case and onus of proving the fact also lies upon him. That onus is discharged by way of his own testimony as well as summoning the requisite documentary evidences from the Panchayat – employer. In this situation invoking the provisions of Section 114 of the Indian Evidence Act, the legitimate adverse inference can be drawn as the onus of proof lawfully shifts upon the Panchayat – employer to prove the working days of the workman. In this situation invoking the provisions of Section 114 of the Indian Evidence Act, the legitimate adverse inference can be drawn as the onus of proof lawfully shifts upon the Panchayat – employer to prove the working days of the workman. In that view of the matter, whenever the Panchayat – employer failed to produce the entire record, in the case of workman Deepakbhai L. Joshi, the learned Labour Court has rightly drawn an adverse inference and believed that the workman has completed more than 240 days in a year preceding to the date of his termination. 14. Now, coming to the second limb of submission made by Ms. Hathi, learned advocate for the petitioners that the order of termination came to be passed on 25.03.1990 i.e. before about 24 years and in the meantime the workman was gainfully employed and he himself has admitted that he was gainfully employed elsewhere, instead of reinstatement, the workman may be paid compensation in lieu of his reinstatement. Ms. Hathi also contended that in absence of any documentary evidence disclosing the age of the workman, it is possible that the workman might have reached the age of superannuation and therefore no useful purpose would be served in granting reinstatement. Relying upon the celebrated decision of the Hon’ble Supreme Court in the case of Santosh Kumar Seal (Supra), it is contended that this Court should interfere by modifying the award of reinstatement to awarding a lumpsum compensation in lieu of reinstatement. 15. In the case of Santosh Kumar Seal (Supra), the Hon’ble Supreme Court has observed as under: “9. In last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. & Anr. vs. Uday Narain Pandey; Uttaranchal Forest Development Corpn. vs. M.C. Joshi; State of M.P. & Ors. vs. Lalit Kumar Verma; Madhya Pradesh Administration vs. Tribhuban; Sita Ram & Ors. vs. Moti Lal Nehru Farmers Training Institute; Jaipur Development Authority vs. Ramsahai & Anr.; Ghaziabad Development Authority & Anr. vs. Ashok Kumar & Anr. and Mahboob Deepak vs. Nagar Panchayat, Gajraula & Aewnr.) 10. vs. M.C. Joshi; State of M.P. & Ors. vs. Lalit Kumar Verma; Madhya Pradesh Administration vs. Tribhuban; Sita Ram & Ors. vs. Moti Lal Nehru Farmers Training Institute; Jaipur Development Authority vs. Ramsahai & Anr.; Ghaziabad Development Authority & Anr. vs. Ashok Kumar & Anr. and Mahboob Deepak vs. Nagar Panchayat, Gajraula & Aewnr.) 10. In a recent judgment authored by one of us (R.M. Lodha, J.) in the case of Jagbir Singh vs. Haryana State Agriculture Marketing Board and Anr., the aforesaid decisions were noticed and it was stated: (SCC pp. 330 & 335, Paras 7 & 14) “7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. * * * * * * * * * * 14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee”. 16. This Court has distinguished between a daily wager who does not hold a post and a permanent employee”. 16. In view of the aforesaid ratio propounded by the Hon’ble Supreme Court it emerges that in last few years it has been continuously held by the Hon’ble Supreme Court that the relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. 17. In the present case, as stated above, no conclusive evidence establishing the working days of the workman is produced on record. However, by way of drawing adverse inference, the learned Labour Court has believed that the workman has completed 240 days in a year preceding the date of his termination and even the workman himself has admitted in his deposition that he was gainfully employed. It is worthwhile to note at this stage that the order of termination came to be passed before about 24 years and in the interregnum, the workman was gainfully employed elsewhere and considering the time gap, he might have reached the age of superannuation and therefore no purpose would be served in reinstating him. Upon filing of present writ petitions, this Court stayed the execution and implementation of the common award dated 11.09.2004 passed by the learned Labour Court so far as granting the reinstatement of the workmen is concerned and therefore the workmen are not reinstated till date. Even otherwise the case of the workman also falls in the category of daily wager who was not holding a post of permanent employee. The case of one of the workmen viz. Deepakbhai L. Joshi squarely falls within the ambit of the ratio laid down by the Hon’ble Supreme Court in the aforesaid decision of Santosh Kumar Seal (Supra). 18. As discussed above, the learned Labour Court has committed manifest error in drawing adverse inference in the case of one of the workmen viz. Kishorbhai D. Joshi that he had completed continuous service of 240 days in a year preceding to the date of his termination, in absence of any documentary and/or oral evidence on the part of the said workman. Even Mr. Kishorbhai D. Joshi that he had completed continuous service of 240 days in a year preceding to the date of his termination, in absence of any documentary and/or oral evidence on the part of the said workman. Even Mr. Harshad K. Patel, learned advocate appearing on behalf of the respondent – workman is not in a position to dispute the above fact. 19. In the result, Special Civil Application No. 7579 of 2005 is allowed. The award dated 11.09.2004 passed by the learned Presiding Officer, Labour Court, Jamnagar in Reference (LCJ) No. 1991 of 1990 is hereby quashed and set aside. Interim relief, if any, stands vacated forthwith. Rule is made absolute. 20. Special Civil Application No. 7582 of 2005 is partly allowed. The award dated 11.09.2004 passed by the learned Presiding Officer, Labour Court, Jamnagar in Reference (LCJ) No. 1997 of 1990 is hereby modified by awarding a lumpsum compensation of Rs. 50,000/- (Rupees Fifty Thousand only) to the workman Deepakbhai L. Joshi in lieu of his reinstatement. The petitioners are hereby directed to make the above payment to the workman within a period of 3 months from today, failing which, it shall carry 9% interest from the date of award. Interim relief, if any, stands vacated forthwith. Rule is made absolute to the aforesaid extent.