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Rajasthan High Court · body

2015 DIGILAW 253 (RAJ)

Bal Kishan Sharma v. Judge, Labour Court, Bikaner

2015-01-28

SANDEEP MEHTA

body2015
ORDER The petitioner has approached this Court by way of the instant writ petition seeking the following relief:- “(A) the impugned order dated 8th August, 2002 may kindly be quashed and set aside; and consequent to aforesaid by allowing this writ petition respondents may kindly be directed to pay to the petitioner the amount due to him and as prayed in application under Section 33C(2) of the Industrial Disputes Act;” Facts in brief are that the petitioner was working as a daily wage/casual employee in the respondent Rajasthan Agriculture University, Bikaner (hereinafter referred to as R.A.U.). He was retrenched without following the mandatory procedure prescribed under the Industrial Disputes Act upon which he raised an industrial dispute. The Labour Court, Bikaner accepted the claim filed by the petitioner by order dated 20.12.1993 and quashed the termination of the petitioner from service and directed the respondent R.A.U. to reinstate him with full back wages and continuity in service. It was further directed that if the employer failed to make payment of the dues as directed within a period of three months from the date of the award, the amount would carry interest @ 10% per annum. The petitioner claims that he was reinstated in pursuance of the Tribunal’s award on 21.5.1994. However, the amount as directed to be paid to the petitioner in terms of the Tribunal’s award was not reimbursed on which he filed an application under Section 33C(2) of the Industrial Disputes Act in the Labour Court, Bikaner for enforcing the award. Specific facts and figures were pleaded by the petitioner regarding the salary drawn by him before his retrenchment based on calculations made on basis of facts available with him. He claimed a total sum of Rs. 1,53,432.70 and the interest accrued thereupon as salary/emoluments for the period between the date of his retrenchment to the date of his actual reinstatement. The respondents filed a reply to the said application which has been placed on record as Annexure-3 denying the averments made in the claim application. However, the amount which the petitioner claimed to be receiving as salary on the date of his retrenchment was not specifically disputed. Evidence was led on behalf of both the parties before the Tribunal. The petitioner stuck to the averments made in the application while leading evidence before the Tribunal. A chart Ex. However, the amount which the petitioner claimed to be receiving as salary on the date of his retrenchment was not specifically disputed. Evidence was led on behalf of both the parties before the Tribunal. The petitioner stuck to the averments made in the application while leading evidence before the Tribunal. A chart Ex. W-19 was proved by him to establish the calculation and quantum of arrears to which he was entitled. In counter, one Vijay Kumar Bhatnagar was examined on behalf of the University. In his affidavit nothing was stated about the salary last paid to the petitioner as on the date of his retrenchment but a bare denial was offered to the effect that the petitioner was not entitled to receive the sum of Rs.1,53,432.70 as stated in the application. In cross examination, the witness was confronted with the chart Ex.W-19 pertaining to the salary last drawn by the petitioner but and he feigned ignorance. The relevant portion of his cross examination is quoted below for ready reference:- ^^izn’kZ Mcyw&19 esa of.kZr jkf’k gekjs vkfQl ls tkWp ds ckn gh eSsa dg ldrk gWw fd ;g jkf’k ckyfd’ku ikus dk vf/kdkjh gS ;k ughaA^^ The Tribunal, however, dismissed the application vide order Annex.6 dated 8.8.2002 which is under challenge in this writ petition. The Tribunal held that the petitioner failed to establish by proper evidence the exact salary being drawn by him on the date of his retrenchment. As such the application was dismissed for lack of particulars. Mr. Saluja, learned counsel for the petitioner contends that a chart Ex.W-19 mentioning the complete particulars of the pay etc. being drawn by the petitioner on the date of his retrenchment was submitted on record along with the application u/s. 33C(2) of the I.D.Act. During the course of the arguments, learned counsel has shown to the Court an order dated 18.7.1989 issued by the respondent University whereby extension was given to the petitioner and other similar employees who were employed by University on daily wage basis and the petitioner’s pay was fixed at Rs. 880/-per month. Mr. Saluja submits that the salary was required to be revised when the 4th Pay Commission came into force and thus the calculation chart Ex. W-19 submitted by the petitioner in order to substantiate the prayer made in the application was fit to be accepted. 880/-per month. Mr. Saluja submits that the salary was required to be revised when the 4th Pay Commission came into force and thus the calculation chart Ex. W-19 submitted by the petitioner in order to substantiate the prayer made in the application was fit to be accepted. He further contends that the respondents were seized of the documents and record pertaining to the petitioner’s last drawn pay as on the date of his retrenchment. He contends that if at all the respondents were desirous of rebutting the petitioner’s claim, in such a situation it is they who were required to produce the relevant record for the Tribunal’s perusal. He contends that failure on part of the respondents to controvert the averments made in the application by producing the record required that adverse inference should have been drawn against them. He, therefore, prays that the writ petition deserves to be accepted and the respondents be directed to make payment of the amount due to the petitioner with interest accrued thereupon till date. Per contra Mr.Shishodia, counsel for the respondent University vehemently opposed the submissions advanced by the counsel for the petitioner. However, he candidly conceded that on previous dates of hearing and in pursuance of this Court’s orders dated 5.12.2014 and 15.12.2014, the officer-in-charge of the University was directed to calculate the petitioner’s dues from the record available with the university and to place the exact figure of the amount due to the petitioner on record. However, today, during the course of the arguments, he stated that he has been instructed that the University does not propose to make any payment to the petitioner. Heard and considered the arguments advanced at the bar and perused the material available on record. The fact that the petitioner is entitled to receive the dues of salary from the date of his retrenchment to his reinstatement is not disputed because the award to this effect passed by the Tribunal in the petitioner’s favour has attained finality. During pendency of the writ petition, the petitioner was reinstated in service and has also been regularized. In order to substantiate the claim for receiving the arrears in pursuance of the Tribunal’s award, the petitioner made specific pleadings in the application under Section 33C(2) of the Act and supported the same with a calculation chart of the salary due to him over the relevant period being document Ex.W-19. In order to substantiate the claim for receiving the arrears in pursuance of the Tribunal’s award, the petitioner made specific pleadings in the application under Section 33C(2) of the Act and supported the same with a calculation chart of the salary due to him over the relevant period being document Ex.W-19. The respondent University was possessed of all the documents & record which would have been germane to show and establish the exact figures of salaries being paid to the casual employees from the date of the petitioner’s retrenchment to the date of his reinstatement. The order dated 18.7.1989 which has been shown to the Court during the course of arguments depicts that as many as 26 casual employees working on the post of L.D.C. were given extensions on a fixed enhanced salary of Rs. 880/-per month with effect from the date of the said order. Before this order was passed, the petitioner was drawing salary of Rs. 461/- per month. It is claimed and rightly so that the salaries were revised pursuant to coming into force of the 4th Pay Commission. In reply to the application submitted under Section 33C(2) of the I.D.Act, the Respondent University made a bald denial but chose not to place before the Tribunal the record of salary which was admittedly in its possession. The petitioner’s specific pleading regarding the salary drawn by him was not pertinently controverted. The respondent University was as a matter of fact, under an obligation to place on record the vouchers etc. in its possession to satisfy the Tribunal as to what actually was the salary being paid to the petitioner on the date of his retrenchment and the salaries thereafter paid to the similar casual employees till the date of the petitioner’s reinstatement. The University’s witness was confronted with the chart Ex. W-19 (supra) and he stated that the figures and computations mentioned therein could be verified from the office. Chapter VII of the Evidence Act deals with the burden of proof. As per Section 101 of the Evidence Act, whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The petitioner desired the Tribunal to give a judgment regarding his legal right to receive the arrears of salary in pursuance of the Tribunal’s earlier order dated 20.12.1993. The petitioner desired the Tribunal to give a judgment regarding his legal right to receive the arrears of salary in pursuance of the Tribunal’s earlier order dated 20.12.1993. The existence of the legal right already stood pronounced in the petitioner’s favour when his claim was accepted by the Tribunal by order dated 20.12.1993. The subsequent application under Section 33C(2) of the I.D.Act was simply a consequential execution proceeding. The petitioner proved the facts narrated in his application u/s. 33C(2) of the I.D.Act by leading oral evidence as per Sections 59 & 60 of the Evidence Act. Thus, the petitioner discharged the burden of proof by making a specific averment in his application regarding the entitled amount and satisfied the requirement of Section 101 of the Evidence Act. The burden thereafter shifted to the University to rebut and disprove the said fact. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Obviously and admittedly, the record pertaining to the petitioner’s last drawn salary and the salary which the University gave to other similar casual employees during the period between the petitioner’s retrenchment uptill his reinstatement was in the University’s possession and thus this fact was a fact especially within the knowledge of the University. This conclusion is fortified from the aforequoted admission of the university’s witness. Therefore, if at all the University was desirous of rebutting the petitioner’s prayer, then by virtue of Section 106 of the Evidence Act it was required of the University to produce the record available with it and discharge the burden. As the record was not produced, by necessary implication, it has to be presumed that the petitioner’s averments and evidence remained uncontroverted and have to be accepted as such. The failure of the respondent University in producing the relevant record would require adverse inference being drawn against the employer University. As an upshot of the above discussion, this Court is of the firm opinion that the order Annexure-6 dated 8.8.2002 passed by the Tribunal rejecting the petitioner’s application under Section 33C(2) of the I.D.Act is illegal and bad in the eye of law and cannot be sustained. Resultantly, the writ petition deserves to be and is hereby allowed. As an upshot of the above discussion, this Court is of the firm opinion that the order Annexure-6 dated 8.8.2002 passed by the Tribunal rejecting the petitioner’s application under Section 33C(2) of the I.D.Act is illegal and bad in the eye of law and cannot be sustained. Resultantly, the writ petition deserves to be and is hereby allowed. The respondents are directed to make payment of the total dues as claimed by the petitioner in his application under Section 33C(2) of the I.D. Act applying interest @ 10% till the date of actual payment as directed by the Tribunal in its order dated 20.12.1993 within a period of three months from the date of this order failing which the interest shall stand enhanced to 12% p.a. No order as to cost.