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2016 DIGILAW 563 (RAJ)

Girraj v. Mayor, Nagar Nigam, Jaipur

2016-04-22

DINESH CHANDRA SOMANI, MOHAMMAD RAFIQ

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ORDER : 1. This appeal is directed against the judgment dated 15.01.2016 passed by the learned Single Judge where by writ petition filed by the appellant-workman has been dismissed. 2. In the aforesaid writ petition, the appellant challenged the award dated 16.06.2014 passed by the Labour Court-I, Jaipur (for short 'the Labour Court'), which answered the reference against the appellant-workman on a dispute as to the validity of the termination of services of the appellant-workman. 3. The appeal is time barred, having been filed with delay of 20 days. However, for the reasons stated in the application under Section 5 of the Limitation Act filed by the appellant, the application is allowed and the delay in filing the appeal is condoned and we have heard the matter on merits. 4. Mr. Nawal Singh Sikarwar, learned counsel for the appellant cited judgment of the Supreme Court in Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda, (2010) 1 SCC 47 to argue that burden is on the management to prove that the appellant-workman did not work for 240 days in a calendar year preceding the date of his retrenchment. Learned counsel submitted that initial appointment of the appellant was made on 01.01.1997 and his termination was made on 31.03.1999. This fact was fully proved by the evidence of the appellant. Learned counsel read out before the Court para 9 of the award wherein he has mentioned the names of several other workmen, engaged with him, were not removed. He was paid monthly wages and the officials of the Nagar Nigam used to obtain his signatures against the payment on the receipt. Learned counsel submitted that the Labour Court has passed two contradictory awards while in the case of the appellant, it has answered the reference in negative against him but in the case of his fellow workman, Rajendra Sharma, the reference has been answered in affirmative in his favour with direction for payment of Rs. 80,000/- as lump sum compensation in lieu of reinstatement because by the time award was passed, he had died. 5. Perusal of the award passed by the Labour Court indicates that the appellant-workman was not engaged by the Nagar Nigam, but rather was employee of Respondent No. 5, Pradeep Jain, who was impleaded as party respondent by the appellant before the Labour Court. 5. Perusal of the award passed by the Labour Court indicates that the appellant-workman was not engaged by the Nagar Nigam, but rather was employee of Respondent No. 5, Pradeep Jain, who was impleaded as party respondent by the appellant before the Labour Court. Even then, in the evidence before the Labour Court, the appellant in his statement maintained that he did not know Pradeep Jain or any firm by the name of M/s. P.S. Enterprises. He was informed by the officials of the Nagar Nigam to approach Pradeep Jain and therefore, he was impleaded as party before the Labour Court and that he did not produce any pay slip in the evidence. He has also admitted that he has received wages for earlier period but the wages for the period from January, February and March, 1999 were not paid and that he worked on the basis of daily work slip. Evidence produced on behalf of the Nagar Nigam shows that the appellant was not engaged by them and the appellant did not work for 240 days in a calendar year preceding the date of his retrenchment. There was no relation of master and servant between the appellant-workman and the respondent-management. Appointments in the Nagar Nigam are made as per the relevant rules after inviting applications from eligible candidates through notice published in the newspaper. Cited judgment of the Supreme Court in Director, Fisheries Terminal Division (supra) was dealing with regard to burden of proof wherein it has been held that initial burden is on workman to prove that he completed 240 days of service and it shifts to employer when workman has deposed from the witness box in support of his claim. In that case it was further held that when burden of proving 240 days service was discharged by workman by his deposing from witness box and the department failed to discharge its burden it that case. But in the present case it cannot be held that initial burden was discharged by the appellant because the appellant-workman himself came with a case that he was engaged by Pradeep Jain, Contractor, who was awarded certain contracts by the Nagar Nigam. If that was the case, there was no relation of employee and employer between the appellant and the respondent-Nagar Nigam. If that was the case, there was no relation of employee and employer between the appellant and the respondent-Nagar Nigam. Had it been so, there was no occasion for the appellant-workman to implead Pradeep Jain as Respondent No. 5 before the Labour Court. Award passed in the case of Rajendra Sharma with which the appellant is claiming parity is of no avail to him because in that case Pradeep Jain was Respondent No. 5, but he filed an application before the Labour Court for summoning the record. The Labour Court by its order directed Nagar Nigam to produce the record. The Nagar Nigam failed to produce the record and the Labour Court drew adverse inference against them that had the record been produced, it would have proved working of the workman Rajendra Sharma for 240 days in a calendar year preceding the date of his retrenchment. Moreover, Rajendra Sharma, who initiated the proceedings before the Labour Court, had died and therefore, instead of directing his reinstatement, the Labour Court directed the management to pay a sum of Rs. 80,000/- as lump sum compensation in lieu thereof. Case of the present appellant is different because in this case, no application for summoning the record was filed and therefore, no order was passed. Learned Single Judge in the impugned judgment has distinguished the judgment of the Supreme Court in Director, Fisheries Terminal Division (supra) and has held that it was based on earlier judgment of the Supreme Court in Municipal Corporation Faridabad v. Sri Niwas, (2004) 8 SCC 195 , which judgment was considered by the Supreme Court in its subsequent judgment in the case of Surendernagar District Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC 750 wherein it was held that burden of proof lies on workman to show that he had worked continuously for 240 days in a calendar year preceding to his alleged retrenchment. It is for the workman, apart from examining himself, to prove factum of his being in employment. 6. In view of above, we do not find any illegality or infirmity in the judgment passed by the learned Single Judge. The appeal, being devoid of merits, is dismissed. 7. Stay Application No. 3721/2016 also stands dismissed.