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2017 DIGILAW 2571 (RAJ)

Jagdish v. Judge, Labour Court

2017-11-23

ARUN BHANSALI

body2017
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the award dated 7/11/2002 passed by the Labour Court, Bhilwara, whereby, the reference made to it has been answered in the manner that the petitioner is not entitled to any relief. 2. The petitioner raised a dispute inter alia with the averments that he was appointed as Beldar in the respondent department in August, 1987; he continued to serve the respondent till July, 1988 and completed more than 240 days, however, his services were terminated orally without complying with the mandatory requirements of Section 25F of the Industrial Disputes Act, 1947 ('the Act'). The dispute was referred to the Labour Court, Bhilwara by the appropriate Government. 3. It was inter alia claimed in the statement of claim by the petitioner-workman that he was engaged as Beldar in the month of August, 1987 and his services have been terminated in the month of July, 1988 without following due procedure. 4. The application was contested by the respondent by filing reply inter alia indicating that as the petitioner had worked for 107 days only during the period and voluntarily left the work, he was not entitled to any relief. The respondent in the reply gave muster roll number, number of working days and indicated that he had worked for 107 days only. 5. The petitioner filed an application for production of muster roll from August, 1987 to July, 1988 and claimed that he had worked for 263 days during the said period. 6. The Labour Court by its order dated 20/9/2001 directed production of muster roll, where after on 6/11/2001 it was noticed that the respondent had filed certain documents and rest of the documents were not available. 7. The petitioner filed his affidavit in evidence along with Schedule A indicating that he had worked for 264 days. Another Schedule was presented indicating the petitioner having worked for 225 days and 39 days were Government holidays and indicated the total as 264 days. 8. On behalf of the respondent affidavit in evidence was filed and it was reiterated that the workman had worked for 107 days. Both the deponents were cross examined. 9. Another Schedule was presented indicating the petitioner having worked for 225 days and 39 days were Government holidays and indicated the total as 264 days. 8. On behalf of the respondent affidavit in evidence was filed and it was reiterated that the workman had worked for 107 days. Both the deponents were cross examined. 9. The Labour Court after hearing the parties came to the following conclusion: ^^vr% ,sls rF;ksa ds vk/kkj ij ;g ugha ekuk tk ldrk fd izkFkhZ us vxLr 87 ls tqykbZ 88 rd 240 fnu ls vf/kd dke fd;k gks] cfYd ek= 107 fnu dke djuk tkfgj gSA vr% izkFkhZ fu;fer fu;kstu esa ugha gSA vr% izkFkhZ ,d ekg dk uksfVl ;k mlds cnys osru ,oa NaVuh eqvkotk ikus dk vf/kdkjh ugha gSA izkFkhZ dks lsok i`Fkd fd;k tkuk mfpr ,oa oS/k gSA vr% izklafxd fookn dk mRrj bl izdkj fn;k tkrk gS fd lgk;d vfHk;ark] lkoZftfud fuekZ.k foHkkx] mi[k.M&’kkgiqjk ¼HkhyokM+k½ }kjk muds Jfed Jh txnh’k] }kjk & la;qDr lfpo] lkoZ- fuekZ.k etnwj la?k ¼baVd½] HkhyokM+k dks fnukad 1-8-88 ls lsok ls i`Fkd djuk mfpr ,oa oS/k gSA Jfed fdlh jkgr ,oa jkf’k dks izkIr djus dk vf/kdkjh ugha gSA iapkV dh izfr jkT; ljdkj dks Hksth tk;sA** 10. It is submitted by learned counsel for the petitioner that the Labour Court committed error in rejecting the claim of the petitioner; the petitioner has specifically indicated the muster roll number along with days he had worked with the respondent Department, the respondent Department failed to produce the requisite muster rolls and, therefore, presumption needs to be drawn against the respondent in this regard and as the petitioner had completed 240 days, there was violation of provisions of Section 25F of the Act and the award passed by the Labour Court deserves to be set aside and claim made by the petitioner deserves to be allowed. 11. Learned counsel appearing for the respondent supported the award impugned. It was submitted that except for the affidavit filed by the petitioner, no material was placed to support the contention raised in the claim regarding having worked for 264 days and as the material was produced by the respondent indicating the petitioner having worked for 107 days only, the Labour Court was justified in rejecting the claim of the petitioner. 12. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. The petitioner in his affidavit claimed to have worked for 264 days and bifurcated the same by indicating 225 working days and 39 Government holidays. A perusal of Government holidays indicated by the petitioner in the Schedule shows that the petitioner has assumed Government holidays for two days if he had worked for less than 10 days, 3 days' holidays if he had worked for more than 10 days and based on that the Government holidays have been assumed. In the cross examination, the petitioner inter alia indicated as under: ^^dHkh 10 fnu dk dke Fkk rks 10 fnu gh dke djokrs FksA dke ugha gksrk Fkk rks gkftjh ugha Hkjrs FksA ;g lgh gS fd ftl fnu dke gksrk Fkk ml fnu dh gkftjh Hkjrs FksA** 14. In view of the above statement of the petitioner, it is apparent that Government holidays have been indicated in the Schedule based on assumption inasmuch as looking to the nature of work and the period he was engaged, it cannot be said that the number of holidays as claimed fell within the period he was engaged, as he was engaged intermittently. 15. Though it is well settled that Sundays and holidays which fell within the period a workman is engaged are required to be counted for calculating the period of 240 days, but in a case where a person has been engaged intermittently, the same cannot be assumed that if a person has worked for 7 days in a month there would be 02 holidays or if he has worked for 09 days and 12 days in a month intermittently there would be 03 holidays, as has been done by the petitioner for assuming 39 Government holidays. 16. As such the completion of 240 days even as per the calculation of the petitioner cannot be accepted. 17. In view of the above and the fact that the Labour Court based on the material available before it came to the conclusion that the averments made in the statement of claim were not established, no interference is called for in the award impugned under Article 227 of the Constitution of India. 18. Consequently, there is no substance in the writ petition, the same is, therefore, dismissed.