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Allahabad High Court · body

2019 DIGILAW 1837 (ALL)

State of U. P. v. Chhunna Lal

2019-07-31

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : Yogendra Kumar Srivastava, J. Heard Sri Sri Prakash Singh, learned Standing Counsel for the petitioners and Sri Manta Ram Gupta, learned counsel appearing on behalf of respondent no.1-workman. 2. The present petition seeks to challenge the award dated 10.04.2015 passed by the Labour Court, U.P., Jhansi in Adjudication Case No.03 of 2013. 3. The records of the case indicate that upon an industrial dispute having been raised by the respondent-workman a reference was made under Section 4K of the U.P. Industrial Disputes Act, 1947 (The Act, 1947) which was registered as Adjudication Case No.03 of 2013 before the Labour Court, U.P., Jhansi. The question which was referred for adjudication is as follows:- ^^D;k lsok;kstd }kjk vius Jfed Jh NqUukyky iq= Lo- Jh jkexksiky deZdkj dh lsok;sa fnukad 01-03-83 ls lekIRk fd;k tkuk mfpr rFkk@vFkok oS/kkfud gS\ ;fn ugha rks lEcfU/kr Jfed D;k ykHk@vuqrks"k ¼fjyhQ½ ikus dk vf/kdkjh gS rFkk vU; fdl fooj.k lfgr\^^ 4. The aforementioned reference which was with regard to the legality/validity of the termination of the respondent-workman w.e.f. 01.03.1983 was answered by the Labour Court in terms of the award dated 10.04.2015 wherein it was held that prior to the termination of the services of the respondent-workman the provisions of Section 6N of the Act, 1947 were not followed, and, accordingly, the termination dated 01.03.1983 was held to be illegal and invalid, and a direction was issued for reinstatement of the respondent-workman from the date of his termination i.e. 01.03.1983. The Labour Court declined to grant back wages, however, it was provided that the workman would be entitled to payment of full wages from the date of publication of the award. 5. Perusal of the records of the case indicates that as per the case set up by the respondent-workman in his written statement filed before the Labour Court he had claimed to have continuously worked for a period of two years as a daily-wager from 04.05.1981 to 28.02.1983 without any break and that his services were illegally terminated on 01.03.1983 without complying with the provisions of Section 6N of the Act, 1947. 6. A written statement was filed by the petitioners wherein it was stated that the respondent-workman had not worked for the period from 04.05.1981 to 28.02.1983 and in fact he had never worked with the petitioners' department in any capacity. 6. A written statement was filed by the petitioners wherein it was stated that the respondent-workman had not worked for the period from 04.05.1981 to 28.02.1983 and in fact he had never worked with the petitioners' department in any capacity. It was asserted that the workman had not completed 240 days of working in a calender year so as to claim that he was in continuous service. It was further stated that after the alleged termination said to have been made on 01.03.1983 the workman had remained silent for a long period of time and the reference which had been made in terms of the order dated 05.09.2011 was highly belated and as such the reference itself was bad in law. 7. In support of his case the respondent-workman filed his affidavit reiterating the stand taken by him in his written statement. Reliance was placed upon a letter dated 20.10.2011 said to have been issued by the Assistant Engineer of the Department to support his claim of having worked for the period in question. In his cross-examination it was categorically admitted by the respondent-workman that apart from the aforesaid letter dated 20.10.2011 there was no other documentary evidence to prove his working. 8. The petitioners in support of their case filed documentary evidence including copies of the muster rolls for the period from May, 1981 upto 28.02.1983 i.e. the period for which the workman had claimed to have worked with the Department. 9. The Labour Court though has referred to the copies of the muster rolls filed as documentary evidence by the petitioners which did not indicate the name of the respondent-workman at any place; however, proceeding to rely upon a letter dated 20.10.2011 which is said to have been issued by the Assistant Engineer of the Department in response to an R.T.I. Application claimed to have been filed by the respondent-workman, a finding has been returned that the workman had worked for a period of 240 days during the period from 04.05.1981 to 28.02.1983 and as such he was in continuous services and the provisions under Section 6N of the Act, 1947 having not been followed, the workman was entitled to grant of reinstatement. 10. 10. Contention of the learned Standing Counsel appearing for the petitioners is that the factum of engagement of the respondent-workman having been categorically denied by the petitioners in their written statement the burden of proof with regard to the working of the respondent-workman in the establishment for a period of 240 days in a calender year so as to establish his continuous working and claim the benefit of Section 6N of the Act was upon the workman, which burden the workman had failed to discharge. 11. As regards the letter dated 20.10.2011 which has been relied upon by the Labour Court, attention has been drawn to the Objections dated 11.09.2014 filed before the Labour Court on behalf of the petitioners wherein it had been stated that the letter dated 20.10.2011 bearing Letter No.341 was never issued by the department. It is submitted that the findings recorded by the Labour Court with regard to the respondent-workman having worked for a period of 240 days in a calender year is not based on any evidence available on record and as such the same is perverse and the award of the Labour Court is liable to be set aside. 12. Learned counsel appearing for the respondent-workman has tried to support the award of the Labour Court by relying upon the letter dated 20.10.2011 to submit that the factum of his working from 04.05.1981 to 28.02.1983 was proved and accordingly he had completed 240 days of working in a calender year so as to claim benefit of protection under Section 6N of the Act, 1947 and reinstatement with consequential benefits. 13. Heard the learned counsel for the parties and perused the record. 14. From a perusal of the records of the case it is demonstrated that no material evidence apart from the letter dated 20.10.2011 was filed by the respondent-workman to support his case of having continuously worked for the period in question so as to claim entitlement of protection of Section 6N of the Act, 1947. 14. From a perusal of the records of the case it is demonstrated that no material evidence apart from the letter dated 20.10.2011 was filed by the respondent-workman to support his case of having continuously worked for the period in question so as to claim entitlement of protection of Section 6N of the Act, 1947. The petitioner-establishment on the other hand had filed documentary evidence in the form of muster rolls for the periods (i) May, 1981 to December 1981, (ii) 1st January, 1982 to December, 1982 and (iii) 1st January, 1983 to 28.02.1983, which categorically demonstrated that the name of the respondent-workman did not find mention in the muster rolls and accordingly his working for the period in question was not proved. 15. The letter dated 20.10.2011 filed by the respondent-workman to make out a case was categorically denied by the petitioners and it was stated that the same was never issued by the department. The letter dated 20.10.2011, a copy whereof has been filed alongwith the supplementary affidavit filed by the petitioners demonstrates that the same is said to have been issued in response to an R.T.I. Application filed by the workman and the letter contains a clear recital that the information being furnished therein was based on the personal records of the officer who had issued the letter. Moreover, the aforementioned letter only contains reference to the working of the respondent-workman for a certain period of time and nowhere shows the actual number of days of his working on the basis of which an inference could be drawn with regard to the workman having completed 240 days in a calender year so as to claim continuous service. 16. It is legally well settled that the burden to prove the factum of 240 days of working in a calender year so as to claim benefit of being in continuous service as defined under Section 2(g) and consequently the protection of Section 6N of the Act, 1947, lies upon the workman. 17. In the case of Range Forest Officer vs. S.T. Hadimani, (2002) 3 SCC 25 , where a claim had been made by the workman regarding working for more than 240 days, it was held that the onus to prove the said fact was on the workman. The relevant observations made in the judgment are as follows:- "2. 17. In the case of Range Forest Officer vs. S.T. Hadimani, (2002) 3 SCC 25 , where a claim had been made by the workman regarding working for more than 240 days, it was held that the onus to prove the said fact was on the workman. The relevant observations made in the judgment are as follows:- "2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10-8-1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days, the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year. 3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar, (2001) 9 SCC 713 : 2002 SCC (L&S) 269 : JT (2001) 3 SC 326]. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today." 18. The aforementioned legal position was reiterated in the case of Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan & Anr., (2004) 8 SCC 161 , wherein it was held as follows:- "6. It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 : 2002 SCC (L&S) 367]. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. Even if that period is taken into account with the period as stated in the affidavit filed by the employer, the requirement prima facie does not appear to be fulfilled. The following period of engagement which was accepted was 6 days in July 1991, 15-1/2 days in November 1991, 15-1/2 days in January 1992, 24 days in February 1992, 20-1/2 days in March 1992, 25 days in April 1992, 25 days in May 1992, 7-1/2 days in June 1992 and 5-1/2 days in July 1992. The Labour Court demanded production of muster roll for the period of 17-6-1991 to 12-11-1991. The Labour Court demanded production of muster roll for the period of 17-6-1991 to 12-11-1991. It included this period for which the muster roll was not produced and came to the conclusion that the workman had worked for more than 240 days without indicating as to the period to which period these 240 days were referable." 19. Again in the case of Municipal Corporation Faridabad Vs. Siri Niwas, (2004) 8 SCC 195 , it was held, in the context of Section 25F of the Act, 1947 (containing provisions similar as under Section 6N of the Act, 1947), that the burden was on the workman to prove that he had worked for more than 240 days in the preceding one year prior to his retrenchment and the workman having not adduced any evidence with regard to the same the claim raised by him could not be allowed only on the basis of adverse inference drawn against the employer for not producing the muster rolls. The relevant observations made in the judgment are as follows:- "13. The provisions of the Indian Evidence Act, 1872 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 therefore 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. 14. For the said purpose it is necessary to notice the definition of "continuous service" as contained in Section 25-B of the Act. 14. 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 for 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 25-B 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. 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 did not even examine any other witness in support of his case. 15. 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 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. 16. No reason has been assigned by the High Court as to why the exercise of discretional jurisdiction of the Tribunal was bad in law. In a case of this nature, it is trite, the High Court exercising the power of judicial review, would not interfere with the discretion of a Tribunal unless the same is found to be illegal or irrational. x x x x x 19. Furthermore a party in order to get benefit of the provisions contained in Section 114 Ill. (g) of the Indian Evidence Act must place some evidence in support of his case. Here the Respondent failed to do so. x x x x x 21. ...The High Court, therefore, proceeded to pass the impugned judgment only on the basis of the materials relied on by the parties before the Tribunal. The High Court, in our opinion, committed a manifest error in setting aside the award of the Tribunal only on the basis of adverse inference drawn against the appellant for not producing the muster rolls." 20. The aforementioned position of law was restated in the case of M.P. Electricity Board Vs. Hariram, (2004) 8 SCC 246 , in the following terms:- "11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. Hariram, (2004) 8 SCC 246 , in the following terms:- "11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of Municipal Corpn., Faridabad v. Siri Niwas, (2004) 8 SCC 195 : JT (2004) 7 SC 248] wherein this Court disagreed with the High Court's view of drawing an adverse inference in regard to the non-production of certain relevant documents..." 21. The question of onus of proof regarding the factum of working was again considered in the case of Manager, Reserve Bank of India, Bangalore Vs. S. Mani & Ors., (2005) 5 SCC 100 and it was held that initial burden of proof is always on the workman to prove his working and that the onus of proof does not shift to the employer nor is the burden of proof on the workman discharged merely because the employer fails to prove a defence. The relevant observations made in the judgment are as follows:- "28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellant on the premise that they have failed to prove their plea of abandonment of service..." x x x x x "35. Only because the appellant failed to prove its plea of abandonment of service by the respondents, the same in law cannot be taken to be a circumstance that the respondents have proved their case." 22. The question of onus of proof and the evidence to be led again came up in the case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, (2005) 8 SCC 750 , and it was held that the burden to prove his working lies on the workman and it is for him to adduce evidence to prove the said factum and in a case if the evidence with regard to the same has not been led by the workman it would be held that he has failed to discharge the burden. It was only in a case where sufficient evidence was led by the workman that the Court could have drawn adverse inference against the other party. The relevant observations made in the judgment are as follows:- "18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of 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 the 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 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 25-B(1) of the Act. In the facts and situation and in the light of the law on the subject, we find that the respondent workman is not entitled to the protection or compliance with Section 25-F of the Act before his service was terminated by the employer. As regards non-compliance with Sections 25-G and 25-H suffice it to say that witness Vinod Misra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. As regards non-compliance with Sections 25-G and 25-H suffice it to say that witness Vinod Misra 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 workmen, 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 non-compliance with 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". 23. The question of burden of proof yet again came up for consideration in the case of R.M. Yellatti Vs. Assistant Executive Engineer, (2006) 1 SCC 106 , wherein it was reiterated that burden of proof lies on the workman and it is for him to adduce cogent evidence, both oral and documentary, and mere non-production of muster rolls per se will not be a ground to draw an adverse inference against the employer. The relevant observations made in the judgment are as follows :- "12. Now coming to the question of burden of proof as to the completion of 240 days of continuous work in a year, the law is well settled. In Manager, Reserve Bank of India v. S. Mani, (2005) 5 SCC 100 : 2005 SCC (L&S) 609] the workmen raised a contention of rendering continuous service between April 1980 to December 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The Tribunal based its decision on the management not producing the attendance register. In view of the affidavits filed by the workmen, the Tribunal held that the burden on the workmen to prove 240 days' service stood discharged. They merely contended in their affidavits that they had worked for 240 days. The Tribunal based its decision on the management not producing the attendance register. In view of the affidavits filed by the workmen, the Tribunal held that the burden on the workmen to prove 240 days' service stood discharged. In that matter, a three-Judge Bench of this Court held that pleadings did not constitute a substitute for proof and that the affidavits contained self-serving statements; that no workman took an oath to state that he had worked for 240 days; that no document in support of the said plea was ever produced and, therefore, this Court took the view that the workmen had failed to discharge the burden on them of proving that they had worked for 240 days. According to the said judgment, only by reason of non-response to the complaints filed by the workmen, it cannot be said that the workmen had proved that they had worked for 240 days. In that case, the workmen had not called upon the management to produce the relevant documents. The Court observed that the initial burden of establishing the factum of continuous work for 240 days in a year was on the workmen. In the circumstances, this Court set aside the award of the Industrial Tribunal ordering reinstatement. 13. In Municipal Corpn., Faridabad v. Siri Niwas, (2004) 8 SCC 195 : 2004 SCC (L&S) 1062] the employee had worked from 5-8-1994 to 31-12-1994 as a tubewell operator. He alleged that he had further worked from 1-1-1995 to 16-5-1995. His services were terminated on 17-5-1995 whereupon an industrial dispute was raised. The case of the employee before the Tribunal was that he had completed working for 240 days in a year; the purported order of retrenchment was illegal as the conditions precedent to Section 25-F of the Industrial Disputes Act were not complied with. On the other hand, the management contended that the employee had worked for 136 days during the preceding 12 months on daily wages. Upon considering all the material placed on record by the parties to the dispute, the Tribunal came to the conclusion that the total number of working days put in by the employee were 184 days and thus he, having not completed 240 days of working in a year, was not entitled to any relief. Upon considering all the material placed on record by the parties to the dispute, the Tribunal came to the conclusion that the total number of working days put in by the employee were 184 days and thus he, having not completed 240 days of working in a year, was not entitled to any relief. The Tribunal noticed that neither the management nor the workman cared to produce the muster roll w.e.f. August 1994; that the employee did not summon muster roll although the management had failed to produce them. Aggrieved by the decision of the Tribunal, the employee filed a writ petition before the High Court which took the view that since the management did not produce the relevant documents before the Industrial Tribunal, an adverse inference should be drawn against it as it was in possession of best evidence and thus, it was not necessary for the employee to call upon the management to do so. The High Court observed that the burden of proof may not be on the management but in case of non-production of documents, an adverse inference could be drawn against the management. Only on that basis, the writ petition was allowed holding that the employee had worked for 240 days. Overruling the decision of the High Court, this Court found on facts of that case that the employee had not adduced any evidence before the court in support of his contention of having complied with the requirement of Section 25-B of the Industrial Disputes Act; that apart from examining himself in support of his contention, the employee did not produce or call for any document from the office of the management including the muster roll (MR) and that apart from muster rolls, the employee did not produce the offer of appointment or evidence concerning remuneration received by him for working during the aforementioned period... 14. In Range Forest Officer, (2002) 3 SCC 25 : 2002 SCC (L&S) 367] the dispute was referred to the Labour Court as to whether the workman had completed 240 days of service. Vide award dated 10-8-1988, the Tribunal held that the services were wrongly terminated without giving retrenchment compensation. In arriving at this conclusion, the Tribunal stated that in view of the affidavit of the workman saying that he had worked for 240 days, the burden was on the management to show justification in termination of the service. Vide award dated 10-8-1988, the Tribunal held that the services were wrongly terminated without giving retrenchment compensation. In arriving at this conclusion, the Tribunal stated that in view of the affidavit of the workman saying that he had worked for 240 days, the burden was on the management to show justification in termination of the service. It is in this light that the Division Bench of this Court took the view that the Tribunal was not right in placing the burden on the management without first determining on the basis of cogent evidence that the workman had worked for 240 days in the year preceding his termination. This Court held that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination; that filing of an affidavit is only his own statement in his own favour which cannot be recorded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had worked for 240 days in a year. This Court found that there was no proof of receipt of salary or wages for 240 days; that the letter of appointment was not produced; that the letter of termination was not produced on record and, therefore, the award was set aside. 15. In Rajasthan State Ganganagar S. Mills Ltd., 2004 8 SCC 161 : 2004 SCC (L&S) 1055] the workman had alleged that he had worked for more than 240 days in the year concerned, which claim was denied by the management. The workman had merely filed an affidavit in support of his case. Therefore, the Division Bench of this Court took the view that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination. This Court observed that filing of an affidavit was not enough because the affidavit contained self-serving statement of the workman which cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that the claimant had worked for 240 days in a year. This Court observed that filing of an affidavit was not enough because the affidavit contained self-serving statement of the workman which cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that the claimant had worked for 240 days in a year. Further, this Court found that there was no proof of receipt of salary or wages for 240 days and, therefore, mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. On the facts of that case, the Court found that even if the period for which the workman had alleged to have worked was taken into account, as mentioned in his affidavit, still the said workman did not fulfil the requirement of completion of 240 days of service and, therefore, this Court set aside the award of the Labour Court. 16. In M.P. Electricity Board, (2004) 8 SCC 246 : 2004 SCC (L&S) 1092] the workmen were engaged by the Board on daily wages for digging pits to erect electric poles. It was the case of the Board that on completion of the project, the employment was terminated and whenever a similar occasion arose for digging pits, the workmen were re-employed on daily wages and, therefore, their employment was not permanent in nature nor had the workmen completed 240 days of continuous work in a given year. The project jobs came to an end in 1991 and the workmen were never re-employed by the Board. Being aggrieved by the said non-employment, the workmen filed applications under the M.P. Industrial Relations Act seeking permanent employment, primarily on the ground that they have completed 240 days in a year and their discontinuation of service amounted to retrenchment without following the legal requirements. The Board denied the allegations made in the application before the Labour Court. An application was moved before the Labour Court by the workmen seeking direction to the Board to produce the muster roll for the period concerned. However, no other material was produced by the workmen to establish the fact that they had worked for 240 days continuously in a given year. Some of the workmen were also examined before the Labour Court. However, no document was produced in the form of letter of appointment, receipt indicating payment of salary, etc. However, no other material was produced by the workmen to establish the fact that they had worked for 240 days continuously in a given year. Some of the workmen were also examined before the Labour Court. However, no document was produced in the form of letter of appointment, receipt indicating payment of salary, etc. After examining the entry in the muster rolls, the Labour Court came to the conclusion that the workmen had not worked for 240 days continuously in a given year, hence, they could not claim permanency nor could they term their non-employment as retrenchment. Aggrieved by the award of the Labour Court, the workmen preferred an appeal before the Industrial Court at Bhopal which took the view that since the Board has failed to produce the entire muster roll for the year ending 1990, an adverse inference was required to be drawn against the Board and solely based on the said inference, the Industrial Court accepted the case of the workmen that they had worked for 240 days continuously in a given year. Accordingly, the Industrial Court granted reinstatement to the workmen with 50% back wages. Drawing of such an adverse inference was challenged before this Court by the M.P. Electricity Board. In the light of the aforestated facts, this Court opined that the Industrial Court or the High Court could not have drawn an adverse inference for non-production of the muster rolls for the years 1990 to 1992, particularly in the absence of a specific plea by the claimants that they had worked during the period for which muster rolls were not produced. This Court observed that the initial burden of establishing the factum of their continuous work for 240 days in a year was on the workmen and since that burden was not discharged, the Industrial Court and the High Court had erred in ordering reinstatement solely on an adverse inference drawn erroneously. 17. Analysing 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 earners, 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 (the 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 the 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 the facts of each case." 24. After referring to earlier judgments on the issue of onus of proof, a similar view was taken in the case of Ranip Nagar Palika Vs. Babuji Gabhaji Thakore & Ors., (2007) 13 SCC 343 . The relevant observations made in the judgment are as follows:- "8. ...the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer." 25. The relevant observations made in the judgment are as follows:- "8. ...the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer." 25. In the context of burden of proof requiring 240 days continuous service and drawing of an adverse inference, reference may also be had to the judgment in the case of Sub-Divisional Engineer, Irrigation Project, Yavatmal Vs. Sarang Marotrao Gurnule, (2009) 120 FLR 114 (Bom.H.C.). "21. The next question is how the workman is expected to discharge this burden Does it follow from the observations in the judgments quoted above (underlined for the sake of convenience) that a workman is expected to tender a particular quantum of evidence, or to examine a particular number of witnesses in support of his plea The Evidence Act, which does not apply to matter under the Industrial Disputes Act, too does not lay down that any particular number of witnesses must be examined to prove a particular fact. A fact is held as proved when a Judge upon considering the matter before him either believes it to exist or considers its existence so probable that a man of ordinary prudence would believe that it exists. Just as it would be futile to expect an employer to prove a non-existent fact, namely that a workman had not worked for 240 days, it would be futile to expect a workman to produce non-existent evidence. The best evidence rule would mandate that if the workman has in his possession any documentary evidence which would support his word on oath, he must produce such evidence, and, if he is not doing so, it would result in discrediting his word. The observations of the Apex Court that in addition to his own word, the workman must put in something more has to be read with this caveat. The difficulties and dangers in examining another workman in support of his own claim may be imagined. Ordinarily out of fear of reprisal a workmen who is already in employment is unlikely to step into the witness box to support the case of a colleague who has been thrown out. The difficulties and dangers in examining another workman in support of his own claim may be imagined. Ordinarily out of fear of reprisal a workmen who is already in employment is unlikely to step into the witness box to support the case of a colleague who has been thrown out. Workman's examining another workman who has been similarly thrown out would not cut ice with the Court because the Court may feel that two lies do not make one truth. Therefore, ultimately in the matter of appreciation of evidence, it is for the Judge who sees the parties in person and receives their evidence to decide whether he would believe them or not. Whether burden on workman is discharged by him or not would have to be decided by applying law declared in following few sentences from para 17 in judgment of three-Judge Bench in R.M. Yellati v. The Asstt. Executive Engineer (supra), which we wish to again reproduce, for, there would be no clearer pronouncement on the subject at pp. 448 & 449 of 2006 (1) LLJ 442 . "17. 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 earners, 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 (the 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 the 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. 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 the facts of each case." A careful re-reading of this passage would show that the Court does not hint at necessity of examining anyone in addition to the workman, while at the same time saying that affidavit alone would not be sufficient. What is expected of workman is to tender cogent evidence, by stepping in the witness box (and thereby allowing the truth of his version to be tested by cross-examination)." 26. The legal position with regard to the burden of proof and onus is well settled and it has been consistently held that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. In this regard reference may be had to the judgment in the case of Haridwar Vs. Smt. Kulwant, (2013) 6 ADJ 485 , wherein it was held as follows:- "12. In my view, learned counsel for the appellant is misconstruing the concept of term "burden of proof" and "onus" by identifying the two as synonymous. The onus probandi i.e. "Burden of proof" lies upon a person who is bound to prove the fact and it never shifts. 13. Section 101 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") talks of burden of proof, and says: "Burden of proof.--Whoever desires any 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. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 14. The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 14. The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The provision is based on the rule, ie incumbit probatio qui dicit, non qui negat. In Constantine Line v. I S Corpn, (1941) 2 AllER 165, Lord Maugham said; "It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons." 15. A person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. Whoever desires a Court to give judgment, dependent on the existence of facts which he asserts, must prove that those facts exist. The distinction between "burden of proof" and "onus" is that the former lies upon the person and never shifts but the "onus" shifts. Shifting of onus is a continuous process in the evaluation of evidence. For example, in a suit for possession, based on title once the plaintiff is able to create a high degree of probability so as to shift the onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of plaintiff's title. 16. The above distinction between "burden of proof" and "onus" of proof has been explained in A.Raghavamma v. A. Chenchamma, AIR 1964 SC 136 , followed in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752 . 17. Section 102 of Act, 1872 says that burden of proof in a suit would lie on a person who would fail if no evidence at all were given on either side. Here it is not degree of proof but the onus to lead evidence i.e. obligation to begin to prove a fact. 17. Section 102 of Act, 1872 says that burden of proof in a suit would lie on a person who would fail if no evidence at all were given on either side. Here it is not degree of proof but the onus to lead evidence i.e. obligation to begin to prove a fact. The burden of proof as such has not been defined in the Act but looking to the substance and the context and spirit, it can be said that burden to establish case, loosely, can be said to be burden of proof. 18. For applying above provision in the case in hand, there can be no manner of doubt in holding that burden of proof lies upon the plaintiff. In the case in hand, to prove that sale deed in question suffers an infirmity, justifying its cancellation, as pleaded in the plaint and to prove those facts, burden lies upon plaintiff. But then it has to be understood that there is a distinction between "burden of proof" as a matter of law and pleading and as a matter of adducing evidence. In the first sense, the burden is always constant but burden in the sense of adducing evidence shifts from time to time, having regard to evidence adduced or the presumption of fact or law raised in favour of one or the other. On this aspect, more light emanates when we go through Sections 103 and 104 of Act, 1872, which read as under: "S. 103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person." S. 104. Burden of proving fact to be proved to make evidence admissible.--The burden of proving any fact necessary to be provided in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence." 27. In the case of Rangammal Vs. Burden of proving fact to be proved to make evidence admissible.--The burden of proving any fact necessary to be provided in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence." 27. In the case of Rangammal Vs. Kuppuswami & Anr., (2011) 12 SCC 220 , referring to Section 101 of the Evidence Act, it was held that the burden of proving a fact always lies upon the person who asserts the fact and until such burden is discharged, the other party is not required to be called upon to prove his case. The relevant observations made in the judgment are as follows:- "21. Section 101 of the Evidence Act, 1872 defines "burden of proof" which clearly lays down that: "101. Burden of proof.--Whoever desires any 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. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party." 28. The burden of proof is thus the legal obligation on a party to prove the allegation made by him, and is often associated with the maxim 'Semper necessitas probandi incumbit ei qui agit' which means the burden of proof is on the claimant. 29. The essential distinction between "burden of proof" and "onus of proof" is legally well settled. The burden of proof lies upon the person who has to prove a fact and it never shifts; however the shifting of onus of proof is a continuous process in the evaluation of evidence. In this regard reference may be had to the judgment in the case of A. Raghavamma and another Vs. A. Chenchamma & Anr., AIR 1964 SC 136 wherein it was held as follows:- "12. In this regard reference may be had to the judgment in the case of A. Raghavamma and another Vs. A. Chenchamma & Anr., AIR 1964 SC 136 wherein it was held as follows:- "12. ...There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence..." 30. The aforementioned legal position has been discussed in a recent judgment of this Court in the case of M/s Triveni Engineering And Industries Ltd. Vs. State of U.P. & Ors., Writ C No.60572 of 2011, decided on 31.07.2019. 31. In the instant case the aforementioned burden of proof having not been discharged by the respondent-workman the finding recorded by the Labour Court with regard to the workman having been completed 240 days in a calender year so as to claim entitlement of the protection under Section 6N of the Act, 1947 is not supported from the records and the same being contrary to the material evidence which is available on record the finding cannot be legally sustained. The respondent-workman having not been able to prove the factum of his continuous service he was not entitled to benefit of the protection of Section 6N of the U.P. Industrial Disputes Act, 1947 and to the reliefs which have been granted by the Labour Court. 32. The award of the Labour Court is thus legally unsustainable and is accordingly set aside. 33. The writ petition is allowed in the aforesaid terms.