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2020 DIGILAW 581 (RAJ)

Gudsingh v. Executive Engineer

2020-07-22

ASHOK KUMAR GAUR

body2020
JUDGMENT 1. The instant writ petition has been filed by the petitioner-workman challenging the award dt. 23rd December, 2016, whereby the termination of services of the petitioner vide order dt.lst September, 1992 has been found to be legal and the petitioner-workman has not been found to complete 240 days before termination of his services. 2. Learned counsel appearing for the petitioner has submitted that the petitioner was appointed as Baildar on 1st November, 1991 and he had continuously been working till termination of his service on 1st September, 1992 without compliance of provisions of Section 25F and 25G of the Industrial Disputes Act, 1947 (in short 'the Act of 1947'). The petitioner has pleaded in his petition that his working from 1st November, 1991 to 1st September, 1992 clearly proved that he had completed 240 days in the preceding calendar year but his services were terminated without paying compensation and no seniority list was published on the Notice Board and as such provision of Section 25G of the Act of 1947, was also violated. 3. Learned counsel appearing on behalf of the petitioner has drawn attention of this Court towards the application dt.9th February, 2005 which was filed before the Labour Court, wherein request was made to summon the documents which were in power and possession of the employer and as such muster roll from 1st November, 1991 to 31st August, 1992 and muster receipts/duty register, were sought to be summoned. 4. Learned counsel for the petitioner has also drawn attention of this Court towards the order-sheets of the Labour Court whereby on 1st July, 2009, the application of the petitioner-workman was accepted and direction was given to the employer to produce the relevant record and if the record was not available then the required affidavit was required to be filed. The Labour Court on 11th August, 2009 and on 30th September, 2009, recorded order-sheet that record was not produced and the matter was posted on 4th December, 2009 for final arguments after production of the record. 5. Learned counsel submitted that the employer did not produce the record and as such the Court below proceeded to decide the working of the petitioner and found that the petitioner had worked only for 221 days. 5. Learned counsel submitted that the employer did not produce the record and as such the Court below proceeded to decide the working of the petitioner and found that the petitioner had worked only for 221 days. Learned counsel submitted that the Labour Court in its finding has given incorrect details of working of the petitioner, as calculation of 221 days was only made from November, 1991 to August, 1992 and the petitioner's entire working has not taken into account and the Labour Court has also wrongly excluded counting of Sundays, as the petitioner had right to avail Sunday Leave and the same ought to have been counted. 6. Learned counsel for the petitioner further submitted that once the application for summoning the relevant record was filed and the employer did not produce muster roll and other documents, adverse inference ought to have been drawn against the employer as per Section 114 illustration (g) and Section 102 of the Evidence Act, 1872. 7. Learned counsel further submitted that the Labour Court has wrongly shifted the burden on the petitioner to prove that the petitioner did not file any proof of his working or any document like receipt of salary/wages or order of appointment or engagement for the period in question. 8. Learned counsel for the petitioner further submitted that the Apex Court has consistently laid down the law that for determining continuous service, non production of muster roll by the employer results into adverse inference against him. Learned counsel has relied on the judgments passed by the Apex Court in the case of Gauri Shanker Vs. State of Rajasthan reported in (2015) 12 SCC 754 ; M/s. Sri ram Industrial Enterprises Ltd. Vs. Mahak Singh & Ors. reported in 2007 AIR SCW 1712; State of Rajasthan & Anr. Vs. Judge Labour Court, Bharatpur & Anr. reported in 2007(1) DNJ (Raj.) 556. 9. Per Contra learned counsel for the respondent-State, Mr. Gajanand Mishra Manav, AGC has submitted that this Court need not interfere in the findings of fact recorded by the Labour Court. Learned counsel submitted that if the Labour Court has come to conclusion that the petitioner had not completed 240 days in the preceding 12 months from the date of alleged termination, the High Court may not substitute its own finding in the factual disputes. 10. Learned counsel submitted that if the Labour Court has come to conclusion that the petitioner had not completed 240 days in the preceding 12 months from the date of alleged termination, the High Court may not substitute its own finding in the factual disputes. 10. Learned counsel for the State has further submitted that the employment of the petitioner was in a scheme and the petitioner had left the job on his own and as such termination had taken place. Learned counsel submitted that the petitioner in absence of discharging his burden of proof, shows that he had not worked for 240 days in a year and relief in such situation cannot, be granted to a workman. Learned counsel submitted that filing of an affidavit or even giving evidence by the employee, which is the only statement in his favour, cannot be regarded as sufficient evidence. 11. Learned counsel for the respondents has placed reliance on the judgment passed by the Apex Court in the case of Range Forest Officer and Ors. Vs. S.T. Hadimani reported in AIR 2002 SC 1147 . Learned counsel further submitted that if at all this Court is reversing the findings with respect to alleged illegal termination of services of the workman, reinstatement cannot be a relief as has been prayed in the present writ petition and only suitable compensation looking to the length of the service, can be awarded by this Court. 12. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 13. This Court finds that application for summoning the record was filed before the Labour Court and employer did not produce the record nor filed any affidavit of the responsible officer that record was not available with them. This Court finds that non-production of the relevant record will result into drawing adverse inference against the employer and the Court in such situation is required to draw adverse presumption against the employer in terms of Section 114 Illustration (g) of the Evidence Act, 1872. 14. The Apex Court in the case of Gauri Shankar Vs. State of Rajasthan (supra) and in the case of M/s. Sriram Industrial Enterprises Ltd. Vs. Mahak Singh & Ors. 14. The Apex Court in the case of Gauri Shankar Vs. State of Rajasthan (supra) and in the case of M/s. Sriram Industrial Enterprises Ltd. Vs. Mahak Singh & Ors. (supra) has categorically laid down the principle that it is the employer who is in the possession of the record of employment of the employee and if the workman discharges initially onus by whatever documents in his custody to show his working of 240 days, non-production of attendance register and muster roll which is the best evidence is withheld, by the employer and the Court is left with no other option except to draw adverse inference. 15. This Court on the basis of law settled by the Apex Court in the present facts of the case is constrained to observe that the Labour Court has not gone into this important aspect of the matter and the burden has been shifted on the petitioner to prove that he had worked for 240 days and to the same effect, he was required to produce the evidence. 16. This Court finds that the Labour Court has relied upon the judgment as cited by learned counsel for the respondent Mr. Gajanand Mishra Manav, AGC, Range Forest Officer and Ors. vs. S.T. Hadimani (supra). 17. This Court has gone through the judgment cited by learned counsel for the respondents and finds that the Apex Court has held that filing of an affidavit of an employee is not enough or sufficient evidence to come to a conclusion that the workman had in fact worked for 240 days in a year. 18. The Apex Court has further held that if proof of receipt of salary or wages of 240 days or order or record of appointment or engagement in this regard is not produced by the workman then burden cannot be placed on the management to show that there was justification in termination of service without first determining on the basis of the cogent evidence that the workman had worked for more than 240 days in a year preceding his termination. 19. This Court finds that the issue before the Apex Court was not in respect of drawing adverse inference as no application was submitted by the employee to summon the record and as such the Apex Court has passed the aforesaid judgment. 20. 19. This Court finds that the issue before the Apex Court was not in respect of drawing adverse inference as no application was submitted by the employee to summon the record and as such the Apex Court has passed the aforesaid judgment. 20. This Court relying on the judgments passed by the Apex Court in the case of Gauri Shankar Vs. State of Rajasthan (supra); M/s. Sriram Industrial Enterprises Ltd. Vs. Mahak Singh & Ors. (supra), finds that if an application is filed for summoning the record by the employee and the same is not produced without any sufficient and cogent reasons, the Labour Court is required to draw adverse inference in such a situation. 21. This Court further finds that the Labour Court has counted 221 working days of the petitioner and even Sunday has been excluded in counting such 240 days. The exclusion of Sunday in counting 240 days, is also not correct appreciation of law. 22. This Court finds that the Labour Court has considered the working of the petitioner on the basis of certain receipts which were said to be hand receipts and only on the basis of such hand receipts by excluding public holidays and Sundays, the calculation could not have been made. This Court is constrained to observe that the Labour Court has recorded incorrect finding about working of the petitioner as well as the principles of law about the burden of proof, has also been wrongly applied on account of non production of documents, which are in power and possession of the employer. 23. This Court finds that the petitioner is alleged to have worked from 1st November, 1991 to 31st August, 1992 and granting of relief in the nature of reinstatement will not be in the fitness of things. Duration of working of the petitioner and long gap of the alleged termination of service in the year 1992 and reinstatement in the present time, will not be in the fitness of things and as such reinstatement cannot be a relief which can be granted to the petitioner in the present time. 24. Learned counsel for the respondent-State Mr. Duration of working of the petitioner and long gap of the alleged termination of service in the year 1992 and reinstatement in the present time, will not be in the fitness of things and as such reinstatement cannot be a relief which can be granted to the petitioner in the present time. 24. Learned counsel for the respondent-State Mr. Gajanand Mishra Manav, at this juncture submitted that though the petitioner is not entitled for any relief, however, if at all, relief is given to any employee after long gap of termination of his services, the Co-ordinate Bench of this Court in S.B.Civil Writ Petition No. 1040/2004 (Gajju Singh Vs. The Executive Engineer & Ors.) has decided the petition vide order dt. 1st August, 2019, and this Court after considering the law laid down by the Apex Court in the case of Jasmer Singh Vs. State of Haryana & Anr. reported in (2015) 4 SCC 458 ; Incharge Officer & Anr. Vs. Shankar Shetty reported in (2010) 9 SCC 126 ; Deputy Executive Engineer Vs. Kuberbhai Kanjibhai reported in (2019) 4 SCC 307 , has granted the relief of Rs. 1,00,000/- as compensation in lieu of reinstatement. 25. This Court considering all the facts of the present case, finds that finding of the Labour Court while passing the award dt. 23rdDecember, 2016 about working of the petitioner, is not correct and the same is required to be set aside. 26. This Court further finds that the petitioner is deemed to have completed 240 days in continuity before his retrenchment and considering the violation of Section 25F of the Act of 1947, decides the writ petition by awarding lump sum compensation of Rs. 1,50,000/- in lieu of reinstatement. 27. Accordingly, the present writ petition stands allowed. The compliance of this order by the respondents will be made within a period of two months from the date of receipt of the certified copy of this order.