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2021 DIGILAW 1577 (RAJ)

Mining Engineer v. Damodarlal

2021-08-26

INDERJEET SINGH

body2021
ORDER 1. Instant writ petition has been filed by the petitioner (hereinafter to be referred as 'Employer') challenging the Award dated 28.03.2019 passed by Industrial Tribunal & Labour Court, Alwar (hereinafter to be referred as the 'Tribunal') in Case LCR-136/2006 (Old No.330/99) whereby the Tribunal while holding the alleged termination of the respondent (hereinafter to be referred as 'workman') to be invalid, directed for his reinstatement with continuity of service along with 25% back wages from the date of termination to the date of award i.e. from 24.09.1991 to 28.03.2019. 2. Brief facts of the case are that the workman in his statement of claim averred that he was engaged as a labour by the employer on 01.11.1990 and continuously worked upto 24.09.1991. It was also stated by him that neither any notice of terminating his services nor any amount/compensation in lieu thereof was given to him. It was also averred that along with the workman certain other persons were also engaged, but only the services of the workman were terminated and before terminating his services no opportunity of hearing was afforded to him. It was also stated that the employer apart from violating the principles of justice has also violated the provisions of Sections 25F & 25G of the Industrial Disputes Act, 1947 (hereinafter to be referred as the 'Act of 1947') and lastly it was prayed that while declaring the termination of the workman as illegal & invalid, the employer be directed to reinstate him with continuity of service with all consequential benefits. 3. The employer filed reply to the statement of claim and stated that the workman was engaged for the work of typist/ stenographer on daily wages of Rs.23.50 vide order no.204 dated 01.11.1990 for a period of three months or till the regularly selected candidates are available and thus the workman was engaged on alternative basis and thereafter no order extending his services was passed. It was also stated by the employer that since no further approval/sanction was received from the Directorate (Mines) and Geology Department, therefore, vide order no.136 dated 12.09.1991, the services of the workman were terminated with immediate effect. It was further stated that the workman is not entitled to any relief or compensation as he was neither temporary nor permanent employee. It was also stated by the employer that since no further approval/sanction was received from the Directorate (Mines) and Geology Department, therefore, vide order no.136 dated 12.09.1991, the services of the workman were terminated with immediate effect. It was further stated that the workman is not entitled to any relief or compensation as he was neither temporary nor permanent employee. It was further averred that the workman was engaged for a particular period and on expiry of the particular period since there was no order of extension, therefore, services of the workman automatically came to an end and while denying all the averments made in the statement of claim, it was prayed that the claim of the workman be rejected. 4. On behalf of the workman, the affidavit of workman himself (AW-1) was produced and no documentary evidence was produced by the Workman while from the side of the employer affidavit of NAW-1 Pratap Singh Meena, was produced in evidence and in documentary evidence the documents D-l to D-11 were produced. 5. Counsel for the employer submitted that the workman was engaged for the work of typist/stenographer only for a fixed period of three months and since the sanction/approval was not granted by the Directorate (Mines) and Geology Department for extending his term, the services of the workman automatically came to an end and thus the workman had not continuously worked for a period of 240 days preceding his termination, therefore he is not entitled to any relief. Counsel further submits that the workman was engaged for a particular period and no person other than the workman was engaged by the employer, therefore the findings recorded by the learned Tribunal regarding violation of the provisions of the Act of 1947 are perverse and lastly prayed that the award passed by the learned Tribunal be quashed and set aside. 6. In support of the contentions, counsel for the employer relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Krishna Bhagya Jal Nigam Ltd. Vs. Mohd. Rafi, reported in (2006) 9 SCC 697 , where in paras-8 & 9 it has been held as under: - 8. In Manager, Reserve Bank of India Vs. 6. In support of the contentions, counsel for the employer relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Krishna Bhagya Jal Nigam Ltd. Vs. Mohd. Rafi, reported in (2006) 9 SCC 697 , where in paras-8 & 9 it has been held as under: - 8. In Manager, Reserve Bank of India Vs. S. Mani a three-judge Bench of this Court again considered the matter and held that the initial burden of proof was on the workman to show that he had completed 240 days of service. The Tribunal's view that the burden was on the employer was held to be erroneous. In Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh it was held as follows: (SCC pp. 484-85, para 13) "13. So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officer v. S.T. Hadimani the onus is on the workman." "The position was examined in detail in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh and the view expressed in Range Forest Officer, Siri Niwas, M.P. Electricity Board cases was reiterated." 9. In R.M. Yellatti v. Asstt. Executive Engineer the decisions referred to above were noted and it was held as follows: (SCC p. 116, para 17) "17. Analyzing 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. 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. 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 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 interefere 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. The above position was again reiterated in ONGC Ltd. v. Shyamal Chandra Bhowmik and Chief Engineer, Ranjit Sagar Dam vs. Sham Lal. 7. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Haryana State F.C.C.W. Store Ltd. Vs. Ram Niwas and another, reported in (2002) 5 SCC 654 , where in para No.15 it has been held as under :- "In such a case the question of complying with the conditions precedent to retrenchment of a workman provided in Section 25-F of the Act will not arise. In the present case, the Labour Court relying on the oral and documentary evidence cited on behalf of the management, particularly the order of the Managing Director sanctioning the engagement of the workmen concerned, held that the engagement/ appointment of the workmen concerned was for a specific purpose and for a particular period and since the purpose had expired, their disengagement was in terms of the contract of service, and therefore, not a "retrenchment" within the meaning of Section 2 (00) of the Act. The High Court has not recorded a finding that there was no contract of service between the management and the workmen concerned. The High Court has not recorded a finding that there was no contract of service between the management and the workmen concerned. In view of the evidence on record the High Court and indeed has not passed recorded any finding that there was no contract of service between the management and the workmen concerned. Since, there exists a contract of service with the terms and conditions as noted earlier the position in inescapable that the case of disengagement/termination of the workmen concerned did not amount to retrenchment. In particular facts and circumstances of the case the Labour Court rightly came to the conclusion that the workmen were entitled to no relief in the case. The High Court was clearly in error in interfering with the award passed by the Labour Court. Accordingly, the appeals are allowed. The judgments of the High Court in CWPs Nos. 9471 and 9472 of 1999 dated 22.09.2000, allowing the writ petitions filed by the respondent workmen are set aside and the award of the Tribunal is restored. There will, however, be no order for costs." 8. Counsel further relied upon the judgment passed by the Division Bench of this Court in the matter of Deputy Conservator of Forests & Anr. Vs. Sharfuddin, D.B. Special Appeal Writ No.700/2018, decided on 20.08.2019 where in paras-3 & 4 it has been held as under :- "3.We have heard Counsel for the parties. It is contended by the State that the approach of the Courts these days has been to not direct reinstatement but instead grant lump sum compensation; the decision in The Director, Tiger Project, Sariska, District Alwar Vs. Data Ram & Ors.-D.B.Special Appeal Writ No.406/2018 and connected cases on 31.07.2018 has been cited. It is contended that in that judgment Court had directed that broadly if someone had worked for a year, the compensation payable would be ? 1,00,000/-; in the case of two years, it ought to have been ? 2,00,000/- and in the case of three years and above, it ought to be ? 3,00,000/-. Counsel for the respondent argued that the labour Court itself has denied back wages. In these circumstances, the denial of reinstatement would be unfair. 1,00,000/-; in the case of two years, it ought to have been ? 2,00,000/- and in the case of three years and above, it ought to be ? 3,00,000/-. Counsel for the respondent argued that the labour Court itself has denied back wages. In these circumstances, the denial of reinstatement would be unfair. 4.Having considered the overall circumstances and the given facts of this case which clearly shows that the workman was in service for one year, in the opinion of this Court, the ends of justice would be served if lump sum compensation to the tune of ? 2,50,000/- (approximately equivalent to two years back wages) based on minimum wages is given. This amount shall be paid to the respondent within eight weeks from today." 9. In the alternative, the further argument raised by counsel for the employer is that if this Court may deem fit, in lieu of reinstatement some reasonable compensation be awarded to the workman and the award of learned Labour Court be modified accordingly. 10. Counsel for the workman on the other hand submitted that the learned Tribunal rightly passed the award holding violation of the provisions of the Act of 1947 as there was cogent evidence available on the record in support of the claim of the workman and prayed that the writ petition be dismissed. 11. Heard counsel for the parties and perused the record. 12. It is settled law by the Hon'ble Apex Court in the catena of judgments that it is for the workman to prove that there is violation of Sections 25F, 25G & 25H of the Act of 1947 as the case may be. In the present case, the workman pleaded his case before the Tribunal by leading evidence that the provisions of the Act of 1947 have been violated by the employer while giving effect to his termination and the learned Tribunal after considering the evidence on record found claim of the workman proved and recorded findings of violation of the provisions of the Act of 1947. 15. Considering the facts and circumstances of the present case and in view of the judgments passed by the Hon'ble Supreme Court in the matter of Krishna Bhagya Jal Nigam Ltd., and Haryana State F.C.C.W. Store Ltd., (both supra) and also the judgment passed by the Division Bench of this Court in the matter of Deputy Conservator of Forests & Anr. Considering the facts and circumstances of the present case and in view of the judgments passed by the Hon'ble Supreme Court in the matter of Krishna Bhagya Jal Nigam Ltd., and Haryana State F.C.C.W. Store Ltd., (both supra) and also the judgment passed by the Division Bench of this Court in the matter of Deputy Conservator of Forests & Anr. (supra), I am of the view that the finding of fact recorded by the Tribunal does not require any interference by this Court. However, considering that the reinstatement is not automatic, I deem it just and proper to award compensation of Rs.2,00,000/- to the workman in lieu of reinstatement. 13. Accordingly, the employer is directed to pay an amount of Rs.2,00,000/- to the workman as compensation in lieu of reinstatement as observed above, within a period of two months from today. The award of the Tribunal dated 28.03.2019 is modified in the above terms. The writ petition is accordingly disposed of.