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2024 DIGILAW 169 (JK)

Bharat Sanchar Nigam Ltd (BSNL) v. Devi Ditta, S/o. Beli Ram

2024-04-03

M.A.CHOWDHARY

body2024
JUDGMENT : 1. Petitioners through the medium of this petition filed in terms of Article 226 of the Constitution of India seek, quashing of the Judgment/Award dated 30.09.2005 (for short ‘Impugned Award’) passed by the respondent No.5-Industrial Tribunal-cum-Labour Court Chandigarh (hereinafter called ‘the Tribunal’ for short) on the ground that the Award is against the facts and law as the finding recorded by the Tribunal is utterly perverse. 2. The case of the petitioners is that the respondents 1 to 4 amongst others, were working as casual labourers and their services were discontinued and an application was preferred by the twelve casual labourers against their disengagement before the Government and the Central Government referred the dispute with respect to their disengagement to Industrial Tribunal cum Labour Court Chandigarh, which rejected the Reference vide Award dated 09.11.1998. Thereafter, the workmen filed a writ petition SWP No. 1308/1999 before this Court challenging the Award of the Tribunal and this Court vide judgment dated 27.07.2001 disposed of the aforesaid writ petition by remanding back the case to the Tribunal, with a direction to dispose of the Reference within a period of three months. In compliance to the Court order, the Tribunal disposed of the matter vide Award dated 30.09.2005, which has been impugned in the present writ petition. 3. The petitioners being aggrieved of the impugned Award dated 30.09.2005, have challenged the same on the grounds that the workmen’s cases had been considered, in terms of the Policy for Regularization of labourer in the year 1989, pursuant to the judgment of the Hon’ble Apex Court, however, the workmen under Reference including respondents had been found not to be covered by the Policy, as such, they were not entitled to be regularized; that respondent Nos. 1 to 4 have not been able to prove their continuation/completion of 240 days in a particular year, except filing the affidavits without any documentary proof and on the contrary the petitioners herein had already filed the details on the basis of which the Reference of the respondents was initially dismissed by the Tribunal; that the Tribunal later on, after remand of the Reference has drawn an adverse inference against the management for non production of record and has reached to the conclusion that the respondents 1 to 4 have completed more than 240 days in a year and are thus entitled to reinstatement. It has been alleged that the Tribunal has wrongly assumed that the petitioners herein have completed more than 240 days as the management failed to produce the record, as the same is totally unjustified and finally prayed that the award made by the Tribunal be quashed. 4. Pursuant to notice, respondents 1 to 4 filed their response, wherein they have pleaded that they had been working as Daily Wagers in the Department of Telecommunications Jammu w.e.f. 1982, 1983 and 1986 respectively and they remained in continuous service of the Department from the dates of their engagements, thereafter, they were retrenched on different dates; that the entire process was initiated by the petitioners-Management in order to defeat the judgment passed by the Hon’ble Supreme Court in case titled “Daily Rated Casual Labourers Employed under Post and Telegraph Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India & Ors.”, reported as 1987 Legal Eagle (SC) 776, wherein directions had been issued to the Department of Post and Telegraph to prepare a scheme on rational basis for absorbing as far as possible the casual labourers, who were working continuously for more than a year in the said Department; that the said Department was further directed to pay the wages to the workmen, who were employed as casual labourers belonging to several categories of employees in the Post and Telegraph Department, at the rates equivalent to minimum pay scale as in the pay scale of the regularly employed workers in the corresponding cadres without any increment. 5. 5. It has been further stated that, the writ petition otherwise also suffers from delay and latches, inasmuch as the impugned award was passed on 30.09.2005, which was duly published in the Government Gazette by the Government of India on 25.01.2006, thereafter, the award was duly served upon the petitioners by the answering respondents for its implementation but no action, whatsoever, was initiated and subsequently the answering respondents filed an application before the Tribunal u/s 33-C for its implementation and it was thereafter, that the present petition came to be filed after more than two years of passing of the impugned award and about one year of the publication of the same, by not explaining the delay in any manner; that the petitioners are not entitled to any relief in view of the flagrant violation committed by them of Section 17-B of the Industrial Disputes Act and finally prayed that the present petition be dismissed. 6. Mr. P.C. Sharma, learned CGSC appearing for the petitioners, vehemently, argued that the respondents 1 to 4 are not entitled to any relief as the services of the workmen were casual in nature and they have not completed 240 days within a period of 12 months preceding to 14.03.1988. He further argued that all the workmen were not appointed by the Management and they were temporarily engaged on casual basis, their services came to an end on completion of the job for which they were engaged by the Department and respondents as workmen had not completed uninterrupted service for a period of 240 days prior to 14.03.1988; that the respondent No.5 after going through the complete record of the case, rejected the claims of the respondents initially but the case on being remanded, by this Court, the Tribunal wrongly assumed that the respondents had completed minimum 240 days service authorizing them to be regularized, just on the failure of the petitioners-management to produce record before the Tribunal and he finally prayed that the petition be allowed. In support of his contention, he relied upon the judgment of the Hon’ble Supreme Court in case titled “MP Electricity Board vs. Hari Ram”, reported as 2004 AIR SCW 5476, wherein it has been laid down that ‘even if the Board has failed to produce muster roll, adverse inference cannot be drawn against the Board and the onus lies upon the workmen to prove their engagement’. 7. Mr. 7. Mr. S.H. Rather, learned counsel appearing for the contesting respondents 1 to 4, ex adverso, has argued that they were working as Daily Wagers in the Department of Telecommunications Jammu w.e.f 1982, 1983 and 1986 respectively and they remained in continuous service of the Department from the dates of their engagements, however, they were retrenched on different dates without following due process of law; that the said retrenchment of the respondents was illegal and unconstitutional and as such, conciliation proceedings in the matter were initiated but keeping in view the adamant attitude of the petitioners, same failed, resulting into Reference of dispute before the Tribunal. He further argued that the Tribunal vide its Award dated 09.11.1998 answered the Reference by upholding the action of the Management of Telecom Department Jammu, in terminating the services of the contesting respondents, the said Award came to be challenged before this Court through SWP No. 1308/1998 and this Court vide judgment dated 27.07.2001 set aside the order of the Tribunal and the matter was remanded back to the Tribunal; that after appreciating the entire controversy and after giving appropriate opportunity to the petitioners also to lead their evidence, the Award was passed, which is impugned in the present petition and finally prayed that the present petition be dismissed. In support of his arguments, learned counsel for the respondents has relied upon the judgments reported as 1987 Legal Eagle (SC) 776; 2009 Legal Eagle (SC) 1425; and Civil Appeal No.4404 of 2023 (Arising out of SLP(C) No. 14886 of 2023). 8. Heard learned counsel for both the sides, perused the record and considered the matter. 9. As recorded in the interim order dated 22.08.2023, learned counsel for the respondents made a statement before this Court that respondent Nos. 1-Devi Ditta and 3-Babu Ram have died during pendency of this petition, therefore, this petition abated against them, whereas respondent No.2-Sat Pal has reached the age of 60 years, however respondent No.4-Pritam Singh is still in service. 10. As recorded in the interim order dated 22.08.2023, learned counsel for the respondents made a statement before this Court that respondent Nos. 1-Devi Ditta and 3-Babu Ram have died during pendency of this petition, therefore, this petition abated against them, whereas respondent No.2-Sat Pal has reached the age of 60 years, however respondent No.4-Pritam Singh is still in service. 10. The Hon’ble Apex Court in “Bharatiya Kamgar Karmachari Mahasangh vs. M/S Jet Airways Ltd”, passed in Civil Appeal No. 4404/2023 (Arising out of SLP(C) No. 14886/2023), held in para 16 as under:- “A cumulative reading of aforesaid clauses reveals that a workman who has worked for 240 days in an establishment would be entitled to be made permanent, and no contract/settlement which abridges such a right can be agreed upon, let alone be binding. The Act being the beneficial legislation provides that any agreement/contract/settlement wherein the rights of the employees are waived off would not override the Standing Orders”. 11. In “Daily Rated Casual Labourers Employed under Post and Telegraph Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India & Ors.”, 1987 Legal Eagle (SC) 776, the Hon’ble Apex Court passed directions to the respondents to prepare a Scheme on a rational basis for absorbing, as far as possible, the casual labourers who have been continuously working for more than one year in the Post & Telegraphs Department. Paragraph 8 being relevant is extracted as follows : “India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of every one who works to just and favourable remuneration ensuring a decent living for himself and for family, the right of every one without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions. and the right to join trade unions of one's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. and the right to join trade unions of one's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organization engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production. It is again for this reason that managements and the Government agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time, where is any justification to keep persons as casual labourers for years as is being done in the Postal and Telegraphs Department? Is it for paying them lower wages? Then it amounts to exploitation of labour. Is it because you do not know that there is enough work for the workers? It cannot be so because there is so much of development to be carried out in the communications department that you need more workers. The employees belonging to skilled, semi-skilled and unskilled classes can be shifted from one department to another even if there is no work to be done in a given place. Administrators should realise that if any worker remains idle on any day, the country loses the wealth that he would have produced during that day. Our wage structure is such that a worker is always paid less than what he produces. So why allow people to remain idle? Anyway they have got to be fed and clothed. Administrators should realise that if any worker remains idle on any day, the country loses the wealth that he would have produced during that day. Our wage structure is such that a worker is always paid less than what he produces. So why allow people to remain idle? Anyway they have got to be fed and clothed. Therefore, why don't we provide them with work? There are several types of work such as road making, railway construction, house building, irrigation projects, communications etc. which have to be undertaken on a large scale. Development in these types of activities (even though they do not involve much foreign exchange) is not keeping pace with the needs of society. We are saying all this only to make the people understand the need for better management of man power (which is a decaying asset) the non-utilisation of which leads to the inevitable loss of valuable human resources. Let us remember the slogan: "Produce or Perish". It is not an empty slogan. We fail to produce more at our own peril. It is against this background that we say that non-regularisation of temporary employees or casual labour for a long period is not a wise policy. We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraphs Department.” 12. Hon’ble Apex Court in judgment “Director, Fisheries Terminal Division vs. Bhikubhai Meghajibhai Chavda”, reported as 2009 Legal Eagle(SC) 1425, held in paragraphs 6 and 14 as under : “6. The award passed by the labour court was challenged by the appellant before the High Court. The High Court has endorsed the award passed by the labour court, on the ground that the labour court has rightly come to the conclusion that the appellant has not established by leading cogent evidence that the appellant is not a seasonal industry. The award passed by the labour court was challenged by the appellant before the High Court. The High Court has endorsed the award passed by the labour court, on the ground that the labour court has rightly come to the conclusion that the appellant has not established by leading cogent evidence that the appellant is not a seasonal industry. It is also observed, that, once it has come in evidence that the workman has completed 240 days of service in the preceding year, then the initial burden is shifted on the employer to rebut the oral evidence of the workman by producing relevant oral and documentary evidence and since the appellant failed to produce the same before the labour court, it was justified in concluding that the workman had completed continuous service of 240 days during the preceding year and accordingly had dismissed the writ petition filed by the appellant.” 14. Section 25B of the Act defines “continuous service.” In terms of sub-section (2) of Section 25B 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 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This Court in the case of R.M. Yellatty vs. Assistant Executive Engineer, (2006) 1 SCC 106 , has observed: “However, apply general principles and on reading the aforesaid 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 up 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 of termination. This burden is discharged only upon the workman stepping up 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 of termination. There will also be no receipt of 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 of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case.” 13. Factual background of the case is that services of as many as 17 workmen including respondents herein, were disengaged by Telecommunication Department w.e.f. 14.03.1988 and they being represented by Sh. K.R. Khajuria, approached the Government that they had been working in the Telecommunication Department in the State of Jammu & Kashmir for the last 3 to 5 years and that they had completed 240 days within the period of 12 calendar months preceding to 14.03.1988 and alleged that these workmen had not been served with notice under Section 25-F of the Industrial Disputes Act 1947 and without assigning any reasons, all of them had been disengaged by the management w.e.f. 14.03.1998 without paying any compensation to them and that they had not been taken in regular service of the department ignoring the direction of Hon’ble Supreme Court of India passed in Writ Petition Nos. 302 and 373 of 1986 decided on 27.10.1987 whereby Apex Court had directed that all the casual labourers must be paid equal wages as paid to the regular labourers of the same category in addition to their regularization. Based on the representation made by disengaged workmen, the Central Government vide Gazettee Notification No. L-40012/52/86-D.II(B) dated 04.07.1989 referred the following dispute to the Central Government Industrial Tribunal-cum Labour Court, Chandigarh for adjudication : “Whether the action of the management of Telecom District Engineer, Jammu in terminating the services of S/Shri Shamsher Singh, Om Parkash, Pritam Lal, Pasnori Singh, Paras Ram, Subash Chander, Rak Lal, Sat Pal, Baru Ram, Devi Dutta, Pritam Singh and Sukhdev Singh and other w.e.f. 14.03.1988 is justified? If not, what relief the concerned workmen are entitled to? 14. If not, what relief the concerned workmen are entitled to? 14. The Tribunal, after recording of evidence and hearing both the sides i.e. Workmen and Management, vide Award dated 09.11.1998 in case No. ID 108/89 answered the Reference holding that the Management was justified in passing the order dated 14.03.1988 in terminating the services of the workmen and consequently workmen were not entitled to get any relief from the Management. Award passed by the Tribunal came to be assailed before this Court in writ petition being SWP No. 1308 of 1999 and that this Court vide judgment dated 27.07.2001 disposed of the writ petition by observing that the Tribunal had not recorded a finding regarding the completion and/or non completion of services of 240 days of service within a calendar year by any of the petitioners and remanded back the case to the Tribunal. 15. As per record, only four workers, namely, Devi Ditta, Sat Pal, Babu Ram and Pritam Singh who are respondents in this case approached the Tribunal by way of an application dated 17.08.2001 accompanied with a copy of the judgment of High Court and requested the Tribunal to proceed in the matter as per the direction of High Court. Tribunal recorded the fresh statements by way of affidavits of the workmen who had also made an application for a direction to the Management to produce the record, however, the management showed its inability to produce the same sought to be summoned by the workmen, saying that the same being over five years cannot be produced. Workmen made fresh statements whereas Management chose not to lead any more evidence and relied upon the evidence already produced by it in the case. 16. The moot question which had fallen for the consideration of the Tribunal was whether applicants/workmen had performed their duties for the Management at least 240 days and the Management terminated their services without following the mandate of law as contained in the Act. The Tribunal vide impugned Award dated 30.09.2005 observed that from the perusal of the documents placed on record by the Management and the statement of their witnesses Sh. H.R. Shukla, it emerges that Management had not come forward with clean hands as their pleadings did not match with the documents they had placed on record. The Tribunal vide impugned Award dated 30.09.2005 observed that from the perusal of the documents placed on record by the Management and the statement of their witnesses Sh. H.R. Shukla, it emerges that Management had not come forward with clean hands as their pleadings did not match with the documents they had placed on record. The details of the working days given by the Management along with their written statement differ with the detail given by them in the statement attached with the affidavit of their witness, namely, Sh. H.R. Shukla. Tribunal also observed that Management had not rebut the affidavits filed by the petitioners after the remand of the case and that the details of working days claimed by the workmen had not been challenged with any fresh evidence, oral or documentary, and the statements produced by the Management are contradictory in nature and did not invoke confidence; that the original record had not been produced by the Management so that the truth could be verified and the Tribunal was left with no option but to accept the detail of working days given by the workmen as correct. The Tribunal further observed that there is no denying of the fact that it was the duty of the workmen to prove that they had served the Management for 240 days continuously during twelve calendar months preceding the date of termination of their services and that on the basis of the statement of the Management itself, the Tribunal had held that workmen had rendered services to the Management for 240 days in the twelve calendar months preceding the date of termination of their services, if not immediately, in the next backward period as they served the Management for more than one year and when they served for 240 days in any of the twelve calendar months counted backward, they earned the right as contained in Section 25-F of the Act and distinguished the citation AIR 2002 SC 1147 relied upon by the Management being of no help to it. The Tribunal finally was of the opinion that the action of the Management in terminating the services of the respondents herein w.e.f. 14.03.1988 or from the date they were not given work by the Management as is shown in the record was bad in law and to the extent of relief it was observed that they be treated in service all through this period as if they had never been dis-engaged by the Management and entitled to back wages only to the extent of 25% of the wages due to them besides all other benefits due to them. 17. Learned counsel for the respondents/workmen has placed reliance upon the law laid down by the Apex Court in a case of Daily Rated Casual Labourer reported as 1987 Legal Eagle (SC) 776 wherein a direction had been issued to the department of post Telegraph to prepare a Scheme on rational basis for absorbing as far as possible the casual labourers who had been working continuously for more than a year in the said department and to pay wages to the workmen who were employed as casual labourers belonging to several categories of employees in the department at the rates equivalent to the minimum pay scale as in the pay scale of the regular employed workers in the corresponding cadres without any increment. The contention of the learned counsel for the petitioner that the Tribunal has, in the impugned Award, drawn an adverse inference against the petitioner/Management for its failure to produce the record unmindful of the law laid down by the Apex Court in case titled MP Electricity Board (supra) wherein it had been laid down that even if the Board has failed to produce the muster roll, adverse inference cannot be drawn against the Board and the onus lies on the workmen to prove their engagement. This contention of the learned counsel for the petitioners’ Management pales into insignificance in view of the law laid down by the Apex Court in a later judgment passed in Director, Fisheries Terminal Division (supra) wherein it has been held that burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment and law on this issue appears to be now well settled. However, it was further observed that this burden is discharged only upon the workman adducing cogent evidence, both oral and documentary and in case of termination of services of daily-waged earners, there will be no letter of appointment of termination and there will also be no receipt of proof of payment. It is also observed that 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 of termination, if any, the wage register, the attendance register, etc. and that drawing of adverse inference ultimately would depend thereafter on the facts of each case. 18. The Tribunal in its detailed opinion has elucidately gone into the evidence recorded before the Tribunal and on the basis of the evidence recorded in the shape of affidavits of the workmen/claimants and contradictory stand of the Management with regard to pleadings and the documents placed on record and also on the failure of the Management to produce the record on the plea that it was over five years and cannot be produced, observed that Management had not come to the Tribunal with clean hands, as such, an inference was drawn against the Management. In the considered opinion of this Court, the Tribunal had rightly drawn the adverse inference against the Management in view of the evidence before it and the inaction on the part of the Management to produce the record despite a request by the Workmen and direction of the Tribunal. This adverse inference, in my opinion, has also been rightly drawn for the reason that Management could not be heard in saying that they cannot produce the record which was over five years old when a Reference with regard to the dispute had also been made to the Tribunal by the Government and the said record should be preserved for the perusal of the Tribunal. 19. For the foregoing reasons and the observations made hereinabove, this Court is of the considered opinion that Tribunal had rightly replied the Reference with regard to the dispute which it was called upon to adjudicate and no legal fault can be found in the impugned Award passed by the Tribunal. Having regard to the aforesaid discussion, the petition is found to be without any merit and substance and is hereby dismissed. No order as to costs. Having regard to the aforesaid discussion, the petition is found to be without any merit and substance and is hereby dismissed. No order as to costs. 20. Registry to supply a copy of this order to the Tribunal.