Palika Vs. Babuji Gabhaji Thakore and Ors  Insc 1174 (23 November 2007)
Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.
the present appeal challenge is to the order passed by a Division Bench of the
Gujarat High Court dismissing the Letters Patent Appeal filed by the appellant.
In the Letters Patent Appeal challenge was to the order passed by a learned
Single Judge who had dismissed the writ petition filed by the appellant.
brief reference to the factual aspects would suffice.
Claim was made by the respondents to the effect that their services were
terminated without following the procedure prescribed under Section 25-F of the
Industrial Disputes Act, 1947 (in short the Act). It was their case
that they were employed on regular basis and, therefore, the termination of
service is illegal. In the claim petition they had averred that they were
working since 1991 and had worked continuously till there was termination of
service by an oral order on 16.5.1994. Appellant took the stand that the
respondents were engaged as daily rated helpers. Their appointments were not in
terms of the recruitment rules and workers were called for rendering services
as and when required. It was therefore said that the claim regarding continuance
of service was mis- conceived. The respondents only worked for a few days. In
fact after November, 1993 there was no engagement made as their services were
not required. The Labour
Court, Ahmedabad by
order dated 9.7.1999 directed re-instatement with continuity of service and 50%
back wages. The order was assailed before the High Court. It was contended that
the respondents were working as daily wagers and they had not rendered regular
service. A learned Single judge of the High Court dismissed the writ petition
holding that each of the respondents had completed 240 days of service and,
therefore, the order of the Labour Court
was justified. As noted above, writ appeal was dismissed.
Learned counsel for the appellant submitted that there was no pleading that the
respondents had completed 240 days of service. In fact their claim in the claim
petition was that they had rendered continuous service without indicating any
particulars. In any event, there was no finding recorded by the Labour Court
that they had completed 240 days of service.
Single Judge therefore was not justified in holding that the Labour Court had concluded that the concerned
workmen had completed 240 days of service. It was further submitted that all
relevant records were produced before the Labour Court which were lightly brushed aside and conclusions were
arrived at on conjectures by holding that the claim of the present respondents
was to be accepted.
was further submitted that the onus is on the person who claims to have
rendered more than 240 days of service to establish it. The Labour Court and the High Court erroneously held
that it was for the employer to establish that the claimants-workmen had not
completed 240 days of service
Learned counsel for the respondents on the other hand submitted that after
analyzing the factual position in detail the Labour Court and the High Court have arrived at the correct conclusion.
a large number of cases the position of law relating to the onus to be
discharged has been delineated. In Range Forest Officer v. S.T. Hadimani (2002
(3) SCC 25), it was held as follows:
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.
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.
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. 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. 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.
said decision was followed in Essen Deinki v. Rajiv Kumar (2002 (8) SCC 400).
Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr. (2004 (8) SCC 161), the
position was again reiterated in paragraph 6 as follows:
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). 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.
Municipal Corporation, Faridabad v. Siri Niwas (2004 (8) SCC 195), it was held
that the burden was on the workman to show that he was working for more than
240 days in the preceding one year prior to his alleged retrenchment. In M.P.
Electricity Board v. Hariram (2004 (8) SCC 246) the position was again
reiterated in paragraph 11 as follows:
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 Corporation, Faridabad v. Siri Niwas 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.
is what this Court had to say in that regard:
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.
matter, however, would be different where despite direction by a court the
evidence is withheld.
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 is 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."
Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. (2005(5) SCC 100) 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.
Tribunals view that the burden was on the employer was held to be
erroneous. In Batala Cooperative Sugar Mills Ltd. v. Sowaran Singh (2005 (8)
SCC 25) it was held as follows:
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
(2002 (3) SCC 25) the onus is on the workman.
The position was examined in detail in Surendranagar District Panchayat v. Dehyabhai
Amarsingh (2005 (7) Supreme 307) and the view expressed in Range Forest
Officer, Siri Niwas, M.P. Electricity Board cases (supra) was reiterated.
R.M. Yellatti v. The Asst. Executive Engineer (2006 (1) SCC 106), the decisions
referred to above were noted and it was held as follows:
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.
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 earner, there
will be no letter of appointment or termination. There will also be no receipt
or proof of payment.
in most cases, the workman (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 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 facts of each case. 14. The above position was again
reiterated in ONGC Ltd. and Another v. Shyamal Chandra Bhowmik (2006 (1) SCC
337) and Surendranagar Distt. Panchayat v. Gangaben Laljibhai and Ors. (2006
(9) SCC 132).
was held in all these cases that 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.
is to be noted that the appellant had produced materials to show that the claim
of the respondents that they had worked from 1991 was patently wrong. In fact,
finding has been recorded that one of the respondents had worked since January,
1994 contrary to the claim of having worked from 1991. In view of the fact that
the Labour Court and the High Court have not
considered the matter in the proper perspective and the view expressed is
contrary to the decision in several decisions referred to above, the orders of
the Labour Court and the High Court cannot be
There was need for factual adjudication on the basis of the materials adduced
by the parties. That apparently has not been done. We therefore set aside the
orders of the Labour
Court, learned Single
Judge and Division Bench of the High Court and remit the matter to the Labour Court to consider the matter afresh. It
has to specifically record a finding as to whether the claim of the workmen of
continuance of service is acceptable. It has also to be decided as to whether
the workmen had completed 240 days of service. That decision is vital to see
whether Section 25-F of the Act has any relevance.
The appeal is allowed with no order as to costs.