Krishna Bhagya Jala
Nigam Ltd. Vs. Mohammed Rafi  INSC 844 (28 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2895 OF 2009 (Arising
out of S.L.P. (C) No.24529 of 2005) Krishna Bhagya Jala Nigam Ltd. ..Appellant
Versus Mohammed Rafi ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the Division Bench of the Karnataka High
Court allowing the writ appeal filed by the respondent.
By the impugned
judgment the Division Bench set aside the order passed by a learned Single
Judge and the award made by the Labour Court.
facts in a nutshell are as follows:
The workman had been
working as a daily wage employee with the Krishna Bhagya Jala Nigam Limited
(for short the `Jala Nigam') which, at the relevant point of time was executing
the Upper Krishna Project in the State of Karnataka. His services were
allegedly terminated which gave rise to an industrial dispute. According to the
claim made by the workman he served the Jala Nigam from 29.10.1989 to 1.4.1996.
He further claimed that his services were terminated without complying with the
provisions of Section 25-F of the Industrial Disputes Act 1947 (for short the
Act). A reference under Section 10(1) (c) of the Act was made to the Labour
Court, Gulbarga. Several other employees had also challenged the termination of
their services and other references had been made to the Labour Court and some
of the employees had also filed applications before it under sub- section (4-A)
of Section 10 of the Act. The reference made at the instance of the workman was
contested by the Jala Nigam and on a consideration of the oral and documentary
evidence led by the parties, the Labour Court recorded a finding that the
services of the workman had been terminated without complying with the provisions
of Section 25-F of the Act and therefore the termination was illegal.
Accordingly the termination was set aside and the Jala Nigam was directed to
reinstate the workman with full back wages and continuity of service. This
award came to be challenged by the Jala Nigam in W.P. No.40822/1999. This writ
petition was heard along with the writ petitions filed in the case of other
workmen as well and all the writ petitions were disposed of by the learned
single Judge by a common order. In the case of other workmen there was
considerable delay in raising the industrial dispute and therefore the learned
single Judge non-suited them on that ground. In the case of the workman the
Labour Court observed that there had been no delay but the provisions of
Section 25-F of the Act had not been complied with and therefore the
termination was wrongful. The learned single Judge set aside the award of the
Labour Court holding that there was no evidence before it indicating that the
workman had ever been in the service of the Jala Nigam. According to the
learned single Judge, the workman had not discharged the initial onus of
proving that he had worked for more than 240 days with the Jala Nigam and
therefore the award directing his reinstatement was illegal. The writ petition
was allowed and the award of the Labour Court set aside. It is against this
order of the learned single Judge that a writ appeal was filed before the
By the impugned
judgment, the writ appeal was allowed.
counsel for the appellant submitted that the basic approach of the High Court
is erroneous. It proceeded on the basis as if the period of
employment/engagement of a workman has to be established by the employer. There
is no appearance on behalf of the workman.
counsel for the respondent-workman supported the judgment of the High Court.
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:
"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. 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 5 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:
"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). 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:
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. This is what this Court
had to say in that regard:
"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 is the background of facts involved in the lis. The presumption,
thus, is not obligatory because 7 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. Tribunal's view that the burden was on the employer was held to
be erroneous. In Batala Cooperative Sugar Mills Ltd. v. Sowaran Singh (2005 (7)
Supreme 165) it was held as follows:
"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 (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 (JT 2005 (9) SC 340), the
decisions referred to above were noted and it was held as follows:
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 earner, 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 (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 9 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."
above position was again re-iterated in ONGC Ltd. and Anr. v. Shyamal Chandra
Bhowmik (2006 (1) SCC 337) and Chief Engineer, Ranjit Sagar Dam and Anr. v.
Sham Lal (2006 AIR SCW 3574).
is allowed. No order as to costs.
(Dr. ARIJIT PASAYAT)