M.P.
Electricity Board Vs. Hariram [2004] Insc 586 (27 September 2004)
N.Santosh Hegde &
S.B.Sinha (with Ca Nos. 2241/2001, 2242/2001 & 2243/2001) Santosh Hegde, J.
The appellant-M.P. Electricity Board in these appeals question the
correctness of the judgment of the High Court of Judicature at Jabalpur whereby
the High Court dismissed its writ petitions challenging the order of the
Industrial Court, Bhopal Bench which in turn had directed to re-instate the
respondents herein with 50% back wages.
Facts necessary for the disposal of these appeals are as follows:
The respondents herein were engaged by the appellant- Board on daily wages
for the purpose of digging pits for erecting electric poles. It is the case of
the appellant that on completion of the said project of drawing electric lines
from point to point, the employment of the respondents was terminated and
whenever a similar occasion arose for digging pits they were re-employed on
daily wages. Hence their employment was not permanent in nature nor in any one
of the cases the respondents had completed 240 days of continuous work in any
given year. The said project jobs have come to an end in 1991 and respondents
were never re- employed by the Board.
Being aggrieved by the said non-employment, the respondents herein filed
applications under Section 31 read with Section 61 of the M.P.Industrial
Relations Act (M.P.Act) in January, 1993 before the Labour Court, Bhopal
seeking permanent employment under the Board, primarily on the ground that they
have completed 240 working days in a year and their discontinuation of service
amounted to retrenchment without following the legal requirements.
The appellant-Board denied the allegations made in the said application
which had termed the non-employment as retrenchment of their service by
contending that the question of retrenchment does not arise in the nature of
employment because the service of the respondents were on work requirement
basis.
Before the Labour Court, an application was made by the respondents to
produce the Muster Rolls for the period 1987 to 1992. That apart no other
material was produced by the respondents to establish a fact that they had
worked for 240 days continuously in any given year. Though some other
applicants examined themselves before the Labour Court no other document was
produced. While the appellant-Board examined three witnesses who are
Engineers-In-Charge of the Project and produced the Muster Rolls for the period
between 1986 to 1990 but did not produce the Muster Rolls for the later period.
The Labour Court after examining the entries in the Muster Rolls came to the
conclusion that the respondents-applicants had not worked for 240 days
continuously in any given year, hence, they cannot claim permanency nor could
they term their non-employment as a retrenchment. On the said basis, it
rejected the applications of the respondents.
Being aggrieved by the said rejection of their application, the respondents
preferred an appeal before the Industrial Court at Bhopal Bench. The Industrial
Court noticing the fact that though the application for production of the
Muster Rolls was for the years 1987 to 1992, the appellant had only produced
the Muster Rolls for the year ending 1990. Therefore, an adverse inference
against the appellant was drawn and solely based on the said adverse inference
it accepted the case of the respondents that they had worked for 240 days
continuously in a given year, hence, proceeded to grant relief, as stated
herein above.
A challenge to the said orders of the appellant were dismissed by the High
Court after drawing an adverse inference based on the same grounds of
non-production of all the Muster Rolls.
However, while considering the case of grant of back wages both the Industrial
Court as well as the High Court came to the conclusion that the respondents
had not worked continuously at any given point of time and were not engaged on
all working days and their employment was punctuated by short periods when they
had not been engaged. Hence, it confined the back wages to 50% only and with
the above modification reinstatement of the respondents was ordered.
In these appeals, learned counsel appearing on behalf of the appellant-Board
contended that the courts below could not have drawn any adverse inference
against the Board for not having produced the Muster Rolls for the year
1990-1992 when it complied with the request of the respondent by producing the
Muster Rolls for the year 1988-90. It is submitted that the said Muster Rolls
which were produced before the court clearly indicated that the respondents had
not worked continuously for 240 days in a year, at any point of time between
1988-90. It is argued that it is not the case of the respondents that between
the year 1990-92 for which period the Muster Rolls were not produced they had
worked for 240 days continuously only in those years. Their entire case was
that between 1988 and 1992 they have been working in 240 days continuously in a
year which having not been established atleast for the years 1988 and 1990 without
there being a specific allegation that between 1990 and 1992 there was such
continuous employment a mere non-production of the Muster Rolls for the said
year could not have been made the basis of drawing an adverse inference by the
courts below. It is also argued that the non-employment of a daily wager when
there is no work would not amount to retrenchment. Learned counsel also
submitted that the nature of work that was being done by the appellant was a
work for a project and that project having come to an end, question of
regularising the services of the respondents or making them permanent did not
arise.
Shri S.K.Gambhir, learned senior counsel appearing for the respondents per
contra argued the very fact that the appellants though were in possession of
the Muster Rolls between 1988 to 1992 did not produce the same inspite of being
summoned must give rise to assumption that those documents if produced would
prove the case of the respondents, hence, the Industrial Court as well as the
High Court justly drew an adverse inference against the appellant. He submitted
that these workmen being poor and illiterate people will not have any material
in their possession to prove their continuous employment, hence, the burden of
proving their continuity of their employment could not be thrust on them.
He submitted that even otherwise in law the impugned orders did not call for
any interference.
Having heard the learned counsel for the parties and having perused the
documents, we notice that the case of the appellant that these respondents were
employed for the purpose of digging pits for erecting electric poles in the
course of drawing electric wire from one point to another point is not
disputed. It is an accepted finding of the courts below that the employment of
the respondents have been discontinuous and intermittent during the period from
1982 till their employment was discontinued. We can take judicial notice of the
fact that drawing of an electric line is in the nature of project work and once
the polls are erected and the electric wire is drawn from the starting pole to
the ending pole that work comes to an end. Therefore, it cannot be contended
that the nature of work which was only to dig pits for the purpose of erecting
poles could be construed as a permanent job. Of course, during the course of
electrifying more places, job of this nature may be done by the Board
continuously in different parts of the State but that does not deviate from the
fact that drawing of electric line from one point to another at one part of the
State would be a project and not a continuous job. Therefore, employment of
people in that local area for the limited job cannot be construed as an
employment for a continuous and regular work of the Board. This fact is also
recorded in the Muster Rolls which shows that at regular intervals the services
of the respondents were sought obviously for the reason that there was no
continuous need for such work. A perusal of the Muster Rolls, a copy of which
is produced along with the writ appeal which pertains to the respondents in the
first appeal clearly indicates the above fact. If as an example, we take the
case of the respondent in C.A.No.2240/01 we notice that he worked between
16.11.1987 to 15.12.1987 for 30 days. His next employment was from 16.12.1987
to 15.1.1988 for 26 days.
Therefore, it could be said that during the period 16.11.1987 to 15.1.1988
this respondent worked continuously for 56 days. He was then not employed
between 15.1.1988 till 16.2.1988. After the said break he was re-employed from
16.2.1988 to 15.9.1988 which is for a period of 106 days. Thereafter, he was
not employed till 16.11.1988. From 16.11.1988 he was re-employed till
15.12.1988 for 30 days. Thus it is noticed that the employment during the
period 1987 to 1988 was not continuous and his total employed days for one year
if taken from 16.11.1987 till 16.11.1988, same comes to 136 days. Similar is
the case if we have a look at a subsequent employment during the years
1989-1990, this clearly shows the fact that the employment of the respondent
was on a job required basis and was not for any continuous services required by
the Board. The appellant, therefore, cannot claim either permanency or
regularisation since there is no such permanent post to which he could stake his
claim nor could he claim the benefit of completion of 240 days of continuous
work in a given year, because as stated above the figures do not show that the
respondents whose particulars are referred to herein above or the other
respondents for that matter have worked for 240 days. In such a factual
background, in our opinion, the Industrial Court or the High Court could not
have drawn an adverse inference for the non-production of the Muster Rolls for
the year 1990 to 1992 in the absence of specific pleading by the
respondents-applicants that atleast during that period they had worked for 240
days continuously in a given year. The application calling for the production
of the documents was for the years 1987 to 1992. As stated above, between the
period 1987 to 1990, as a matter of fact, till end of the year 1990 the
respondents have not been able to establish the case of continuous work for 240
days. Considering these facts in our view drawing of an adverse inference for
the non-production of the Muster Rolls for the years 1991-92, is wholly
erroneous on the part of the Industrial Court and the High Court. We cannot but
bear in mind the fact that the initial burden of establishing the factum of
their continuous work for 240 days in a year rests with the applicants-respondents.
The 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 re-instatement 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 vs. 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 in 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." If we apply the principles laid down by this Court in the
above stated case of Siri Niwas, it is clear that the Labour Court not having
drawn any adverse inference, on facts and circumstances of this case the
Industrial Court or the High Court could not have based an order of
re-instatement solely on the basis of an adverse inference.
For the reasons stated above, these appeals succeed. The impugned orders of
the High Court as well as the Industrial Court are set aside and that of the Labour
Court is restored.
These appeals are allowed.
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