R.M. Yellatti Vs. The Asst.
Executive Engineer [2005] Insc 623 (7 November 2005)
S.N. Variava,Dr. Ar.
Lakshmanan & S.H. Kapadia Kapadia, J.
The appellant questions the correctness of the judgment of the High Court of
judicature at Karnataka at Bangalore whereby the High Court, in Appeal, allowed
the writ petition filed by the Assistant Executive Engineer (SD-I), Athani and
set aside the order of the Labour Court dated 27.10.1999 directing
reinstatement with 50% back wages from the date of the award till the date of
reinstatement.
Facts necessary for the disposal of this appeal are as follows:
Appellant was appointed as a daily waged earner by the Assistant Executive
Engineer on 26.11.1988. He worked up to 20.6.1994, on which day his services
were terminated. He was getting salary of Rs.910/- per month. On termination,
appellant claimed that he had continuously worked for more than 240 days
immediately prior to 20.6.1994 (date of termination) and that his services were
wrongly terminated without complying with the provisions of section 25-F of the
Industrial Disputes Act, 1947 (hereinafter referred to as "the 1947
Act").
Consequently, he contended that the above termination constituted illegal
retrenchment which was liable to be set aside. The above industrial dispute was
referred by the State Government to the labour court vide reference under
section 10(I)(c) of the 1947 Act. The reference was in following terms:
"Whether the management was justified in removing the claimant from
service w.e.f.
20.6.1994? If not, to what reliefs the claimant was entitled for?" On
receipt of the said reference, the labour court issued notices to the concerned
parties. The management resisted the reference by filing its counter statement
by which the management contended that the appellant was not a worker in terms
of section 2(s) of the 1947 Act and consequently, he was not entitled to claim
benefit of section 25-F of the said Act.
The management also submitted that the "Irrigation department" was
not an "industry" under the said 1947 Act and consequently, the
question of compliance of section 25-F did not arise. Further, the appellant
contended that the reference was time barred.
By award dated 27.10.1999, the labour court held that the appellant was
appointed as daily waged earner and that he was a workman under section 2(s) of
the 1947 Act. The labour court found on facts and on the basis of evidence led
before it that the appellant had worked with SD-1 at Athani continuously for
more than 240 days prior to 20.6.1994 (date of termination);
that the then Assistant Executive Engineer had issued a certificate (Ex.W1)
to the effect that the appellant had worked from 24.11.1988 to 20.6.1994; that
although the appellant had been cross-examined on behalf of the management, there
was no material to disbelieve the certificate Ex.W1. The labour court found
that Ex.W1 was duly proved. It contained the signature of the then Asstt.
Executive Engineer. Further, the labour court came to the conclusion that the
management had suppressed the material evidence from the Court. We quote
hereinbelow the findings given by the labour court in this connection:
" At the outset I have to state that the respondent has not placed all
the material records before the Court and on the other hand, the respondent has
followed the method of pick and choose and produced some records before the
Court for some period and they are marked as Exh. M.1 to M.15. As per the
evidence of MW.1 who has no personal knowledge of claimant has spoken on the
basis of records. As per the respondent the claimant has not at all worked with
the respondent at any point of time namely with H.B.C. Athani, Belgaum
District. However, when the respondent was called upon to produce the N.M.R.
extracts for relevant period, it has chosen to produce Ex. M.1 to M.5 and
consolidated statement showing the period for which the claimant had worked as
on 20.6.1994. As per the documentary evidence adduced on behalf of the
respondent and the oral version of MW.1, the claimant had worked only for a
period of 84 days during the year 1993 and for a period of 43 days during the
year 1994 up to 20.6.1994. The respondent has not chosen to produce the N.M.R.
extracts for a period of 12 months immediately prior to 20.6.1994. Whether
the name of the claimant is found in such NMR extracts during the said 12
calendar months prior to 20.6.1994 or not is immaterial for respondent, it is
for the Court to arrive at conclusion or production of N.M.R.
records pertaining to the period of 12 calendar months immediately prior to
20.6.1994. There is no explanation offered on behalf of the respondent for
non-production of the said N.M.R. It is the evidence of MW.1, the concerned NMR
for the said period are available. In my opinion MW.1 has suppressed the
material evidence before the Court. On perusing the oral evidence of MW.1 it
reveals that in order to suppress the real material, it has not chosen to
produce concerned N.M.R." On the question as to whether the Irrigation
department is an industry under the 1947 Act, the labour court followed the
decision of the Karnataka High Court holding that the Irrigation department of
the Government constituted an industry within the meaning of section 2(j) of
the 1947 Act. On the point of limitation, the labour court held that the Limitation Act,
1963 was not applicable to the proceedings under section 10 of the 1947
Act. However, since there was a delay of three years in raising the industrial
dispute and since the appellant was only a daily waged earner, the labour court
directed the management to reinstate the appellant into service as a daily
wager with 50% back wages from the date of the award till the date of
reinstatement.
Aggrieved by the said award, the management challenged the award vide writ
petition no.17636 of 2000. The said writ petition was dismissed in limine vide
order dated 7.6.2000.
Aggrieved by the decision of the learned Single Judge dated 7.6.2000, the
management carried the matter in appeal to the division bench vide writ appeal
no.5660 of 2000. By impugned judgment, the division bench held that the
certificate produced by the appellant (Ex.W1) nowhere stated that the appellant
was in continuous service for 240 days; that there was no evidence on record to
show that the certificate was in fact issued by Asstt. Executive Engineer and
that the records produced by the department showed that Ex.W1 was a fabricated
document. The division bench further observed that the appellant herein had failed
to produce the letter of appointment, letter of termination or receipts
indicating payment of monthly salary. The division bench observed that except
the self-serving statement of the appellant in the witness box, there was
nothing on record to support his case of having worked for 240 days. Following
the judgment of this court in the case of Range Forest Officer v. S.T. Hadimani
reported in (2002) 3 SCC 25, the division bench vide its impugned judgment
quashed the award passed by the labour court in favour of the appellant. By the
impugned judgment, the division bench also set aside the order of the learned
Single Judge. Hence, this civil appeal.
Shri Mahale, learned advocate for the appellant submitted that the division
bench ought not to have interfered with the concurrent findings given by the
award of the labour court dated 27.10.1999 and by the judgment of the learned
single judge dated 7.6.2000. He submitted that there was no perversity in the
findings recorded by the labour court. He submitted that full opportunity was
given to the management to produce its records. He submitted that the
management suppressed the Nominal Muster Rolls (NMRs) which indicated that the
appellant had worked for the entire period between 22.11.1988 to 20.6.1994. It
was submitted that in any event, the entire record was not produced before the
labour court despite the management being asked by the court to do so and,
therefore, the labour court was right in coming to the conclusion that the
management had suppressed its records from the court. In the circumstances, it
was urged that the division bench ought not to have interfered with the
concurrent findings of fact recorded by the labour court in its award dated
27.10.1999. Learned advocate further contended that the workman had stepped
into witness box; that he had tendered and produced the certificate (Ex.W1) and
that both the labour court and the learned single judge had accepted its
correctness and, therefore, the division bench ought not to have interfered
with the said findings. Learned advocate further contended that the appellant
had worked for 240 days within the meaning of section 25-F of 1947 Act and his
non-employment constituted retrenchment under section 2(oo) of the said Act. He
contended that the services of the appellant was terminated in breach of
section 25-F of 1947 Act and, therefore, the labour court was right in ordering
reinstatement. Learned advocate further submitted that no reasons have been
given by the High Court for disbelieving Ex.W1 and for coming to the conclusion
that Ex.W1 was fabricated document. Learned advocate further contended that the
division bench of the High Court had erred in placing reliance on the judgment
of this court in the case of Range Forest Officer (supra), as in the present
case, the appellant workman had entered the witness box and had produced
cogent evidence in the form of certificate Ex.W1 which shows that the appellant
had worked between 22.11.1988 to 20.6.1994 as a daily wager. Hence, the learned
advocate submitted that the division bench had erred in interfering with the
concurrent findings of fact.
Ms. Anitha Shenoy, learned advocate for the management, on the other hand,
urged that the "Irrigation department" was not an
"industry" as defined under section 2(j) of the 1947 Act. She
contended that the judgment of this court in the case of Bangalore Water Supply
& Sewerage Board v.
A. Rajappa reported in (1978) 2 SCC 213 has been referred to the larger
bench by a referral order dated 5.5.2005 in the case of State of U.P. v. Jai
Bir Singh reported in (2005) 5 SCC 1 and consequently, she requested this court
to adjourn the matter sine die.
On the merits of the matter, learned advocate submitted that the burden of
proof was on the appellant to show that he had worked for 240 days in the
preceding 12 months prior to his alleged retrenchment; that the
appellant-workman in the present case had neither produced the letter of
appointment nor letter of termination and, therefore, there was nothing on
record to support his case of having worked for 240 days within the meaning of
"continuous service" as defined under section 25-B of the 1947 Act.
Learned advocate further contended that Ex.W1 contained discrepancies and,
therefore, the High Court was right in holding that the said document was
fabricated.
Learned advocate further contended that in any event Ex.W1 does not indicate
as to whether the workman had worked for each and every day between 22.11.1988
and 20.6.1994 or whether he had worked for 240 days during the aforestated
period and in the circumstances, the labour court had erred in coming to the
conclusion that the appellant had worked for 240 days in the year preceding his
termination. Therefore, according to the learned advocate, the workman had
failed to discharge the burden of proving that he had worked for 240 days prior
to the termination of his service. In this connection, reliance was placed on
the judgments of this court in the case of Range Forest Officer (supra);
Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan & Others
reported in (2004) 8 SCC 161, M.P. Electricity Board v.
Hariram reported in (2004) 8 SCC 246.
At the outset, we may mention that we are not inclined to adjourn the matter
sine die pending the decision of the larger bench as urged on behalf of the
management, particularly in view of the fact that there is nothing on record to
indicate that the management had argued the point in question. As stated above,
the labour court had ruled that the "Irrigation department" was an
"industry" in terms of section 2(j) of the 1947 Act. Against the
award of the labour court, the department had filed its writ petition in which
the ground was taken as a plea to the effect that the Irrigation department was
not an industry in terms of section 2(j) of the said Act.
However, there is nothing in the decision of the learned single judge as
well as in the impugned judgment to show as to whether the management had
argued on this aspect of the case and, therefore, we are not inclined to await
the decision of the larger bench following referral order in the case of Jai
Bir Singh (supra). Even in the counter affidavit filed before this court, no
such plea has been taken.
Now coming to the question of burden of proof as to the completion of 240
days of continuous work in a year, the law is well settled. In the case of
Manager, Reserve Bank of India, Bangalore v. S. Mani reported in (2005) 5 SCC
100, the workmen raised a contention of rendering continuous service between
April, 1980 to December, 1982 in their pleadings and in their representations.
They merely contended in their affidavits that they had worked for 240 days.
The tribunal based its decision on the management not producing attendance
register. In view of the affidavits filed by the workmen, the tribunal held
that the burden on the workmen to prove 240 days service stood discharged. In
that matter, a three-judge bench of this court held that pleadings did not
constitute a substitute for proof and that the affidavits contained
self-serving statements;
that no workman took an oath to state that they had worked for 240 days;
that no document in support of the said plea was ever produced and, therefore,
this court took the view that the workmen had failed to discharge the burden on
them of proving that they had worked for 240 days. According to the said
judgment, only by reason of non-response to the complaints filed by the
workmen, it cannot be said that the workmen had proved that they had worked for
240 days. In that case, the workmen had not called upon the management to
produce relevant documents. The court observed that the initial burden of
establishing the factum of continuous work for 240 days in a year was on the
workmen. In the circumstances, this court set aside the award of the industrial
tribunal ordering reinstatement.
In the case of Municipal Corporation, Faridabad v. Siri Niwas reported in
(2004) 8 SCC 195, the employee had worked from 5.8.1994 to 31.12.1994 as a
tube-well operator. He alleged that he had further worked from 1.1.1995 to 16.5.1995.
His services were terminated on 17.5.1995 whereupon an industrial dispute
was raised. The case of the employee before the tribunal was that he had
completed working for 240 days in a year; the purported order of retrenchment
was illegal as the conditions precedent to section 25-F of Industrial Dispute
Act were not complied with. On the other hand, the management contended that
the employee had worked for 136 days during the preceding 12 months on daily
wages. Upon considering all the material placed on record by the parties to the
dispute, the tribunal came to the conclusion that the total number of working
days put in by the employee were 184 days and thus he, having not completed 240
days of working in a year, was not entitled to any relief. The tribunal noticed
that neither the management nor the workman cared to produce the muster roll
w.e.f. August, 1994; that the employee did not summon muster roll although the
management had failed to produce them.
Aggrieved by the decision of the tribunal, the employee filed a writ
petition before the High Court which took the view that since the management
did not produce the relevant documents before the industrial tribunal, an
adverse inference should be drawn against it as it was in possession of best evidence
and thus, it was not necessary for the employee to call upon the management to
do so. The High Court observed that the burden of proof may not be on the
management but in case of non-production of documents, an adverse inference
could be drawn against the management. Only on that basis, the writ petition
was allowed holding that the employee had worked for 240 days. Overruling the
decision of the High Court, this court found on facts of that case that the
employee had not adduced any evidence before the court in support of his
contention of having complied with the requirement of section 25-B of
Industrial Dispute Act; that apart from examining himself in support of his
contention, the employee did not produce or call for any document from the
office of the management including the muster roll (MR) and that apart from
muster rolls, the employee did not produce offer of appointment or evidence
concerning remuneration received by him for working during the aforementioned
period. It is in this light that this court, speaking through Hon'ble Sinha,
J., has held as follows:
"15. A court of law even in a case where provisions of the 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 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.
16. No reason has been assigned by the High Court as to why the exercise of
discretional jurisdiction of the Tribunal was bad in law. In a case of this
nature, it is trite, the High Court exercising the power of judicial review,
would not interfere with the discretion of a Tribunal unless the same is found
to be illegal or irrational." In the case of Range Forest Officer (supra),
the dispute was referred to the labour court as to whether the workman had completed
240 days of service. Vide award dated 10.8.1988, the tribunal held that the
services were wrongly terminated without giving retrenchment compensation. In
arriving at this conclusion, the tribunal stated that in view of the affidavit
of the workman saying that he had worked for 240 days, the burden was on the
management to show justification in termination of the service. It is in this
light that the division bench of this court took the view that the tribunal was
not right in placing the burden on the management without first determining on
the basis of cogent evidence that the workman had worked for 240 days in the
year preceding his termination.
This court held that it was for the claimant to lead evidence to show that
he had worked for 240 days in the year preceding his termination; that filing
of an affidavit is only his own statement in his own favour which cannot be
recorded as sufficient evidence for any court or tribunal to come to the
conclusion that a workmen had worked for 240 days in a year. This court found
that there was no proof of receipt of salary or wages for 240 days; that letter
of appointment was not produced; that letter of termination was not produced on
record and, therefore, award was set aside.
In the case of Rajasthan State Ganganagar S. Mills Ltd.
(supra), the workman had alleged that he had worked for more than 240 days
in the year concerned, which claim was denied by the management. The workman
had merely filed an affidavit in support of his case. Therefore, the division
bench of this court took the view that it was for the claimant to lead evidence
to show that he had worked for 240 days in the year preceding his termination.
This court observed that filing of an affidavit was not enough because the
affidavit contained self- serving statement of the workman which cannot be
regarded as sufficient evidence for any court or tribunal to come to the
conclusion that the claimant had worked for 240 days in a year.
Further, this court found that there was no proof of receipt of salary or
wages for 240 days and, therefore, 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. On the facts of that case, the
court found that even if the period for which the workman had alleged to have
worked was taken into account, as mentioned in his affidavit, still the said
workman did not fulfill the requirement of completion of 240 days of service
and, therefore, this court set aside the award of the labour court.
In the case of M.P. Electricity Board (supra), the workmen were engaged by
the board on daily wages for digging pits to erect electric polls. It was the
case of the board that on completion of the project, the employment was terminated
and whenever a similar occasion arose for digging pits, the workmen were
re-employed on daily wages and, therefore, their employment was not permanent
in nature nor had the workmen completed 240 days of continuous work in a given
year. The project jobs came to an end in 1991 and the workmen were never
re-employed by the board. Being aggrieved by the said non-employment, the
workmen filed applications under MP Industrial Relations Act seeking permanent
employment, primarily on the ground that they have completed 240 days in a year
and their discontinuation of service amounted to retrenchment without following
the legal requirements. The board denied the allegations made in the
application before the labour court. An application was moved before the labour
court by the workmen seeking direction to the board to produce the muster roll
for the concerned period.
However, no other material was produced by the workmen to establish the fact
that they had worked for 240 days continuously in a given year. Some of the
workmen were also examined before the labour court. However, no document was
produced in the form of letter of appointment, receipt indicating payment of
salary etc. After examining the entry in the muster rolls, the labour court
came to the conclusion that the workmen had not worked for 240 days
continuously in a given year, hence, they could not claim permanency nor could
they term their non-employment as retrenchment. Aggrieved by the award of the
labour court, the workmen preferred an appeal before the industrial court at
Bhopal which took the view that since the board has failed to produce the
entire muster roll for the year ending 1990, an adverse inference was required
to be drawn against the board and solely based on the said inference, the industrial
court accepted the case of the workmen that they had worked for 240 days
continuously in a given year.
Accordingly, the industrial court granted reinstatement to the workmen with
50% back wages. Drawing of such an adverse inference was challenged before this
Court by the MP Electricity Board. In the light of the aforestated facts, this
court opined that the industrial court or the High Court could not have drawn
an adverse inference for non-production of the muster rolls for the years 1990
to 1992, particularly in the absence of a specific plea by the claimants that
they had worked during the period for which muster rolls were not produced.
This court observed that initial burden of establishing the factum of their
continuous work for 240 days in a year was on the workmen and since that burden
was not discharged, the industrial court and the High Court had erred in
ordering reinstatement solely on an adverse inference drawn erroneously.
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 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 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.
Now applying the above decision to the facts of the present case, we find
that the workman herein had stepped in the witness box. He had called upon the
management to produce the nominal muster rolls for the period commencing from
22.11.1988 to 20.6.1994. This period is the period borne out by the certificate
(Ex.W1) issued by the former Asstt.
Executive Engineer. The evidence in rebuttal from the side of the management
needs to be noticed. The management produced five nominal muster rolls (NMRs),
out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the
concerned period. The relevant NMRs produced by the management were Ex.M4 and
Ex.M5, which indicated that the workmen had worked for 43 days during the
period 21.1.1994 to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively. There is
no explanation from the side of the management as to why for the remaining
period the nominal muster rolls were not produced. The labour court has rightly
held that there is nothing to disbelieve the certificate (Ex.W1). The High
Court in its impugned judgment has not given reasons for discarding the said
certificate. In the circumstances, we are of the view that the division bench
of the High Court ought not to have interfered with the concurrent findings of
fact recorded by the labour court and confirmed by the learned single judge
vide order dated 7.6.2000 in writ petition no.17636 of 2000. This is not,
therefore, a case where the allegations of the workman are founded merely on an
affidavit. He has produced cogent evidence in support of his case. The workman
was working in SD-1, Athani and Ex.W1 was issued by the former Asstt.
Executive Engineer, Hipparagi Dam Construction Division No.1, Athani-591304.
In the present case, the defence of the management was that although Ex.W1
refers to the period 22.11.1988 to 20.6.1994, the workman had not worked as a
daily wager on all days during that period. If so, the management was duty
bound to produce before the labour court the nominal muster rolls for the
relevant period, particularly when it was summoned to do so. We are not placing
this judgment on the shifting of the burden. We are not placing this case on
drawing of adverse inference. In the present case, we are of the view that the
workman had stepped in the witness box and his case that he had worked for 240
days in a given year was supported by the certificate (Ex.W1). In the
circumstances, the division bench of the High Court had erred in interfering
with the concurrent findings of fact.
Before concluding, we would like to make an observation with regard to cases
concerning retrenchment/termination of services of daily waged earners,
particularly those who are appointed to work in Government departments. Daily
waged earners are not regular employees.
They are not given letters of appointments. They are not given letters of
termination. They are not given any written document which they could produce
as proof of receipt of wages. Their muster rolls are maintained in loose
sheets. Even in cases, where registers are maintained by the Government
departments, the officers/clerks making entries do not put their signatures.
Even where signatures of clerks appear, the entries are not countersigned or
certified by the appointing authorities.
In such cases, we are of the view that the State Governments should take
steps to maintain proper records of the services rendered by the daily wagers;
that these records should be signed by the competent designated officers and
that at the time of termination, the concerned designated officers should give
certificates of the number of days which the labourer/daily wager has worked.
This system will obviate litigations and pecuniary liability for the
Government.
Accordingly, we find merit in this appeal. We set aside the impugned
judgment of the division bench dated 3.9.2000 and we restore the award of the
labour court dated 27.10.1999 in I.D. Reference No.59/97. The name of the
appellant will be restored as a daily wager in the nominal muster roll.
Accordingly, the appeal is allowed with no order as to costs.
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