Distt. Panchayat & Anr Vs. Gangaben Laljibhai & Ors  Insc 358 (3 July 2006)
Pasayat & Lokeshwar Singh Panta Arijit Pasayat, J.
challenge correctness of the judgment rendered by a Division Bench of the
Gujarat High Court dismissing the Letters Patent Appeal filed by the
impugned judgment the Division Bench upheld the decision of learned Single
facts in a nutshell are as follows :
of Gujarat had made a reference to the Labour Court, Surendra Nagar under
Section 10 of the Industrial Disputes Act, 1947 (in short the 'Act')basically
on the question whether the alleged termination of the services of the
respondents was valid. Claim of the respondents was that they had worked for various
period beyond 240 days in each of the years right from the beginning and
therefore, the discharge from service of the respondents by oral intimation was
not valid. Appellants refuted the stand by stating that the nature of the work
was purely on daily wages basis depending upon both on work and funds. They
specifically pleaded that none of the respondents had completed 240 days in any
of the years right from the beginning. As work was not available they were
orally asked not to come for work, and there was thus no retrenchment or
was no appearance on behalf of respondent in spite of notice.
court noted that the details pertaining to attendance of the respondent have
been produced, and zerox copies of the salary register and muster roll have
also produced. The labour court came to hold that the workman's plea in each
case that he had worked for various periods for more than 240 days in a year
was established and there was non-compliance of the provisions of Section 25-F
of the Industrial Disputes Act, 1947 (in short the 'Act') and as such
termination was illegal. They were awarded back wages. The writ petitions filed
were dismissed and so was the Letters Patent Appeal as indicated above.
to be noted that the Labour
Court and the High
Court proceeded on the basis as if the burden of proving that the concerned
employee has not worked for 240 days in the preceding year immediate to the
date of termination lies on the employer.
view expressed by the High Court is clearly untenable.
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:
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.
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.
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 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." The 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." In 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." In 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 (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 appellant's case 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.
recent judgment in 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." The above position was again
reiterated in a recent judgment in ONGC Ltd. and Another v. Shyamal Chandra Bhowmik
(2006 (1) SCC 337).
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.
instant case the labour court and the High Court also lost sight of the fact
that the zerox copies of the appellant's attendance and salary registers were
respondents have not adduced any evidence except making oral statement that
they had worked for more than 240 days.
being the position the Award of the Labour Court and impugned judgment of the learned Single Judge as
affirmed by the Division Bench are set aside.
appeal is allowed. There shall be no order as to costs. In case any of the
respondents has been reinstatement pursuant to the order of the Labour Court/High Court, salary and other emoluments paid
to him shall not be recovered.