Dir.,Fisheries
Terminal Division Vs. Bhikubhai Meghajibhai Chavda [2009] INSC 1709 (9 November
2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7463 OF
2009 (Arising out of SLP(C) No. 14117 of 2008) Director, Fisheries Terminal
Division ..........Appellant Versus Bhikubhai Meghajibhai Chavda
.......Respondent
H.L.
Dattu,J.
1.
Leave granted.
2.
This is an appeal against the judgment and order of the Gujarat
High Court in S.C.A. No. 29355 of 2007 dated 30.11.2007. By the impugned
judgment, the court has affirmed the award passed by the labour court,
Junagadh, in Reference Case No. 192 of 1995 dated 14th May, 2007, wherein and
whereunder the labour court has directed the employer to reinstate the workman
into service with 20% back wages.
3.
The facts in brief are : The Fisheries Terminal Department;
(`F.T.D.'
for short), the appellant herein, had come into existence sometime in the year
1976. The activities of F.T.D. inter alia consisted of providing landing
facilities for catching fish in a clean and hygienic condition and for that
purpose, services of daily wage workmen were utilized as and when it was
needed. While this practice was going on, the State Government by its order
dated 17.10.1988, directed all the departments of the State Government to
discontinue the practice of engaging the services of daily wage workmen and in
lieu of it to hire labourers on contractual basis.
1.
2.
3.
4.
The claim of the workman before the labour court was that he was
employed by the appellant on 1.12.1985 as watchman and he was paid daily wages
and his presence was also marked in the muster roll. It was further stated,
that, his services were terminated without giving notice and without complying
with the provisions of Industrial Disputes Act. The stand of the appellant
before the labour court was that, the workman was employed on daily wage basis in
the year 1986 and the workman had worked till 1988 and in all these years, the
workman had worked for 93 days, 145 days and 31 days respectively, and thereby
the workman had not 2 worked for more than 240 days in any preceding year. It
was also there plea, that, the appellant is a seasonal industry and, therefore,
provisions under Section 25F of Industrial Disputes Act is not attracted.
5.
The labour court on consideration of the oral and documentary
evidence, has concluded that the appellant is an industry, since there is no
evidence to show that the appropriate government had declared the appellant as
a seasonal industry or the work is performed intermittently. It has also
observed, that, the appellant has not produced any documentary evidence to show
that the workman had not completed 240 days in the preceding year and was not
in service till 1991 and, therefore, adverse inference requires to be drawn
that the workman has completed continuous service of 240 days and, accordingly,
has concluded that the appellant-employer could not have retrenched the
services of the workman without complying with the provisions of Industrial
Disputes Act. In view of the aforesaid finding and the conclusion reached, the
labour court had directed the appellant to reinstate the respondent with 20%
back wages for the period when the respondent was kept out of service.
6.
The award passed by the labour court was challenged by the
appellant before the High Court. The High Court has endorsed the award passed
by the labour court, on the ground that the labour court has rightly come to
the conclusion that the appellant has not established by leading cogent
evidence that the appellant is not a seasonal industry. It is also observed,
that, once it has come in evidence that the workman has completed 240 days of
service in the preceding year, then the initial burden is shifted on the
employer to rebut the oral evidence of the workman by producing relevant oral
and documentary evidence and since the appellant failed to produce the same
before the labour court, it was justified in concluding that the workman had
completed continuous service of 240 days during the preceding year and
accordingly had dismissed the writ petition filed by the appellant.
7.
Being aggrieved by the judgment and order passed by the High
Court, the appellant is before us in this appeal.
8.
The learned counsel for the appellant submitted, that, the
appellant industry is seasonal in nature and, the respondent was employed on a
purely temporary basis and, therefore, the onus lies on the respondent/workman
to prove that he had in fact worked for 240 4 days in the preceding year. It is
further submitted that the claim of the workman was time barred and, therefore,
the labour court ought not to have entertained the claim made by the workman,
since the workman had approached the labour court nearly after eight years from
the date he was supposed to have been terminated from service by the employer.
9.
Per contra, the learned counsel for the respondent submitted that
the workman immediately after his services were terminated by the employer, had
approached the conciliation officer and on failure of the conciliation
proceedings, had approached the State government to make reference of the
dispute for adjudication before the labour court and, therefore, it cannot be
said that the workman had approached the labour court after a long lapse of
time. It is further submitted, that, the workman in his evidence, categorically
had made statement before the labour court that he had worked for more than 240
days in a preceding year and, since that evidence is not rebutted by the
employer by producing the relevant oral and documentary evidence which would be
in their possession, the labour court was justified in drawing adverse inference
against the employer. It was further submitted, that, since the appellant
failed 5 to prove before the labour court by producing necessary evidence that
the appellant industry is seasonal in nature, the labour court has not
committed any error whatsoever, to accept the oral assertion made by the
appellant before the labour court. It is further submitted, since the findings
of the labour court cannot be said as perverse findings or based on no
evidence, the High Court was justified in declining to interfere with the
findings of fact by the labour court in a petition filed under Article 227 of
the Constitution of India.
10.
From the facts as set out herein above and the submissions made by
the learned counsel for the parties, the question that requires to be decided
whether the labour court and the High Court was justified in allowing the claim
of the workman. It is not the case of the appellant that it is not an industry
as defined under Section 2(J) of the Act, but it was its specific stand before
the labour court and also the High Court that it is only a seasonal industry
and employ workman like the respondent only during fishing season and are
relieved at the end of the season and, therefore, the labour court and the High
Court were not justified in not only directing the reinstatement of workman
into service but also the payment of 6 back wages. This submission of the
learned counsel in the appeal requires to be answered with reference to Section
25A of Industrial Disputes Act. The Section is as under:
"25A.
Application of sections 25C to 25E.-(1) Sections 25C to 25E inclusive [shall
not apply to industrial establishments to which Chapter VB applies, or--] (a)
to industrial establishments in which less than fifty workmen on an average per
working day have been employed in the preceding calendar month; or (b) to
industrial establishments which are of a seasonal character or in which work is
performed only intermittently.
(2) If a
question arises whether an industrial establishment is of a seasonal character
or whether work is performed therein only intermittently, the decision of the
appropriate Government thereon shall be final."
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
It is now well settled by several judgments of this court, that,
where a workman is employed for a seasonal work or temporary period, the
workman cannot be said to be retrenched in view of Section 2(00)(bb). It is
relevant to take note of what is stated by this court in the case of Morinda
Co-operative Sugar Mills Ltd. vs. Ram Kishan (1995) 5 SCC 653, it was stated by
this court :
"....that
since the work done by the respondents is only a seasonal work, the respondents
cannot be said to have been retrenched in view of what is stated in sub clause
(bb) of Section 2(00) of the Act."
12.
In the normal course, it is the decision of the appropriate
Government which is final in determination whether the said industry is
seasonal in nature. As has been observed by the labour court and the High
Court, there has been nothing brought on record by the appellants to support
their contention that fisheries is a seasonal industry. There has been no order
from the Government which has been produced by the appellants to state that the
fisheries industry is seasonal. There has been no mention of any decision on
the part of the appropriate Government with regard to declaring fisheries as a
seasonal industry. Therefore, we concur with the finding of the labour court
wherein they have concluded that the appellant cannot be classified as a
seasonal industry.
13.
The next contention of the learned counsel for the appellant is
that the respondent had not worked for 240 days during the preceding twelve
months on daily wages and, therefore, the respondent cannot claim any
protection under the provisions of Industrial Disputes Act, 1947. The case of the
respondent before the labour court was that as he had completed working for
more than 240 days in a year, the purported order of retrenchment is illegal,
as 8 conditions precedent as contained in Section 25F of the Industrial
Disputes Act, 1947 were not complied with.
14.
Section 25B of the Act defines "continuous service". In
terms of Sub section (2) of Section 25B that if a workman during a period of
twelve calendar months preceding the date with reference to which calculation
is to be made, has actually worked under the employer 240 days within a period
of one year, he will be deemed to be in continuous service. The respondent
claims he was employed in the year 1985 as a watchman and his services were
retrenched in the year 1991 and during the period between 1985 to 1991, he had
worked for a period of more than 240 days. The burden of proof is on the
respondent to show that he had worked for 240 days in preceding twelve months
prior to his alleged retrenchment. The law on this issue appears to be now well
settled. This court in the case of R.M. Yellatty vs. Assistant Executive
Engineer [(2006) 1 SCC 106], has observed :
"However,
applying general principles and on reading the aforesaid 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 up in the witness box. This
burden is discharged upon the workman adducing cogent 9 evidence, both oral and
documentary. In cases of termination of services of daily-waged earners, there
will be no letter of appointment of termination. There will also be no receipt
of proof of payment. Thus in most cases, the workman (the claimant) can only
call upon the employer to produce before the Court the nominal muster roll for
the given period, the letter of appointment of termination, if any, the wage
register, the attendance register, etc. Drawing of adverse inference ultimately
would depend thereafter on the facts of each case."
1.
2.
3.
4.
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6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Applying the principles laid down in the above case by this court,
the evidence produced by the appellants has not been consistent.
The
appellants claim that the respondent did not work for 240 days. The respondent
was a workman hired on a daily wage basis.
So it is
obvious, as this court pointed out in the above case that he would have
difficulty in having access to all the official documents, muster rolls etc. in
connection with his service. He has come forward and deposed, so in our opinion
the burden of proof shifts to the employer/appellants to prove that he did not
complete 240 days of service in the requisite period to constitute continuous
service. It is the contention of the appellant that the services of the
respondent were terminated in 1988. The witness produced by the appellant
stated that the respondent stopped coming to work from 10 February, 1988. The
documentary evidence produced by the appellant is contradictory to this fact as
it shows that the respondent was working during February, 1989 also. It has
also been observed by the High Court that the muster roll for 1986-87 was not
completely produced. The appellants have inexplicably failed to produce the
complete records and muster rolls from 1985 to 1991, inspite of the direction
issued by the labour court to produce the same. In fact there has been
practically no challenge to the deposition of the respondent during cross-examination.
In this regard, it would be pertinent to mention the observation of three judge
bench of this court in the case of Municipal Corporation, observed:
"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 this
contentions. The matter, however, would be different where despite direction by
a court the evidence is withheld."
16.
It is not in dispute that the respondent's service was terminated
without complying with the provisions of Section 25F of Industrial 11 Disputes
Act. Section 25G of the Act provides for the procedure for retrenchment. The
section reads- "25G. Procedure for retrenchment.- Where any workman in an
industrial establishment, who is a citizen of India, is to be retrenched and he
belongs to a particular category of workmen in that establishment, in the
absence of any agreement between the employer and the workman in this behalf,
the employer shall ordinarily retrench the workman who was the last person to
be employed in that category, unless for reasons to be recorded the employer
retrenches any other workman."
The
labour court based on the pleadings and evidence on record has come to the
conclusion that the services of some of the employees junior to the respondent
was continued after the respondent was discharged from its duties. The dates of
joining of some of the fellow employees of the respondent like Mohanbhai,
Kalubhai and Nanjibhai were not produced by the appellants. The appellants have
clearly failed to prove that the services of no junior employee was continued
when the services of the respondent was terminated. Thus, the procedure laid
down in Section 25G has also not been followed. The findings on facts by the
labour cannot be termed as perverse and need no interference.
17.
It is also the case of the appellants that there is unexplained
delay in approaching the labour court in adjudicating the imaginary 12
grievance by the respondent-workman. In our view, there is no merit in this
contention. The workman had approached the Conciliation Officer for resolving
the dispute between the employer and the employee and it is only when the
conciliation proceedings failed that the matter was referred to the labour
court for final adjudication.
18.
In view of the above discussion, we do not see any good ground to
interfere with the impugned order. Accordingly, appeal requires to be dismissed
and it is dismissed. No order as to costs.
.......................................J. [ TARUN CHATTERJEE ]
.......................................J. [ H.L. DATTU ]
New Delhi,
November 09, 2009.
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