SUPREME COURT OF INDIA
Municipal Corporation, Faridabad
Vs.
Siri Niwas
C.A.No.1851 of 2002
(N.Santosh Hegde and S.B.Sinha JJ.)
06.09.2004
JUDGMENT
S.B. Sinha, J.
1. Both these appeals involving similar questions of fact that law were taken
up for hearing together and are being disposed of by this common judgment.
2. The factual matrix of the matter, however, is being noticed from Civil
Appeal No. 1851 of 2002.
3. The Appellant is in appeal before us being aggrieved by and dissatisfied
with the judgment and order dated 3.5.2001 passed by the learned Single Judge
of the Punjab and Haryana High Court in CWP No. 624 of 2000 whereby and
whereunder the writ petition filed by the respondent herein, questioning an
Award dated 13.8.1999 passed by the Industrial Tribunal, Faridabad, was
allowed.
4. The basic fact of the matter is not much in dispute. The respondent herein
allegedly worked with the Appellant herein from 5.8.1994 to 31.12.1994 as
Tubewell Operator. He allegedly further worked from 1.1.1995 to 16.5.1995 at
Sector 37, Old Zone II. His services were terminated on or about 17.5.1995
whereupon an industrial dispute was raised.
5. The Government of Haryana made a reference before the Presiding Officer,
Industrial Tribunal-cum-Labour Court I, vide Haryana Government Endst. No.
32410-15 dated 7.10.1995, in exercise of the power conferred by Clause (c) of
Sub-Section (1) of Section 10 of the Industrial Disputes Act, 1947 in the
following terms:
"Whether there is justification in the termination of the services of Shri
Niwas and if not, to what relief he is entitled to."
6. The case of the respondent before the Tribunal was that as he had completed
working for 240 days in a year, the purported order of the retrenchment is
illegal as conditions precedent therefor as contained in Section 25F of the Industrial
Disputes Act, 1947 were not complied with. The contention of the Appellant
herein, on the other hand, was that the said respondent had worked only for 136
days during the preceding twelve months on daily wages and had no lien over the
said job.
7. The Tribunal upon considering all the materials placed on records by the
parties to the dispute came to the conclusion that the total number of working
days of the workman was 184 days and thus, he having not completed 240 days of
working in a year was not entitled to any relief. The learned Tribunal noticed
that neither the Management nor the workman cared to produce the muster rolls
with effect from August, 1994 which was their joint liability. It was further
observed that the workman even did not summon the same although the Management
had not produced the muster rolls.
8. The respondent being aggrieved by and dissatisfied with the said Award filed
a writ petition before the Punjab and Haryana High Court which was marked at
CWP No. 624 of 2000. Before the High Court the respondent produced certain
documents which do not appear to have been taken on records.
9. The High Court opined:
".. Be that as it may, respondent in their written statement has accepted
the fact that the petitioner was kept on 1.1.1995 and he worked upto 16.9.1995.
This span of working period as mentioned by the respondent is of course more
than 240 days. The question is whether the petitioner has actually worked for
this period or not."
10. The High Court, however, was of the view that as the Appellant herein did
not produce the relevant documents before the Industrial Tribunal, an adverse
inference should be drawn against it, as it was in possession of the best,
evidence and, thus, it was not necessary for the first respondent herein to
call upon the Appellant to do so. The High Court furthermore was of the view
that the burden of proof may not be upon the Appellant but in case of
non-production of the documents, an adverse inference could be drawn against
him. Only on that basis the writ petition was allowed holding that it could be
presumed that the respondent had worked for 240 days. Consequently the
respondent was directed to be reinstated in service with 75% back wages from
the date of demand.
11. Mr. Praveen Kumar Rai, the learned counsel appearing on behalf of the
Appellant, would submit that the High Court committed a serious error of law insofar
as it allowed the writ petition filed by the respondent herein only on the
basis of an adverse inference drawn by it by non-production of the muster
rolls.
12. Mr. D.K. Thakur, learned counsel appeared on behalf of the respondent, on
the other hand, would support the judgment of the High Court.
13. The provisions of the Indian Evidence Act per se are not applicable in an
industrial adjudication. The general principles of it are, however, applicable.
It is also imperative for the Industrial Tribunal to see that the principles of
natural justice are complied with. The burden of proof was on the respondent
herein to show that he had worked for 240 days in preceding twelve months prior
to his alleged retrenchment. In terms of Section 25-F of the Industrial
Disputes Act, 1947, an order retrenching a workman would not be effective
unless the conditions precedent therefor are satisfied. Section 25-F postulates
the following conditions to be fulfilled by employer for effecting a valid
retrenchment.
“(i) one month's notice in writing indicating the reasons for retrenchment or
wages in lieu thereof;
(ii) payment of compensation equivalent to fifteen days, average pay for every
completed year of continuous service or any part thereof in excess of six
months.”
14. For the said purpose it is necessary to notice the definition of
'Continuous Service' as contained in Section 25-B of the Act. In terms of
sub-Section (2) of Section 25-B 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. By reason of the said
provision, thus, a legal fiction is created. The retrenchment of the respondent
took place on 17.5.1995. For the purpose of calculating as to whether he had
worked for a period of 240 days within one year or not, it was, therefore,
necessary for the Tribunal to arrive at a finding of fact that during the
period between 5.8.1994 to 16.5.1995 he had worked for a period of more than
240 days. As noticed hereinbefore, the burden of proof was on the workman. From
the Award it does not appear that the workman adduced any evidence whatsoever
in support of his contention that he complied with the requirements of Section
25B of the Industrial Disputes Act. Apart from examining himself in support of
his contention he did not produce or call for any document from the office of
the Appellant herein including the muster rolls. It is improbable that a person
working in a Local Authority would not be in possession of any documentary
evidence to support his claim before the Tribunal. Apart from muster rolls he
could have shown the terms and conditions of his offer of appointment and the
remuneration received by him for working during the aforementioned period. He
even did not examine any other witness in support of his case.
15. 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, in 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.
17. In Mahant Shri Srinivas Ramanuj Das vs. Surajanarayan Das and Another this court held:
"28... The Mahant has not come in the witness box. All the documents have
not been produced. In fact it is the plaintiff alone who produced a number of
documents but he had picked and chosen from among the documents in his
possession. Some documents which could have thrown some light on the question
under determination have not been produced. It is true that the
defendant-respondent also did not call upon the plaintiff-appellant to produce
the documents whose existence was admitted by one or the other witness of the
plaintiff and that, therefore, strictly speaking, no inference adverse to the
plaintiff can be drawn from his non-producing the list of documents. The Court
may not be in a position to conclude from such omission that those documents
would have directly established the case for the respondent. But it can take
into consideration in weighing the evidence or any direct inferences from
established facts that the documents might have favoured the respondent's
case."
18. Yet again in Smt. Indira Nehru Gandhi vs. Shri Raj Narain law has
been laid down by this Court in the following terms:
"The third and the last and a subsidiary submission on behalf of the
election petitioner, on election expenses was that Shri Dal Bahadur Singh not
having been produced by the original respondent, some sort of presumption
arises against the original respondent. I do not think that it is possible to
shift a burden of the petitioner on to the original respondent whose case never
was that Shri Dal Bahadur Singh spent any money on her behalf. The case of M.
Chyenna Reddy vs. Ramchandra Rao1, at p.415 (SC) was relied upon
to submit that a presumption may arise against a successful candidate from the
non-production of available evidence to support his version. Such a
presumption, under Section 114 Evidence Act, it has to be remembered, is always
optional and one of fact, depending upon the whole set of facts. It is not
obligatory."
19. Further more a party in order to get benefit of the provisions contained in
Section 114(f) of the Indian Evidence Act must place some evidence in support
of his case. Here the Respondent failed to do so.
20. The High Court in support of its judgment has relied upon the decision of
this Court in Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others ),
wherein as regards the income from a Dargah the Court amongst other evidence
took into consideration the fact that the Appellant in his evidence admitted
that he had been enjoying the income of plot in question but did not produce
any account to substantiate his contention. Despite admitting that 'he had got
record of the Dargah Income and that account was kept separately" the
Appellant therein had not produced either on his own account or the account of
the Dargah as to how the income from the said plot was dealt with. This Court
in Gopal Krishnaji case (supra) did not lay down any law that in all situations
the presumption in terms of Section 114(f) of the Indian Evidence Act must be
drawn. The said decision, thus, has no application in the fact of the present
case.
21. Curiously the respondent produced copies of some muster rolls before this
Court. If he was in possession of the said documents, it betrays one's
imagination as to why the same had not been produced before the Tribunal. As
indicated hereinbefore, he filed some documents before the High Court but the
same were not accepted. The High Court, therefore, proceeded to pass the
impugned judgment only on the basis of the materials relied on by the parties
before the Tribunal. The High Court in our opinion, committed a manifest error
in setting aside the award of the Tribunal only on the basis of adverse
inference drawn against the Appellant for not producing the muster rolls.
22. For the foregoing reasons the impugned judgments are not sustainable in law
and they are set aside accordingly.
23. These appeals are allowed. In the facts and circumstances of this case,
there shall be no order as to costs.
1(1972) 40 Ele LR 390