SUPREME COURT OF INDIA
Surendranagar Distt. Panchayat and Another
Vs
Gangaben Laljibhai and Others
Appeal (Civil) 6383 of 2005
(Arijit Pasayat and L. S. Panta, JJ)
03.07.2006
ARIJIT PASAYAT, J.
Appellants challenge correctness of the judgment rendered by a Division Bench
of the Gujarat High Court dismissing the Letters Patent Appeal filed by the
appellants. By the impugned judgment the Division Bench upheld the decision of
learned Single Judge.
Background facts in a nutshell are as follows :
State 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 termination.
There was no appearance on behalf of respondent in spite of notice.
The labour 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.
It is 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.
The view expressed by the High Court is clearly untenable.
In a 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
, it was held as follows:
"2. In the 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. The
Tribunal 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.
3. 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 17. 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 4.
In Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr.
, the position was again reiterated in paragraph 6 as follows:
"It 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 . 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 , 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 the position was again reiterated in paragraph 11 as
follows:
"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 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 2004
(7) JT 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 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. 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:
"So 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 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.
In a recent judgment in R.M. Yellatti v. The Asst. Executive Engineer ,
the decisions referred to above were noted and it was held as follows:
"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."
The above position was again reiterated in a recent judgment in ONGC Ltd. and
Another v. Shyamal Chandra Bhowmik 2006 (1) SCC 337.
It was 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.
In the 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 produced. The respondents have not adduced any evidence except making oral
statement that they had worked for more than 240 days.
Above 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.
The 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.