CASE NO.:
Appeal (civil) 9668 of 2003
PETITIONER:
Surendranagar District Panchayat and Anr.
RESPONDENT:
Jethabhat Pitamberbhai
DATE OF JUDGMENT: 25/10/2005
BENCH:
S.N. Variava & P.P. Naolekar
JUDGMENT:
J U D G M E N T
P.P. Naolekar, J.
The State of Gujarat had referred the industrial
dispute to the Labour Court, Surendranagar for
adjudication as to whether Shri Jethabhai Pitambarbhai
is to be reinstated at its original position with full
payment of salary. The dispute arose as the appellant
herein had terminated the services of the respondent.
After notice the workman-respondent filed his claim
contending therein that he had been in employment
with appellant for last three years as a Daily Wager and
was drawing an amount of Rs.22.70 per day; that on
1.4.1991, he was given an oral notice and was
discharged from service. At the time of his discharge
he was not given any written notice or payment in lieu
thereof. His seniority had not been considered, and
employees who were junior to him were continued in
service whereas he was terminated. It was also alleged
that after the termination of his service, fresh
recruitments were made. In response, the employer
had filed its reply and contended that the respondent
was called for work, which depended upon the
availability of the work and funds. The respondent had
never completed 240 days in any of the year right from
the beginning; that the services of the respondent was
orally terminated due to non availability of work and
there was no retrenchment or termination within the
meaning of the Industrial Disputes Act 1947
(hereinafter to be referred to as the 'Act').
Both the parties led evidence. It is recorded by
the Labour Court in Paragraph 4 of its Judgment that
Exhibit 8 is the details pertaining to the attendance of
applicant, which has been produced with application.
The xerox copy of attendance register and muster
register has been produced at Ex.10. On the basis of
the oral evidence, the Labour Court came to the
conclusion that the workman proved his case that he
had worked with the employer for the last 10 years and
the last wages drawn by him was Rs.22.50 and that he
was discharged on 1.4.1991. That being the case,
there was non compliance of the provisions of law and
therefore set aside the termination order dated
1.4.1991 declaring it illegal. The workman was
awarded 25% amount of his salary from 20.6.1996
onwards.
The Department had unsuccessfully challenged the
order of reinstatement before the High Court. The High
Court held that the finding of the Labour Court that the
employee had completed more than 240 days in a year
on the basis of the deposition of the employee was not
controverted by showing any reliable evidence, and the
statement showing the year wise presence in the
Attendance Register without proving it from the original
record, couldnot be relied upon. The High Court held
that the employee had completed more than 240 days
in a year and that it was not open for it to go beyond
the findings arrived at by the Labour Court.
From the tenor of the Judgment of the Labour
Court and the High Court, it is apparent to us that the
judgment has proceeded on the premises as if the
burden of proof lies on the employer to prove that the
employee had not worked with him for 240 days in the
preceding year immediately the date of his termination.
Even if we assume that the burden of proof lies on the
employer, we find from the record that the employer
has filed a Xerox copy of the Attendance Register and
the Muster Roll which indicate that in the year 1984 the
workman has worked for 38 days, in the year 1985-not
a single day, in 1986- 72 days, in 1987-25 days, in
1988- not a single day, in 1989-92 days, in 1990- 82
days, and in 1991 not a single day. The Attendance
Register and the muster roll clearly indicate that in
none of the years from 1984 to 1991 the workman ever
worked in the Department of his employer continuously
for a year to constitute continuous service of one year.
The claimant, apart from his oral evidence has not
produced any proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit under
Section 25F of the Industrial Disputes Act. It is now
well settled that it is for the claimant to lead evidence
to show that he had in fact worked for 240 days in a
year preceding his termination.
In Mohan Lal vs. Management of M/s. Bharat
Electronics Ltd., (1981) 3 SCC 225, it is said by
this Court that before a workman can claim
retrenchment not being in consonance of Section 25F
of the Industrial Disputes Act, he has to show that he
has been in continuous service of not less than one
year with the employer who had retrenched him from
service.
In Range Forest Officer vs. S.T. Hadimani,
(2002) 3 S.C.C. 25 - (At Page 26, Para 3), this
Court held that "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."
More recently, in Rajasthan State Ganganagar
S. Mills Ltd. vs. State of Rajasthan & Another ,
(2004) 8 S.C.C. 161; Municipal Corporation,
Faridabad vs. Siri Niwas, (2004) 8 S.C.C. 195 and
M.P. Electricity Board vs. Hariram, (2004) 8
S.C.C. 246, this Court has reiterated the principal that
the burden of proof lies on the workman to show that
he had worked continuously for 240 days in the
preceding one year prior to his alleged retrenchment
and it is for the workman to adduce an evidence apart
from examining himself to prove the factum of his
being in employment of the employer.
On the face of the aforesaid authorities, the
Labour Court and the High Court committed an error in
placing the burden on the employer to prove that the
workman had not worked for 240 days with the
employer. The burden of proof having been on the
workman, he has to adduce an evidence in support of
his contention that he has complied with the
requirement of Section 25B of the Industrial Disputes
Act. In the present case, apart from examining himself
in support of his contention the workman did not
produce any material to prove the fact that he worked
for 240 days. In fact the employer had produced
before the Labour Court the Attendance Register of the
workman and the muster roll clearly showing that the
workman had not worked continuously in the preceding
year with the employer or that he had worked with the
employer for 240 days in the preceding 12 months
prior to his alleged retrenchment. In the absence of
evidence on record the Labour Court and the High
Court have committed an error in law and fact in
directing reinstatement of the respondent-workman.
That being the case, the award of the Labour Court and
the judgment of the High Court, are set aside. The
appeal is allowed. However, in the circumstances of
the case, there shall be no order as to costs. If the
workman has been reinstated in pursuance of the order
of the Labour Court, salary and other emoluments paid
to him shall not be recovered.
