Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Seniority list of daily wagers

K.S.Srinivas ,
  13 September 2011       Share Bookmark

Court :
Supreme Court of India
Brief :
In absence of regular employment of workman employer is not expected to maintain the seniority list of employees engaged on daily wages, casual labourer, temporary employee. The Hon’ble Apex Court also held that in absence of proof of existence of seniority list, no relief can be given for non-compliance with the said provisions.
Citation :
Surender Nagar District Panchayat Vs DahyaBhai AmarSingh 2005 ( 8) SCC 750

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.

 

 

                                                                       

 

 
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