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CASE NO.: Appeal (civil)  1909 of 2005

PETITIONER: Chairman, Oil and Natural Gas Corporation Ltd. & Anr.                                    

RESPONDENT: Shyamal Chandra Bhowmik                                  

DATE OF JUDGMENT: 23/11/2005

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Oil and Natural Gas Corporation Ltd. (hereinafter  referred to as the ’ONGC’) calls in question legality of the  judgment rendered by a Division Bench of the Guwahati High  Court, Agartala Bench, dismissing the writ appeal filed by  the appellants and thereby affirming order passed by the  learned Single Judge in the writ petition (Civil Rule  No.144/1992).  

       Factual background in a nutshell is as follows:

       In May, 1992 respondent filed a writ petition before  the Guwahati High Court claiming that he had been working as  casual worker in ONGC since November, 1982 with intermittent  lay offs and but for such intermittent lay offs which were  deliberate, he would have worked for more than 240 days and  in any event during the period 1989-90 and 1990-91 he had  worked continuously for more than 240 days. It was averred  that from 2.12.1984 to 10.6.1985 he had worked as an  Automobile Mechanic Helper which established that he is a  skilled mechanic and entitled to the said post on a regular  basis. It was further claimed that on 10.1.1992 he made a  representation/demand seeking regularization in the post of  Automobile Mechanic but the same was rejected by  communication dated 30.4.1992. Respondent challenged the  said decision in a Writ Petition (Civil Rule No. 144/1992).  In the writ petition, prayer was made to quash the said  communication and for a direction to absorb him in the  regular post of Automobile Mechanic with effect from  November, 1982 with all incidental benefits. Counter- affidavit was filed by the appellants denying the claim of  the respondent that he had been engaged for 240 days.  Respondent filed further affidavit stating that he was  called for interview for the post of Junior Security Guard  (which was open only to contingent workers who had completed  240 days service in a year) which substantiated his claim of  having worked for more than 240 days.  

       Appellants’ further stand was that during the pendency  of the writ petition, in December, 2000, demand was raised  by several unions for reinstatement for 340 workers of the  180 days category including respondent. Name of the  respondent figured in the list of 340 workers at serial  no.88. Conciliation was held and settlement was arrived at  on 27/28.1.2001. As per the settlement the contingent  workers (180 days category) were entitled to be re-engaged

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only for 2000-2001 field season, and on completion of 2000- 2001 field season, they should be disengaged with one time  lump sum terminal benefit payment calculated at Rs.3500/-  per field season for the continuous past service.  Affidavit  was filed before the High Court bringing the said settlement  on record.   

       On 6.9.2001 learned Single Judge allowed the writ  petition holding that the respondent had acquired the right  not to be terminated without following provision of Section  25-F of the Industrial Disputes Act, 1947 (in short the  ’Act’) and further directed absorption against the vacant  post subject to qualifying eligibility as prescribed by the  applicable service law/recruitment rules. It was held that  the settlement was not applicable to the respondent as he  denied to be a member of the union.  The learned Single  Judge came to the conclusion that the settlement is not  applicable to the respondent’s case. He accepted the  respondent’s claim of having completed continuous period of  240 days in preceding twelve months. The said order of the  learned Single Judge was challenged by the appellants in  Writ Appeal. Alongwith the Appeal Memo, the appellants filed  several documents in support of their contention that  respondent had not worked for 240 days. During the course of  hearing, Division Bench of the High Court directed the  appellants to file some documents. In response to it,  certain documents were filed in July, 2004. The Division  Bench, however, did not consider the additional documents  filed by the appellants on the ground that they could not be  permitted to be produced at appellate stage. It dismissed  the writ appeal primarily on two grounds.  Firstly, it was  held that ONGC had not established that the respondent had  not worked for more than 240 days in twelve months preceding  retrenchment and that it failed to establish that the  respondent was a member of any union.  The dismissal of the  writ appeal is challenged herein.   

       In support of the appeal, Mr. G.E. Vahanvati, learned  Solicitor General, submitted that the approach of the High  Court is clearly erroneous. It was not for the appellants to  establish that the respondent had not worked for more than  240 days.  On the contrary it was for the respondent-workman  to establish the said fact. Similarly, the binding nature of  settlement has not been noticed by the High Court and  erroneously it was held that the appellants have not  established that the respondent was a member of any union.   According to him, the respondent-workman was required to  establish that (a) he had worked for more than 240 days; and  (b) that he was not a member of any union.  Since disputed  questions of fact were involved, the High Court should not  have entertained the writ petition. It was pointed out that  in several Bio-Data Forms filled and filed by the respondent  (required to be filed by the contractual/casual worker), the  respondent had acknowledged that he had worked for less than  240 days in each year he served. Reference in this regard is  also made to several documents filed as part of Annexure ’P’  of the rejoinder affidavit before this Court. It is pointed  out that the respondent himself has accepted that the  certificate issued to him reflected that he had worked for  less than 240 days.      

       On the contrary, learned counsel for the respondent- workman submitted that the High Court has rightly placed  onus on the appellants as the initial burden to establish  that he had worked for more than 240 days has been

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discharged.  Further, no explanation has been given as to  how the respondent could be called to interview which was  restricted to persons who had completed more than 240 days  of engagement.   

       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 (2002 (3) SCC 25), 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 (2001) 9 SCC 713.  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 (2002 (8) SCC 400).

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       In Rajasthan State Ganganagar S. Mills Ltd. v. State of  Rajasthan and Anr. (2004 (8) SCC 161), 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 (2002 (3) SCC 25).  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 (2004  (8) SCC 195), 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 (2004 (8) SCC 246) 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 JT 2004 (7) SC 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

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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. (2005(5) SCC 100) 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 (7) Supreme 165) 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 (2002 (3) SCC 25)  the onus is on the workman."  

The position was examined in detail 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 (JT 2005 (9) SC 340), 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

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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."

       When examined with reference to the principle laid down  in the aforesaid decisions, it is clear that the approach of  the High Court i.e. the learned Single Judge as endorsed by  the Division Bench, is not correct.  The relevant issue was  not considered in its proper perspective.  The respective  stand was to be examined in the light of law laid down by  this Court in the decisions referred to above.  The question  of shifting of onus assumes relevance only when evidence is  led.  Almost all the decisions referred to above related to  matters which came to the High Court after evidence was led  before the Tribunal by the contesting parties. High Courts  should not entertain writ petitions directly when claim of  service of more than 240 days in a year is raised.  Whether  a person has worked for more than 240 days or not is a  disputed question of fact which is not to be examined by the  High Court.  Proper remedy for the person making such a  claim is to raise an industrial dispute under the Act so  that the evidence can be analysed and conclusion can be  arrived at.  As in the instant case the legal position has  not been analysed in the proper perspective, it would be  appropriate if the matter is decided by the forum provided  under the Act.

       In the circumstances we set aside the judgment of the  learned Single Judge as affirmed by the Division Bench and  direct that in case a dispute is raised before the  appropriate Government, it shall refer the matter to the  concerned Tribunal for adjudication within two months from  the date of receipt of the dispute.  The concerned Tribunal  would make an effort to dispose of the reference within six  months from the date of its reference.  Normally, it is for  the appropriate Government to decide whether a reference is  called for. But in view of the undisputed position that  industrial dispute does exist, in the peculiar facts of the  case, we direct the Government to make a reference.  This  would also shorten the period of litigation.

       The reference shall be on the questions as to whether  (a) the workman’s claim that he had worked continuously for  more than 240 days is correct and (b) whether the settlement  arrived at on 27/28 January, 2001 is binding on the workman.   We make it clear that we have not expressed any opinion on  the merits of the case.

       Appeal is accordingly allowed, but with no order as to  costs.