REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2895     OF 2009 (Arising out of S.L.P. (C) No.24529 of 2005)

Krishna Bhagya Jala Nigam Ltd.  ..Appellant

Versus

Mohammed Rafi  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of  

the Karnataka High Court allowing the writ appeal filed by the respondent.  

By the impugned judgment the Division Bench set aside the order passed by  

a learned Single Judge and the award made by the Labour Court.    

3. Background facts in a nutshell are as follows:

The workman had been working as a daily wage employee with the  

Krishna Bhagya Jala Nigam Limited (for short the ‘Jala Nigam’)  which, at  

the relevant point of time was executing the Upper Krishna Project in the  

State of Karnataka. His services were allegedly terminated which gave rise  

to an industrial dispute. According to the claim made by the workman he  

served the Jala Nigam from 29.10.1989 to 1.4.1996. He further claimed that  

his  services  were  terminated  without  complying  with  the  provisions  of  

Section  25-F of  the  Industrial  Disputes  Act  1947  (for  short  the  Act).  A  

reference under Section 10(1) (c) of the Act was made to the Labour Court,  

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Gulbarga.  Several other employees had also challenged the termination of  

their services and other references had been made to the Labour Court and  

some of  the  employees  had  also  filed  applications  before  it  under  sub-

section (4-A) of Section 10 of the Act. The reference made at the instance of  

the workman  was contested by the Jala Nigam and on a consideration of the  

oral  and  documentary  evidence  led  by  the  parties,  the  Labour  Court  

recorded a finding that the services of the workman  had been terminated  

without  complying  with  the  provisions  of  Section  25-F  of  the  Act  and  

therefore the termination was illegal. Accordingly the termination was set  

aside and the Jala Nigam was  directed to reinstate the workman with full  

back wages and continuity of service.  This award came to be challenged by  

the Jala Nigam in W.P. No.40822/1999. This writ petition was heard along  

with the writ petitions filed in the case of other workmen as well and all the  

writ petitions were disposed of by the learned single Judge by a common  

order. In the case of other workmen there was considerable delay in raising  

the industrial dispute and therefore the learned single Judge non-suited them  

on that ground. In the case of the workman  the Labour Court observed that  

there had been no delay but the provisions of Section 25-F of the Act had  

not been complied with and therefore the termination was wrongful.  The  

learned single Judge set aside the award of the Labour Court holding that  

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there was no evidence before it indicating that the workman had ever been  

in the service of the Jala Nigam.  According to the learned single Judge, the  

workman had not discharged the initial onus of proving that he had worked  

for  more  than  240  days  with  the  Jala  Nigam  and  therefore  the  award  

directing his reinstatement was illegal. The writ petition was allowed and  

the  award  of  the  Labour  Court  set  aside.  It  is  against  this  order  of  the  

learned single Judge that a writ appeal was filed before the Division Bench.  

By the impugned judgment, the writ appeal was allowed.  

4. Learned counsel for the appellant submitted that the basic approach  

of the High Court is erroneous.  It proceeded on the basis as if the period of  

employment/engagement  of  a  workman  has  to  be  established  by  the  

employer.  There is no appearance on behalf of the workman.

5. Learned counsel for the respondent-workman supported the judgment  

of the High Court.

6. 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:

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“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  

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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.”  

7. The  said  decision  was  followed  in  Essen  Deinki v.  Rajiv  Kumar  

(2002 (8) SCC 400).  

8. 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.”   

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9. 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  

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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."  

10. 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.   

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11. 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 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  

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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.”

12. The above position was again re-iterated in  ONGC Ltd. and Anr. v.  

Shyamal Chandra Bhowmik (2006 (1) SCC 337) and Chief Engineer, Ranjit  

Sagar Dam and Anr. v. Sham Lal (2006 AIR SCW 3574).

13. Appeal is allowed.  No order as to costs.

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 28, 2009

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