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CASE NO.: Appeal (civil)  5124 of 2004

PETITIONER: R.M. Yellatti                            

RESPONDENT: The Asst. Executive Engineer             

DATE OF JUDGMENT: 07/11/2005

BENCH: S.N. VARIAVA,Dr. AR. LAKSHMANAN & S.H. KAPADIA

JUDGMENT: J U D G M E N T

KAPADIA, J.

       The appellant questions the correctness of the judgment  of the High Court of judicature at Karnataka at Bangalore  whereby the High Court, in Appeal, allowed the writ petition  filed by the Assistant Executive Engineer (SD-I), Athani and  set aside the order of the Labour Court dated 27.10.1999  directing reinstatement with 50% back wages from the date of  the award till the date of reinstatement.          Facts necessary for the disposal of this appeal are as  follows:         Appellant was appointed as a daily waged earner by the  Assistant Executive Engineer on 26.11.1988.  He worked up to  20.6.1994, on which day his services were terminated.  He was  getting salary of Rs.910/- per month.  On termination, appellant  claimed that he had continuously worked for more than 240  days immediately prior to 20.6.1994 (date of termination) and  that his services were wrongly terminated without complying  with the provisions of section 25-F of the Industrial Disputes  Act, 1947 (hereinafter referred to as "the 1947 Act").   Consequently, he contended that the above termination  constituted illegal retrenchment which was liable to be set  aside.  The above industrial dispute was referred by the State  Government to the labour court vide reference under section  10(I)(c) of the 1947 Act.  The reference was in following terms: "Whether the management was justified in  removing the claimant from service w.e.f.  20.6.1994?  If not, to what reliefs the claimant was  entitled for?"

       On receipt of the said reference, the labour court issued  notices to the concerned parties.  The management resisted the  reference by filing its counter statement by which the  management contended that the appellant was not a worker in  terms of section 2(s) of the 1947 Act and consequently, he was  not entitled to claim benefit of section 25-F of the said Act.   The management also submitted that the "Irrigation  department" was not an "industry" under the said 1947 Act and  consequently, the question of compliance of section 25-F did  not arise.  Further, the appellant contended that the reference  was time barred.  

       By award dated 27.10.1999, the labour court held that the  appellant was appointed as daily waged earner and that he was  a workman under section 2(s) of the 1947 Act.  The labour

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court found on facts and on the basis of evidence led before it  that the appellant had worked with SD-1 at Athani continuously  for more than 240 days prior to 20.6.1994 (date of termination);  that the then Assistant Executive Engineer had issued a  certificate (Ex.W1) to the effect that the appellant had worked  from 24.11.1988 to 20.6.1994; that although the appellant had  been cross-examined on behalf of the management, there was  no material to disbelieve the certificate Ex.W1.  The labour  court found that Ex.W1 was duly proved.  It contained the  signature of the then Asstt. Executive Engineer.  Further, the  labour court came to the conclusion that the management had  suppressed the material evidence from the Court.  We quote  hereinbelow the findings given by the labour court in this  connection: "\005 At the outset I have to state that the  respondent has not placed all the material records  before the Court and on the other hand, the  respondent has followed the method of pick and  choose and produced some records before the  Court for some period and they are marked as  Exh. M.1 to M.15.  As per the evidence of MW.1  who has no personal knowledge of claimant has  spoken on the basis of records.  As per the  respondent the claimant has not at all worked with  the respondent at any point of time namely with  H.B.C. Athani, Belgaum District. However, when  the respondent was called upon to produce the  N.M.R. extracts for relevant period, it has chosen  to produce Ex. M.1 to M.5 and consolidated  statement showing the period for which the  claimant had worked as on 20.6.1994.  As per the  documentary evidence adduced on behalf of the  respondent and the oral version of MW.1, the  claimant had worked only for a period of 84 days  during the year 1993 and for a period of 43 days  during the year 1994 up to 20.6.1994.  The  respondent has not chosen to produce the N.M.R.  extracts for a period of 12 months immediately  prior to 20.6.1994.  Whether the name of the  claimant is found in such NMR extracts during the  said 12 calendar months prior to 20.6.1994 or not  is immaterial for respondent, it is for the Court to  arrive at conclusion or production of N.M.R.  records pertaining to the period of 12 calendar  months immediately prior to 20.6.1994.  There is  no explanation offered on behalf of the respondent  for non-production of the said N.M.R.  It is the  evidence of MW.1, the concerned NMR for the  said period are available.  In my opinion MW.1  has suppressed the material evidence before the  Court.  On perusing the oral evidence of MW.1 it  reveals that in order to suppress the real material,  it has not chosen to produce concerned N.M.R.\005"

       On the question as to whether the Irrigation department  is an industry under the 1947 Act, the labour court followed the  decision of the Karnataka High Court holding that the Irrigation  department of the Government constituted an industry within  the meaning of section 2(j) of the 1947 Act.  On the point of  limitation, the labour court held that the Limitation Act, 1963  was not applicable to the proceedings under section 10 of the  1947 Act.  However, since there was a delay of three years in  raising the industrial dispute and since the appellant was only a  daily waged earner, the labour court directed the management  to reinstate the appellant into service as a daily wager with 50%

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back wages from the date of the award till the date of  reinstatement.  

       Aggrieved by the said award, the management  challenged the award vide writ petition no.17636 of 2000.  The  said writ petition was dismissed in limine vide order dated  7.6.2000.

       Aggrieved by the decision of the learned Single Judge  dated 7.6.2000, the management carried the matter in appeal to  the division bench vide writ appeal no.5660 of 2000.  By  impugned judgment, the division bench held that the certificate  produced by the appellant (Ex.W1) nowhere stated that the  appellant was in continuous service for 240 days; that there was  no evidence on record to show that the certificate was in fact  issued by Asstt. Executive Engineer and that the records  produced by the department showed that Ex.W1 was a  fabricated document.  The division bench further observed that  the appellant herein had failed to produce the letter of  appointment, letter of termination or receipts indicating  payment of monthly salary.  The division bench observed that  except the self-serving statement of the appellant in the witness  box, there was nothing on record to support his case of having  worked for 240 days.  Following the judgment of this court in  the case of Range Forest Officer v. S.T. Hadimani reported in  (2002) 3 SCC 25, the division bench vide its impugned  judgment quashed the award passed by the labour court in  favour of the appellant.  By the impugned judgment, the  division bench also set aside the order of the learned Single  Judge.  Hence, this civil appeal.

       Shri Mahale, learned advocate for the appellant  submitted that the division bench ought not to have interfered  with the concurrent findings given by the award of the labour  court dated 27.10.1999 and by the judgment of the learned  single judge dated 7.6.2000.  He submitted that there was no  perversity in the findings recorded by the labour court.  He  submitted that full opportunity was given to the management to  produce its records.  He submitted that the management  suppressed the Nominal Muster Rolls (NMRs) which indicated  that the appellant had worked for the entire period between  22.11.1988 to 20.6.1994.  It was submitted that in any event,  the entire record was not produced before the labour court  despite the management being asked by the court to do so and,  therefore, the labour court was right in coming to the  conclusion that the management had suppressed its records  from the court.  In the circumstances, it was urged that the  division bench ought not to have interfered with the concurrent  findings of fact recorded by the labour court in its award dated  27.10.1999.  Learned advocate further contended that the  workman had stepped into witness box; that he had tendered  and produced the certificate (Ex.W1) and that both the labour  court and the learned single judge had accepted its correctness  and, therefore, the division bench ought not to have interfered  with the said findings.  Learned advocate further contended that  the appellant had worked for 240 days within the meaning of  section 25-F of 1947 Act and his non-employment constituted  retrenchment under section 2(oo) of the said Act.  He  contended that the services of the appellant was terminated in  breach of section 25-F of 1947 Act and, therefore, the labour  court was right in ordering reinstatement.  Learned advocate  further submitted that no reasons have been given by the High  Court for disbelieving Ex.W1 and for coming to the conclusion  that Ex.W1 was fabricated document.  Learned advocate  further contended that the division bench of the High Court had

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erred in placing reliance on the judgment of this court in the  case of Range Forest Officer  (supra), as in the present case,  the appellant \026 workman had entered the witness box and had  produced cogent evidence in the form of certificate Ex.W1  which shows that the appellant had worked between  22.11.1988 to 20.6.1994 as a daily wager.  Hence, the learned  advocate submitted that the division bench had erred in  interfering with the concurrent findings of fact.

       Ms. Anitha Shenoy, learned advocate for the  management, on the other hand, urged that the "Irrigation  department" was not an "industry" as defined under section 2(j)  of the 1947 Act.  She contended that the judgment of this court  in the case of Bangalore Water Supply & Sewerage Board v.  A. Rajappa reported in (1978) 2 SCC 213 has been referred to  the larger bench by a referral order dated 5.5.2005 in the case  of State of U.P. v. Jai Bir Singh reported in (2005) 5 SCC 1  and consequently, she requested this court to adjourn the matter  sine die.   

       On the merits of the matter, learned advocate submitted  that the burden of proof was on the appellant to show that he  had worked for 240 days in the preceding 12 months prior to  his alleged retrenchment; that the appellant-workman in the  present case had neither produced the letter of appointment nor  letter of termination and, therefore, there was nothing on record  to support his case of having worked for 240 days within the  meaning of "continuous service" as defined under section 25-B  of the 1947 Act.  Learned advocate further contended that  Ex.W1 contained discrepancies and, therefore, the High Court  was right in holding that the said document was fabricated.   Learned advocate further contended that in any event Ex.W1  does not indicate as to whether the workman had worked for  each and every day between 22.11.1988 and 20.6.1994 or  whether he had worked for 240 days during the aforestated  period and in the circumstances, the labour court had erred in  coming to the conclusion that the appellant had worked for 240  days in the year preceding his termination.  Therefore,  according to the learned advocate, the workman had failed to  discharge the burden of proving that he had worked for 240  days prior to the termination of his service.  In this connection,  reliance was placed on the judgments of this court in the case  of Range Forest Officer (supra); Rajasthan State  Ganganagar S. Mills Ltd. v. State of Rajasthan & Others  reported in (2004) 8 SCC 161, M.P. Electricity Board v.  Hariram reported in (2004) 8 SCC 246.

       At the outset, we may mention that we are not inclined to  adjourn the matter sine die pending the decision of the larger  bench as urged on behalf of the management, particularly in  view of the fact that there is nothing on record to indicate that  the management had argued the point in question.  As stated  above, the labour court had ruled that the "Irrigation  department" was an "industry" in terms of section 2(j) of the  1947 Act.  Against the award of the labour court, the  department had filed its writ petition in which the ground was  taken as a plea to the effect that the Irrigation department was  not an industry in terms of section 2(j) of the said Act.   However, there is nothing in the decision of the learned single  judge as well as in the impugned judgment to show as to  whether the management had argued on this aspect of the case  and, therefore, we are not inclined to await the decision of the  larger bench following referral order in the case of Jai Bir  Singh (supra).  Even in the counter affidavit filed before this  court, no such plea has been taken.

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       Now coming to the question of burden of proof as to the  completion of 240 days of continuous work in a year, the law is  well settled.  In the case of Manager, Reserve Bank of India,  Bangalore v. S. Mani reported in (2005) 5 SCC 100, the  workmen raised a contention of rendering continuous service  between April, 1980 to December, 1982 in their pleadings and  in their representations.  They merely contended in their  affidavits that they had worked for 240 days.  The tribunal  based its decision on the management not producing attendance  register.  In view of the affidavits filed by the workmen, the  tribunal held that the burden on the workmen to prove 240 days  service stood discharged.  In that matter, a three-judge bench of  this court held that pleadings did not constitute a substitute for  proof and that the affidavits contained self-serving statements;  that no workman took an oath to state that they had worked for  240 days; that no document in support of the said plea was ever  produced and, therefore, this court took the view that the  workmen had failed to discharge the burden on them of proving  that they had worked for 240 days.  According to the said  judgment, only by reason of non-response to the complaints  filed by the workmen, it cannot be said that the workmen had  proved that they had worked for 240 days.  In that case, the  workmen had not called upon the management to produce  relevant documents.  The court observed that the initial burden  of establishing the factum of continuous work for 240 days in a  year was on the workmen.  In the circumstances, this court set  aside the award of the industrial tribunal ordering  reinstatement.

       In the case of Municipal Corporation, Faridabad v. Siri  Niwas reported in (2004) 8 SCC 195, the employee had worked  from 5.8.1994 to 31.12.1994 as a tube-well operator.  He  alleged that he had further worked from 1.1.1995 to 16.5.1995.   His services were terminated on 17.5.1995 whereupon an  industrial dispute was raised. The case of the employee before  the tribunal was that he had completed working for 240 days in  a year; the purported order of retrenchment was illegal as the  conditions precedent to section 25-F of Industrial Dispute Act  were not complied with.  On the other hand, the management  contended that the employee had worked for 136 days during  the preceding 12 months on daily wages.  Upon considering all  the material placed on record by the parties to the dispute, the  tribunal came to the conclusion that the total number of  working days put in by the employee were 184 days and thus  he, having not completed 240 days of working in a year, was  not entitled to any relief.  The tribunal noticed that neither the  management nor the workman cared to produce the muster roll  w.e.f. August, 1994; that the employee did not summon muster  roll although the management had failed to produce them.   Aggrieved by the decision of the tribunal, the employee filed a  writ petition before the High Court which took the view that  since the management did not produce the relevant documents  before the industrial tribunal, an adverse inference should be  drawn against it as it was in possession of best evidence and  thus, it was not necessary for the employee to call upon the  management to do so.  The High Court observed that the  burden of proof may not be on the management but in case of  non-production of documents, an adverse inference could be  drawn against the management.  Only on that basis, the writ  petition was allowed holding that the employee had worked for  240 days.  Overruling the decision of the High Court, this court  found on facts of that case that the employee had not adduced  any evidence before the court in support of his contention of  having complied with the requirement of section 25-B of

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Industrial Dispute Act; that apart from examining himself in  support of his contention, the employee did not produce or call  for any document from the office of the management including  the muster roll (MR) and that apart from muster rolls, the  employee did not produce offer of appointment or evidence  concerning remuneration received by him for working during  the aforementioned period.  It is in this light that this court,  speaking through Hon’ble Sinha, J., has held as follows:    "15.    A court of law even in a case where  provisions of the 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.

16.     No reason has been assigned by the High  Court as to why the exercise of discretional  jurisdiction of the Tribunal was bad in law.  In a  case of this nature, it is trite, the High Court  exercising the power of judicial review, would not  interfere with the discretion of a Tribunal unless  the same is found to be illegal or irrational."   

       In the case of Range Forest Officer (supra), the dispute  was referred to the labour court as to whether the workman had  completed 240 days of service.  Vide award dated 10.8.1988,  the tribunal held that the services were wrongly terminated  without giving retrenchment compensation.  In arriving at this  conclusion, the tribunal stated that in view of the affidavit of  the workman saying that he had worked for 240 days, the  burden was on the management to show justification in  termination of the service.  It is in this light that the division  bench of this court took the view that the tribunal was not right  in placing the burden on the management without first  determining on the basis of cogent evidence that the workman  had worked for 240 days in the year preceding his termination.   This court held that it was for the claimant to lead evidence to  show that he had worked for 240 days in the year preceding his  termination; that filing of an affidavit is only his own statement  in his own favour which cannot be recorded as sufficient  evidence for any court or tribunal to come to the conclusion  that a workmen had worked for 240 days in a year.  This court  found that there was no proof of receipt of salary or wages for  240 days; that letter of appointment was not produced; that  letter of termination was not produced on record and, therefore,  award was set aside.

       In the case of Rajasthan State Ganganagar S. Mills Ltd.  (supra), the workman had alleged that he had worked for more

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than 240 days in the year concerned, which claim was denied  by the management.  The workman had merely filed an  affidavit in support of his case.  Therefore, the division bench  of this court took the view that it was for the claimant to lead  evidence to show that he had worked for 240 days in the year  preceding his termination.  This court observed that filing of an  affidavit was not enough because the affidavit contained self- serving statement of the workman which cannot be regarded as  sufficient evidence for any court or tribunal to come to the  conclusion that the claimant had worked for 240 days in a year.  Further, this court found that there was no proof of receipt of  salary or wages for 240 days and, therefore, 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.  On the facts of that case, the  court found that even if the period for which the workman had  alleged to have worked was taken into account, as mentioned in  his affidavit, still the said workman did not fulfill the  requirement of completion of 240 days of service and,  therefore, this court set aside the award of the labour court.

       In the case of M.P. Electricity Board (supra), the  workmen were engaged by the board on daily wages for  digging pits to erect electric polls.  It was the case of the board  that on completion of the project, the employment was  terminated and whenever a similar occasion arose for digging  pits, the workmen were re-employed on daily wages and,  therefore, their employment was not permanent in nature nor  had the workmen completed 240 days of continuous work in a  given year.  The project jobs came to an end in 1991 and the  workmen were never re-employed by the board.  Being  aggrieved by the said non-employment, the workmen filed  applications under MP Industrial Relations Act seeking  permanent employment, primarily on the ground that they have  completed 240 days in a year and their discontinuation of  service amounted to retrenchment without following the legal  requirements.  The board denied the allegations made in the  application before the labour court.  An application was moved  before the labour court by the workmen seeking direction to the  board to produce the muster roll for the concerned period.  However, no other material was produced by the workmen to  establish the fact that they had worked for 240 days  continuously in a given year.  Some of the workmen were also  examined before the labour court. However, no document was  produced in the form of letter of appointment, receipt  indicating payment of salary etc.  After examining the entry in  the muster rolls, the labour court came to the conclusion that  the workmen had not worked for 240 days continuously in a  given year, hence, they could not claim permanency nor could  they term their non-employment as retrenchment.  Aggrieved  by the award of the labour court, the workmen preferred an  appeal before the industrial court at Bhopal which took the  view that since the board has failed to produce the entire muster  roll for the year ending 1990, an adverse inference was required  to be drawn against the board and solely based on the said  inference, the industrial court accepted the case of the workmen  that they had worked for 240 days continuously in a given year.   Accordingly, the industrial court granted reinstatement to the  workmen with 50% back wages. Drawing of such an adverse  inference was challenged before this Court by the MP  Electricity Board.      In the light of the aforestated facts, this  court opined that the industrial court or the High Court could  not have drawn an adverse inference for non-production of the  muster rolls for the years 1990 to 1992, particularly in the  absence of a specific plea by the claimants that they had

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worked during the period for which muster rolls were not  produced.  This court observed that initial burden of  establishing the factum of their continuous work for 240 days  in a year was on the workmen and since that burden was not  discharged, the industrial court and the High Court had erred in  ordering reinstatement solely on an adverse inference drawn  erroneously.

       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.         Now applying the above decision to the facts of the  present case, we find that the workman herein had stepped in  the witness box.  He had called upon the management to  produce the nominal muster rolls for the period commencing  from 22.11.1988 to 20.6.1994.  This period is the period borne  out by the certificate (Ex.W1) issued by the former Asstt.  Executive Engineer.  The evidence in rebuttal from the side of  the management needs to be noticed.  The management  produced five nominal muster rolls (NMRs), out of which 3  NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the  concerned period.  The relevant NMRs produced by the  management were Ex.M4 and Ex.M5, which indicated that the  workmen had worked for 43 days during the period 21.1.1994  to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively.  There is  no explanation from the side of the management as to why for  the remaining period the nominal muster rolls were not  produced.  The labour court has rightly held that there is  nothing to disbelieve the certificate (Ex.W1).  The High Court  in its impugned judgment has not given reasons for discarding  the said certificate.  In the circumstances, we are of the view  that the division bench of the High Court ought not to have  interfered with the concurrent findings of fact recorded by the  labour court and confirmed by the learned single judge vide  order dated 7.6.2000 in writ petition no.17636 of 2000.  This is  not, therefore, a case where the allegations of the workman are  founded merely on an affidavit.  He has produced cogent

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evidence in support of his case.  The workman was working in  SD-1, Athani and Ex.W1 was issued by the former Asstt.  Executive Engineer, Hipparagi Dam Construction Division  No.1, Athani-591304.  In the present case, the defence of the  management was that although Ex.W1 refers to the period  22.11.1988 to 20.6.1994, the workman had not worked as a  daily wager on all days during that period.  If so, the  management was duty bound to produce before the labour court  the nominal muster rolls for the relevant period, particularly  when it was summoned to do so.  We are not placing this  judgment on the shifting of the burden.  We are not placing this  case on drawing of adverse inference.  In the present case, we  are of the view that the workman had stepped in the witness  box and his case that he had worked for 240 days in a given  year was supported by the certificate (Ex.W1).  In the  circumstances, the division bench of the High Court had erred  in interfering with the concurrent findings of fact.   

       Before concluding, we would like to make an  observation with regard to cases concerning  retrenchment/termination of services of daily waged earners,  particularly those who are appointed to work in Government  departments.  Daily waged earners are not regular employees.   They are not given letters of appointments.  They are not given  letters of termination.  They are not given any written  document which they could produce as proof of receipt of  wages.  Their muster rolls are maintained in loose sheets.  Even  in cases, where registers are maintained by the Government  departments, the officers/clerks making entries do not put their  signatures.  Even where signatures of clerks appear, the entries  are not countersigned or certified by the appointing authorities.   In such cases, we are of the view that the State Governments  should take steps to maintain proper records of the services  rendered by the daily wagers; that these records should be  signed by the competent designated officers and that at the time  of termination, the concerned designated officers should give  certificates of the number of days which the labourer/daily  wager has worked.   This system will obviate litigations and  pecuniary liability for the Government.  

       Accordingly, we find merit in this appeal.  We set aside  the impugned judgment of the division bench dated 3.9.2000  and we restore the award of the labour court dated 27.10.1999  in I.D. Reference No.59/97.  The name of the appellant will be  restored as a daily wager in the nominal muster roll.

       Accordingly, the appeal is allowed with no order as to  costs.