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CASE NO.: Appeal (civil)  4468 of 2005

PETITIONER: Ranip Nagar Palika

RESPONDENT: Babuji Gabhaji Thakore and Ors

DATE OF JUDGMENT: 23/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      In the present appeal challenge is to the order passed by  a Division Bench of the Gujarat High Court dismissing the  Letters Patent Appeal filed by the appellant. In the Letters  Patent Appeal challenge was to the order passed by a learned  Single Judge who had dismissed the writ petition filed by the  appellant.  

2.      A brief reference to the factual aspects would suffice.

3.      Claim was made by the respondents to the effect that  their services were terminated without following the procedure  prescribed under Section 25-F of the Industrial Disputes Act,  1947 (in short the \021Act\022). It was their case that they were  employed on regular basis and, therefore, the termination of  service is illegal. In the claim petition they had averred that  they were working since 1991 and had worked continuously  till there was termination of service by an oral order on  16.5.1994. Appellant took the stand that the respondents were  engaged as daily rated helpers. Their appointments were not in  terms of the recruitment rules and workers were called for  rendering services as and when required. It was therefore said  that the claim regarding continuance of service was mis- conceived. The respondents only worked for a few days.  In  fact after November, 1993 there was no engagement made as  their services were not required. The Labour Court,  Ahmedabad by order dated 9.7.1999 directed re-instatement  with continuity of service and 50% back wages. The order was  assailed before the High Court. It was contended that the  respondents were working as daily wagers and they had not  rendered regular service. A learned Single judge of the High  Court dismissed the writ petition holding that each of the  respondents had completed 240 days of service and, therefore,  the order of the Labour Court was justified. As noted above,  writ appeal was dismissed.  

4.      Learned counsel for the appellant submitted that there  was no pleading that the respondents had completed 240 days  of service.  In fact their claim in the claim petition was that  they had rendered continuous service without indicating any  particulars. In any event, there was no finding recorded by the  Labour Court that they had completed 240 days of service.  Learned Single Judge therefore was not justified in holding  that the Labour Court had concluded that the concerned

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workmen had completed 240 days of service. It was further  submitted that all relevant records were produced before the  Labour Court which were lightly brushed aside and  conclusions were arrived at on conjectures by holding that the  claim of the present respondents was to be accepted.        5.      It was further submitted that the onus is on the person  who claims to have rendered more than 240 days of service to  establish it. The Labour Court and the High Court erroneously  held that it was for the employer to establish that the  claimants-workmen had not completed 240 days of service       6.      Learned counsel for the respondents on the other hand  submitted that after analyzing the factual position in detail the  Labour Court and the High Court have arrived at the correct  conclusion.        7.      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:

\0232.  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

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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.\024           8.      The said decision was followed in Essen Deinki v. Rajiv  Kumar (2002 (8) SCC 400).  9.      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:

    \023It 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.\024               10.     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: \023The 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

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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."  

11.     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\022s view that the burden was on the  employer was held to be erroneous. In Batala Cooperative  Sugar Mills Ltd. v. Sowaran Singh (2005 (8) SCC 25) it was  held as follows:   

\023So 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.\024  

12.     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.   

13.     In R.M. Yellatti v. The Asst. Executive Engineer (2006 (1)  SCC 106), the decisions referred to above were noted and it  was held as follows:   

\023Analyzing 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

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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.\024

14.     The above position was again reiterated in ONGC Ltd.  and Another v. Shyamal Chandra Bhowmik (2006 (1) SCC  337) and Surendranagar Distt. Panchayat v. Gangaben  Laljibhai and Ors. (2006 (9) SCC 132).  

15.     It was held in all these cases that the burden of proof lies  on the workman to show that he had worked continuously for  240 days for the preceding one year and it is for the workman  to adduce evidence apart from examining himself to prove the  factum of being in employment of the employer.       16.     It is to be noted that the appellant had produced  materials to show that the claim of the respondents that they  had worked from 1991 was patently wrong.  In fact, finding  has been recorded that one of the respondents had worked  since January, 1994 contrary to the claim of having worked  from 1991. In view of the fact that the Labour Court and the  High Court have not considered the matter in the proper  perspective and the view expressed is contrary to the decision  in several decisions referred to above, the orders of the Labour  Court and the High Court cannot be sustained.        17.     There was need for factual adjudication on the basis of  the materials adduced by the parties. That apparently has  not  been done. We therefore set aside the orders of the Labour  Court, learned Single Judge and Division Bench of the High  Court and remit the matter to the Labour Court to consider  the matter afresh. It has to specifically record a finding as to  whether the claim of the workmen of continuance of service is  acceptable. It has also to be decided as to whether the  workmen had completed 240 days of service. That decision is  vital to see whether Section 25-F of the Act has any relevance.        18.     The appeal is allowed with no order as to costs.