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CASE NO.: Appeal (civil)  3253 of 2005

PETITIONER: Chief Engineer, Ranjit Sagar Dam & Anr.          

RESPONDENT: Sham Lal                                                                 

DATE OF JUDGMENT: 03/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

                        Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Punjab and Haryana High Court  dismissing the writ petition filed by the appellants.  By the  impugned order learned Single Judge upheld the order passed  by the Presiding Officer, Labour Court, Gurdaspur who held  that the burden lies on the employer to prove that the  workman had not worked for 240 days or more in the year  immediately preceding the termination. The alleged date of  termination is 13.11.1990. According to the respondent, he  joined in November, 1989 whereas according to the appellant  he joined in August, 1999.  Demand for making the reference  was made on 15.12.1999 i.e. after a long period of about 9  years. The workman was held to be entitled to full back wages  from the date of demand notice i.e. from 25.2.1993 till his  actual reinstatement as the termination of the services of the  workmen with effect from 13.11.1990 was held to be illegal.

       In support of the appeal learned counsel for the  appellants submitted that the High Court has clearly lost sight  of the fact that the claim was highly belated. No finding was  even recorded by the Labour Court on this plea which was  specifically raised. Further the labour court had wrongly held  that it was for the employer to prove that the concerned  workman had not worked for 240 days or more in the year  immediately preceding the date of termination.

       There is no appearance on behalf of the respondent.

       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.

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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).           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.

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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 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

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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 also 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 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:   

"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

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labour court unless they are perverse.  This  exercise will depend upon facts of each case."

       The above position was again reiterated in a recent  judgment in ONGC Ltd. and Another v. Shyamal Chandra  Bhowmik (2006 (1) SCC 337).  

So far as delay in seeking the reference is concerned, no  formula of universal application can be laid down. It would  depend on facts of each individual case.                    However, certain observations made by this Court need  to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty  and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as  follows:     

"6.     Law does not prescribe any time-limit for  the appropriate Government to exercise its  powers under Section 10 of the Act. It is not  that this power can be exercised at any point  of time and to revive matters which had since  been settled. Power is to be exercised  reasonably and in a rational manner. There  appears to us to be no rational basis on which  the Central Government has exercised powers  in this case after a lapse of about seven years  of the order dismissing the respondent from  service. At the time reference was made no  industrial dispute existed or could be even said  to have been apprehended. A dispute which is  stale could not be the subject-matter of  reference under Section 10 of the Act. As to  when a dispute can be said to be stale would  depend on the facts and circumstances of each  case. When the matter has become final, it  appears to us to be rather incongruous that  the reference be made under Section 10 of the  Act in the circumstances like the present one.  In fact it could be said that there was no  dispute pending at the time when the reference  in question was made. The only ground  advanced by the respondent was that two  other employees who were dismissed from  service were reinstated. Under what  circumstances they were dismissed and  subsequently reinstated is nowhere  mentioned. Demand raised by the respondent  for raising an industrial dispute was ex-facie  bad and incompetent."

       In S.M. Nilajkar and Ors. v. Telecom District Manager,  Karnataka (2003 (4) SCC 27) the position was reiterated as  follows: (at para 17)

"17.     It was submitted on behalf of the  respondent that on account of delay in raising  the dispute by the appellants the High Court  was justified in denying relief to the  appellants. We cannot agree. It is true, as held  in M/s. Shalimar Works Ltd. v. Their Workmen  (supra) (AIR 1959 SC 1217), that merely  because the Industrial Disputes Act does not  provide for a limitation for raising the dispute  it does not mean that the dispute can be  raised at any time and without regard to the

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delay and reasons therefor. There is no  limitation prescribed for reference of disputes  to an industrial tribunal, even so it is only  reasonable that the disputes should be  referred as soon as possible after they have  arisen and after conciliation proceedings have  failed particularly so when disputes relate to  discharge of workmen wholesale. A delay of 4  years in raising the dispute after even  reemployment of the most of the old workmen  was held to be fatal in M/s. Shalimar Works  Limited v. Their Workmen (supra) (AIR 1959  SC 1217), In Nedungadi Bank Ltd. v. K.P.  Madhavankutty and others (supra) AIR 2000  SC 839, a delay of 7 years was held to be fatal  and disentitled to workmen to any relief. In  Ratan Chandra Sammanta and others v.  Union of India and others (supra) (1993 AIR  SCW 2214, it was held that a casual labourer  retrenched by the employer deprives himself of  remedy available in law by delay itself, lapse of  time results in losing the remedy and the right  as well. The delay would certainly be fatal if it  has resulted in material evidence relevant to  adjudication being lost and rendered not  available. However, we do not think that the  delay in the case at hand has been so culpable  as to disentitle the appellants for any relief.  Although the High Court has opined that there  was a delay of 7 to 9 years in raising the  dispute before the Tribunal but we find the  High Court factually not correct. The  employment of the appellants was terminated  sometime in 1985-86 or 1986-87. Pursuant to  the judgment in Daily Rated Casual Employees  Under P&T Department v. Union of India  (supra) (AIR 1987 SC 2342), the department  was formulating a scheme to accommodate  casual labourers and the appellants were  justified in awaiting the outcome thereof. On  16-1-1990 they were refused to be  accommodated in the scheme. On 28-12-1990  they initiated the proceedings under the  Industrial Disputes Act followed by conciliation  proceedings and then the dispute was referred  to the Industrial Tribunal cum-Labour Court.  We do not think that the appellants deserve to  be non suited on the ground of delay."  

       The above position was highlighted recently in Employers  in relation to the Management of Sudamdih Colliery of M/s  Bharat Coking Coal Ltd. v. Their Workmen represented by  Rashtriya Colliery Mazdoor Sangh (2006 (1) Supreme 282).

       Above being the position, impugned judgment of the High  Court is indefensible and is set aside.   The appeal is allowed without any order as to costs. In  case the respondent has been reinstated pursuant to the order  of the Labour Court or the High Court, salary and other  emoluments paid to him shall not be recovered.