REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7463 OF 2009 (Arising out of SLP(C) No. 14117 of 2008)

Director, Fisheries Terminal Division                              ……….Appellant

Versus

Bhikubhai Meghajibhai Chavda                                         …….Respondent

JUDGMENT  

H.L. Dattu,J.  

       Leave granted.

2) This is an appeal against the judgment and order of the Gujarat High  

Court  in  S.C.A.  No.  29355  of  2007  dated  30.11.2007.  By  the  

impugned judgment, the court has affirmed the award passed by the  

labour court, Junagadh, in Reference Case No. 192 of 1995 dated 14th  

May, 2007, wherein and whereunder the labour court has directed the  

employer to reinstate the workman into service with 20% back wages.  

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3) The  facts  in  brief  are  :  The  Fisheries  Terminal  Department;  

(`F.T.D.’ for short), the appellant herein, had come into existence  

sometime  in  the  year  1976.   The  activities  of  F.T.D.  inter  alia  

consisted of providing landing facilities for catching fish in a clean  

and hygienic condition and for that purpose, services of daily wage  

workmen were utilized as and when it  was needed.   While this  

practice was going on,  the State  Government by its  order dated  

17.10.1988, directed all the departments of the State Government  

to discontinue the practice of engaging the services of daily wage  

workmen and in lieu of it to hire labourers on contractual basis.  

4) The claim of the workman before the labour court was that he was  

employed by the appellant on 1.12.1985 as watchman and he was  

paid daily wages and his presence was also marked in the muster  

roll.  It  was  further  stated,  that,  his  services  were  terminated  

without giving notice and without complying with the provisions  

of Industrial Disputes Act.  The stand of the appellant before the  

labour court was that, the workman was employed on daily wage  

basis in the year 1986 and the workman had worked till 1988 and  

in all these years, the workman had worked for 93 days, 145 days  

and  31  days  respectively,  and  thereby  the  workman  had  not  

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worked for more than 240 days in any preceding year. It was also  

there plea, that, the appellant is a seasonal industry and, therefore,  

provisions under  Section 25F of  Industrial  Disputes  Act  is  not  

attracted.  

5) The labour  court  on consideration  of  the  oral  and documentary  

evidence,  has  concluded that  the  appellant  is  an  industry,  since  

there is no evidence to show that the appropriate government had  

declared  the  appellant  as  a  seasonal  industry  or  the  work  is  

performed intermittently. It has also observed, that, the appellant  

has  not  produced  any  documentary  evidence  to  show  that  the  

workman had not completed 240 days in the preceding year and  

was  not  in  service  till  1991  and,  therefore,  adverse  inference  

requires to be drawn that the workman has completed continuous  

service  of  240  days  and,  accordingly,  has  concluded  that  the  

appellant-employer could not have retrenched the services of the  

workman  without  complying  with  the  provisions  of  Industrial  

Disputes Act. In view of the aforesaid finding and the conclusion  

reached, the labour court had directed the appellant to reinstate the  

respondent  with  20%  back  wages  for  the  period  when  the  

respondent was kept out of service.  

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6) The  award  passed  by  the  labour  court  was  challenged  by  the  

appellant before the High Court. The High Court has endorsed the  

award passed by the labour court,  on the ground that the labour  

court has rightly come to the conclusion that the appellant has not  

established by leading cogent evidence that the appellant is not a  

seasonal industry.  It is also observed, that, once it  has come in  

evidence that the workman has completed 240 days of service in  

the  preceding  year,  then  the  initial  burden  is  shifted  on  the  

employer to rebut the oral evidence of the workman by producing  

relevant  oral  and documentary evidence  and since the  appellant  

failed to produce the same before the labour court, it was justified  

in concluding that the workman had completed continuous service  

of  240  days  during  the  preceding  year  and  accordingly  had  

dismissed the writ petition filed by the appellant.  

7) Being aggrieved by the judgment and order passed by the High  

Court, the appellant is before us in this appeal.  

8) The learned counsel for the appellant submitted, that, the appellant  

industry is seasonal in nature and, the respondent was employed on  

a  purely  temporary  basis  and,  therefore,  the  onus  lies  on  the  

respondent/workman to prove that he had in fact worked for 240  

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days in the preceding year.  It is further submitted that the claim of  

the  workman  was  time  barred  and,  therefore,  the  labour  court  

ought  not  to  have entertained the claim made by the  workman,  

since the workman had approached the labour court nearly after  

eight years from the date he was supposed to have been terminated  

from service by the employer.  

9) Per contra, the learned counsel for the respondent submitted that  

the workman immediately after his services were terminated by the  

employer, had approached the conciliation officer and on failure of  

the conciliation proceedings, had approached the State government  

to make reference of the dispute for adjudication before the labour  

court  and,  therefore,  it  cannot  be  said  that  the  workman  had  

approached the labour court after a long lapse of time.  It is further  

submitted,  that,  the  workman in  his  evidence,  categorically  had  

made  statement  before  the  labour  court  that  he had worked for  

more than 240 days in a preceding year and, since that evidence is  

not rebutted by the employer by producing the relevant oral and  

documentary  evidence  which  would  be  in  their  possession,  the  

labour court was justified in drawing adverse inference against the  

employer. It was further submitted, that, since the appellant failed  

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to prove before the labour court by producing necessary evidence  

that the appellant industry is seasonal in nature, the labour court  

has  not  committed  any  error  whatsoever,  to  accept  the  oral  

assertion  made  by  the  appellant  before  the  labour  court.   It  is  

further submitted, since the findings of the labour court cannot be  

said as perverse findings or based on no evidence, the High Court  

was justified in declining to interfere with the findings of fact by  

the  labour  court  in  a  petition  filed  under  Article  227  of  the  

Constitution of India.  

10) From the facts as set out herein above and the submissions made  

by the learned counsel for the parties, the question that requires to  

be  decided  whether  the  labour  court  and  the  High  Court  was  

justified in allowing the claim of the workman.  It is not the case of  

the appellant that it is not an industry as defined under Section 2(J)  

of the Act, but it was its specific stand before the labour court and  

also the High Court that it is only a seasonal industry and employ  

workman like the respondent only during fishing season and are  

relieved at the end of the season and, therefore, the labour court  

and the  High Court  were  not  justified  in  not  only directing  the  

reinstatement  of  workman into  service  but  also  the  payment  of  

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back wages.  This submission of the learned counsel  in the appeal  

requires to be answered with reference to Section 25A of Industrial  

Disputes Act.  The Section is as under:   

“25A.  Application  of  sections  25C  to  25E.-(1)  Sections 25C to 25E inclusive [shall not apply to  industrial  establishments  to  which  Chapter  VB  applies,  or--]  (a)  to  industrial  establishments  in  which less than fifty workmen on an average per  working day have been employed in the preceding  calendar month; or (b) to industrial establishments  which are of a seasonal character or in which work  is performed only intermittently. (2)  If  a  question  arises  whether  an  industrial  establishment is of a seasonal character or whether  work is performed therein only intermittently, the  decision  of  the  appropriate  Government  thereon  shall be final.”

11) It  is  now well  settled  by  several  judgments  of  this  court,  that,  

where a workman is employed for a seasonal work or temporary  

period, the workman cannot be said to be retrenched in view of  

Section 2(00)(bb).  It is relevant to take note of what is stated by  

this court in the case of  Morinda Co-operative Sugar Mills Ltd. vs.  

Ram Kishan (1995) 5 SCC 653, it was stated by this court :

“….that  since  the  work  done  by  the  respondents  is  only a seasonal work, the respondents cannot be said  to have been retrenched in view of what is stated in  sub clause (bb) of Section 2(00) of the Act.”

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12) In  the  normal  course,  it  is  the  decision  of  the  appropriate  

Government  which  is  final  in  determination  whether  the  said  

industry is seasonal in nature. As has been observed by the labour  

court and the High Court, there has been nothing brought on record  

by  the  appellants  to  support  their  contention  that  fisheries  is  a  

seasonal industry. There has been no order from the Government  

which  has  been  produced  by  the  appellants  to  state  that  the  

fisheries industry is seasonal. There has been no mention of any  

decision on the part of the appropriate Government with regard to  

declaring fisheries  as  a  seasonal  industry.  Therefore,  we concur  

with the finding of the labour court wherein they have concluded  

that the appellant cannot be classified as a seasonal industry.

13) The next contention of the learned counsel for the appellant is that  

the respondent had not worked for 240 days during the preceding  

twelve  months  on  daily  wages  and,  therefore,  the  respondent  

cannot  claim  any  protection  under  the  provisions  of  Industrial  

Disputes Act, 1947. The case of the respondent before the labour  

court  was that as he had completed working for more than 240  

days in a year, the purported order of retrenchment is illegal,  as  

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conditions precedent as contained in Section 25F of the Industrial  

Disputes Act, 1947 were not complied with.  

14) Section 25B of the Act  defines “continuous service”. In terms of  

Sub section (2)  of Section 25B that if a workman during a period  

of  twelve calendar  months  preceding  the  date  with  reference to  

which calculation  is  to be made,  has actually worked under the  

employer 240 days within a period of one year, he will be deemed  

to  be  in  continuous  service.   The  respondent  claims  he  was  

employed in the year 1985 as a watchman and his services were  

retrenched in the year 1991 and during the period between 1985 to  

1991, he had worked for a period of more than 240 days.  The  

burden of proof is on the respondent to show that he had worked  

for  240  days  in  preceding  twelve  months  prior  to  his  alleged  

retrenchment.   The  law  on  this  issue  appears  to  be  now  well  

settled.  This  court  in  the  case  of  R.M.  Yellatty  vs.  Assistant  

Executive Engineer [(2006) 1 SCC 106], has  observed :

“However,  applying  general  principles  and  on  reading the aforesaid 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  up  in  the  witness  box.  This  burden  is  discharged  upon  the  workman  adducing  cogent  

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evidence, both oral and documentary. In cases of  termination  of  services  of  daily-waged  earners,  there  will  be  no  letter  of  appointment  of  termination. There will also be no receipt of proof  of payment. Thus in most cases, the workman (the  claimant)  can  only  call  upon  the  employer  to  produce before the Court the nominal muster roll  for the given period, the letter of appointment of  termination,  if  any,  the  wage  register,  the  attendance  register,  etc.  Drawing  of  adverse  inference  ultimately  would  depend  thereafter  on  the facts of each case.”  

15) Applying the principles laid down in the above case by this court,  

the evidence produced by the appellants has not been consistent.  

The  appellants  claim that  the  respondent  did  not  work  for  240  

days. The respondent was a workman hired on a daily wage basis.  

So it is obvious, as this court pointed out in the above case that he  

would  have  difficulty  in  having  access  to  all  the  official  

documents, muster rolls etc. in connection with his service. He has  

come forward and deposed, so in our opinion the burden of proof  

shifts to the employer/appellants to prove that he did not complete  

240 days of service in the requisite period to constitute continuous  

service. It is the contention of the appellant that the services of the  

respondent were terminated in 1988. The witness produced by the  

appellant stated that the respondent stopped coming to work from  

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February,  1988.  The  documentary  evidence  produced  by  the  

appellant  is  contradictory  to  this  fact  as  it  shows  that  the  

respondent was working during February,  1989 also. It  has also  

been observed by the High Court that the muster roll for 1986-87  

was  not  completely  produced.  The  appellants  have  inexplicably  

failed to produce the complete records and muster rolls from 1985  

to  1991,  inspite  of  the  direction  issued  by  the  labour  court  to  

produce the same. In fact there has been practically no challenge to  

the deposition of the respondent during cross-examination. In this  

regard, it would be pertinent to mention the observation of three  

judge bench of this  court  in the case of Municipal  Corporation,  

Faridabad  Vs.  Siri  Niwas  [(2004)  8  SCC  195],  where  it  is  

observed:   

“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  this  contentions.   The  matter, however, would be different where despite  direction by a court the evidence is withheld.”

16) It  is  not in dispute that the respondent’s service was terminated  

without complying with the provisions of Section 25F of Industrial  

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Disputes Act.  Section 25G of the Act provides for the procedure  

for retrenchment. The section reads-

“25G.  Procedure  for  retrenchment.-  Where  any  workman in an industrial establishment, who is a  citizen of India, is to be retrenched and he belongs  to  a  particular  category  of  workmen  in  that  establishment,  in  the  absence  of  any  agreement  between  the  employer  and  the  workman  in  this  behalf,  the employer shall  ordinarily retrench the  workman who was the last person to be employed  in that category, unless for reasons to be recorded  the employer retrenches any other workman.”

The labour court based on the pleadings and evidence on record  

has  come  to  the  conclusion  that  the  services  of  some  of  the  

employees  junior  to  the  respondent  was  continued  after  the  

respondent was discharged from its duties. The dates of joining of  

some of the fellow employees of the respondent like Mohanbhai,  

Kalubhai and Nanjibhai were not produced by the appellants. The  

appellants have clearly failed to prove that the services of no junior  

employee was continued when the services of the respondent was  

terminated. Thus, the procedure laid down in Section 25G has also  

not been followed. The findings on facts by the labour cannot be  

termed as perverse and need no interference.

17) It is also the case of the appellants that there is unexplained delay  

in  approaching  the  labour  court  in  adjudicating  the  imaginary  

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grievance by the respondent-workman.  In our view, there is no  

merit  in  this  contention.  The  workman  had  approached  the  

Conciliation  Officer  for  resolving  the  dispute  between  the  

employer and the employee and it is only when the conciliation  

proceedings failed that the matter was referred to the labour court  

for final adjudication.  

18) In view of the above discussion, we do not see any good ground to  

interfere with the impugned order.  Accordingly, appeal requires to  

be dismissed and it is dismissed. No order as to costs.

                                                                                     …………………………………J.                                                                                        [ TARUN CHATTERJEE ]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ]

New Delhi, November 09, 2009.

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