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CASE NO.: Appeal (civil)  19 of 2007

PETITIONER: G.M., B.S.N.L. & Ors.

RESPONDENT: Mahesh Chand

DATE OF JUDGMENT: 15/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  19  OF 2007

Dr. ARIJIT PASAYAT, J.

        1.      Challenge in this appeal is to the judgment of a Division  Bench of the Rajasthan High Court, Jaipur Bench, dismissing  the Special Appeal filed under Section 18 of the High Court  Ordinance Act, 1949 (in short the ’High Court Act’).  In the  Special Appeal challenge was to the order passed by a learned  Single Judge in SB Civil Writ Petition No. 3514 of 2005.  The  learned Single Judge had upheld the award made by the  Central Government Industrial Tribunal, Jaipur (in short the  ’Tribunal’).  

Background facts in a nutshell are as follows: Respondent made grievance that his services were  illegally terminated with effect from 13.10.1998. His case was  that he had worked continuously from 1987 till 1998. He  worked for 240 days in a calendar year. Therefore, his services  could not have been terminated without complying with the  requirements of Section 25-F of the Industrial Disputes Act,  1947 (in short the ’Act’).

Appellants took the stand that the respondent was  engaged on a purely temporary basis and was engaged for  doing part time work on some days. The question of his having  worked for more than 240 days is not therefore relevant. He  was actually engaged for 2 to 3 hours a day on some days.  It  was pointed out that there was no such post of Safaiwala ever  created and, therefore, the claim was thoroughly mis- conceived.  

The following reference was made to the Tribunal: "Whether the action of management of  Telecommunication Department in terminating  the services of workman Sh. Mahesh Chand  w.e.f. 13.10.98 was legal and justified? If not,  what relief the workman is entitled and from  what date?"

By its award dated 29.9.2004 the Tribunal came to hold  that the claim of the respondent was that he had worked for  five hours a day and therefore was entitled to be regularized as  a regular Safaiwala.  Accordingly, it was held that termination

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of the respondent from service is illegal and he is entitled to be  re-instated with continuity in service but without back wages.  

Learned Single Judge of the High Court as noted above  dismissed the writ petition filed.  

2.      Learned counsel for the appellants submitted that the  casual and part time nature of the engagement is evident from  the fact that some times the mother and some times the wife  of the respondent was engaged. The Tribunal noted the claim  of the respondent that respondent was being paid Rs.8/- per  day. Even according to his own, the respondent, which has  also not been accepted by the present appellants, was working  for five hours a day.

3.      Learned counsel for the respondent on the other hand  has submitted that he was working for nearly 8 hours every  day and, therefore, the orders of the Tribunal and the High  Court cannot be faulted.  

4.      On the question of whether the respondent had worked  continuously for 240 days in a calendar year the Tribunal and  the High Court have wrongly placed the onus on the employer  to prove the negative. This is clearly contrary to the decision of  this Court.           5.      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.  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

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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).  6.      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."   

7.      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

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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."  

8.      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."  

9.      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.   

10.     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

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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."

(See ONGC Ltd. And Anr. v. Shyamal Chandra Bhowmik  (2006 (1) SCC 337).  11.     Additionally, the specific stand of the appellants in the  proceedings before the Tribunal and the High Court was that  there is no sanctioned post of Safaiwala. There is no finding  recorded by the Tribunal or the High Court that this stand is  incorrect. Further, the respondent is also not consistent as to  the period for which he worked. At one place he said he was  working for five hours each day and other places he had stated  that he was working for 8 hours.  On the contrary, the  appellant with reference to the nature of work done  categorically stated that on a part time basis depending on the  need and requirement the respondent was engaged for 2 to 3  hours periodically. Interestingly, the work that was being done  by the respondent was also being done by his wife and his  mother. Sometimes, no order of appointment was admittedly  issued to the respondent.  This fact is mis-conceived. In view  of the aforesaid factual scenario, the award made by the  Tribunal as affirmed by learned Single Judge and the Division  Bench cannot be sustained and is set aside. The appeal is  allowed with no order as to costs.