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CASE NO.: Appeal (civil)  3639 of 2006

PETITIONER: Krishna Bhagya Jala Nigam Ltd.

RESPONDENT: Mohammed Rafi

DATE OF JUDGMENT: 24/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP(C) No.  24529/2005)

ARIJIT PASAYAT, J

       Leave granted.   

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Karnataka High Court, Bangalore allowing  the writ appeal filed by the respondent (hereinafter  referred to as  the ’workman’)  and restoring the Award made by the Labour  Court.   

       Background facts in a nutshell are as follows:

The workman had been working as a daily wage employee  with the Krishna Bhagya Jala Nigam Limited (for short the ’Jala  Nigam’)  which, at the relevant point of time was executing the  Upper Krishna Project in the State of Karnataka. His services were  allegedly terminated which gave rise to an industrial dispute.  According to the claim made by the workman he served the Jala  Nigam from 29.10.1989 to 1.4.1996. He further claimed that his  services were terminated without complying with the provisions of  Section 25-F of the Industrial Disputes Act 1947 (for short the  Act). A reference under Section 10(1) (c) of the Act was made to the  Labour Court, Gulbarga.  Several other employees had also  challenged the termination of their services and other references  had been made to the Labour Court and some of the employees  had also filed applications before it under sub-section (4-A) of  Section 10 of the Act. The reference made at the instance of the  workman  was contested by the Jala Nigam and on a  consideration of the oral and documentary evidence led by the  parties, the Labour Court recorded a finding that the services of  the workman  had been terminated without complying with the  provisions of Section 25-F of the Act and therefore the termination  was illegal. Accordingly the termination was set aside and the Jala  Nigam was  directed to reinstate the workman with full back  wages and continuity of service.  This award came to be  challenged by the Jala Nigam in W.P. No.40822/1999. This writ  petition was heard along with the writ petitions filed in the case of  other workmen as well and all the writ petition were disposed of by  the learned single Judge by a common order. In the case of other  workmen there was considerable delay in raising the industrial  dispute and therefore the learned single Judge non-suited them on  that ground. In the case of the workman  the Labour Court  observed that there had been no delay but the provisions of

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Section 25-F of the Act had not been complied with and therefore  the termination was wrongful. The learned single Judge set aside  the award of the Labour Court holding that there was no evidence  before it indicating that the workman had ever been in the service  of the Jala Nigam.  According to the learned single Judge, the  workman had not discharged the initial onus of proving that he  had worked for more than 240 days with the Jala Nigam and  therefore the award directing his reinstatement was illegal. The  writ petition was allowed and the award of the Labour Court set  aside. It is against this order of the learned single Judge that a  writ appeal was filed before the Division Bench. By the impugned  judgment, the writ appeal was allowed.           Learned counsel for the appellant submitted that the basic  approach of the High Court is erroneous.  It proceeded on the  basis as if the period of employment/engagement of a workman  has to be established by the employer.  There is no appearance on  behalf of the workman.

       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 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

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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.  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

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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 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 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 (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 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

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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."

The above position was again re-iterated in ONGC Ltd. and  Anr. v. Shyamal Chandra Bhowmik (2006 (1) SCC 337) and Chief  Engineer, Ranjit Sagar Dam and Anr. v. Sham Lal (2006 AIR SCW  3574).

Above being the position, impugned order of the High Court  cannot be maintained and is set aside.

Appeal is allowed.  No order as to costs.