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CASE NO.: Appeal (civil)  2240 of 2001

PETITIONER: M.P. Electricity Board

RESPONDENT: Hariram

DATE OF JUDGMENT: 27/09/2004

BENCH: N.Santosh Hegde & S.B.Sinha

JUDGMENT: J U D G M E N T

(With CA Nos. 2241/2001, 2242/2001 & 2243/2001)

SANTOSH HEGDE, J.

The appellant-M.P. Electricity Board in these appeals  question the correctness of the judgment of the High Court of  Judicature at Jabalpur whereby the High Court dismissed its writ  petitions challenging the order of the Industrial Court, Bhopal  Bench which in turn had directed to re-instate the respondents  herein with 50% back wages. Facts necessary for the disposal of these appeals are as  follows: The respondents herein were engaged by the appellant-  Board on daily wages for the purpose of digging pits for erecting  electric poles. It is the case of the appellant that on completion of  the said project of drawing electric lines from point to point, the  employment of the respondents was terminated and whenever a  similar occasion arose for digging pits they were re-employed on  daily wages. Hence their employment was not permanent in nature  nor in any one of the cases the respondents had completed 240  days of continuous work in any given year. The said project jobs  have come to an end in 1991 and respondents were never re- employed by the Board. Being aggrieved by the said non-employment, the   respondents herein filed applications under Section 31 read with  Section 61 of the M.P.Industrial Relations Act (M.P.Act) in  January, 1993 before the Labour Court, Bhopal seeking permanent  employment under the Board, primarily on the ground that they  have completed 240 working days in a year and their  discontinuation of service amounted to retrenchment without  following the legal requirements. The appellant-Board denied the allegations made in the said  application which had termed the non-employment as  retrenchment of their service by contending that the question of  retrenchment does not arise in the nature of employment because  the service of the respondents were on work requirement basis.  Before the Labour Court, an application was made by the  respondents to produce the Muster Rolls for the period 1987 to  1992. That apart no other material was produced by the  respondents to establish a fact that they had worked for 240 days  continuously in any given year. Though some other applicants  examined themselves before the Labour Court no other document  was produced. While the appellant-Board examined three  witnesses who are Engineers-In-Charge of the Project and  produced the Muster Rolls for the period between 1986 to 1990 but

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did not produce the Muster Rolls for the later period. The Labour  Court after examining the entries in the Muster Rolls came to the  conclusion that the respondents-applicants had not worked for 240  days continuously in any given year, hence, they cannot claim  permanency nor could they term their non-employment as a  retrenchment. On the said basis, it rejected the applications of the  respondents. Being aggrieved by the said rejection of their application,  the respondents preferred an appeal before the Industrial Court at  Bhopal Bench. The Industrial Court noticing the fact that though  the application for production of the Muster Rolls was for the years  1987 to 1992, the appellant had only produced the Muster Rolls for   the year ending 1990. Therefore, an adverse inference against the  appellant was drawn and solely based on the said adverse inference   it accepted the case of the respondents that they had worked for  240 days continuously in a given year, hence, proceeded to grant   relief, as stated herein above. A challenge to the said orders of the appellant  were  dismissed by the High Court after drawing  an adverse inference  based  on the same grounds of non-production of all the Muster  Rolls. However, while considering the case of grant of back wages  both the Industrial Court as well as the High Court came to the  conclusion that the respondents had not worked continuously at  any given point of time and were not engaged on all working days  and their employment was punctuated by short periods when they  had not been engaged. Hence, it confined the back wages to 50%  only and with the above modification reinstatement of the  respondents was ordered.         In these appeals, learned counsel appearing on behalf of the  appellant-Board contended that the courts below could not have  drawn any adverse inference against the Board for not having  produced the Muster Rolls for the year 1990-1992 when it  complied with the request of the respondent by producing the  Muster Rolls for the year 1988-90. It is submitted that the said  Muster Rolls which were produced before the court clearly  indicated that the respondents had not worked continuously for 240  days in a year, at any point of time between 1988-90. It is argued  that it is not the case of the respondents that between the year  1990-92 for which period the Muster Rolls were not produced they  had worked for 240 days continuously only in those years. Their  entire case was that between 1988 and 1992 they have been  working in 240 days continuously in a year which having not been  established atleast for the years 1988 and 1990 without there being  a specific allegation that between 1990 and 1992 there was such  continuous employment a mere non-production of the Muster Rolls  for the said year could not have been made the basis of drawing an  adverse inference by the courts below. It is also argued that the  non-employment of a daily wager when there is no work would not  amount to retrenchment. Learned counsel also submitted that the  nature of work that was being done by the appellant was a work for  a project and that project having come to an end, question of  regularising the services of the respondents or making them  permanent did not arise. Shri S.K.Gambhir, learned senior counsel appearing for the  respondents per contra argued the very fact that the appellants  though were in possession of the Muster Rolls between 1988 to  1992 did not produce the same inspite of being summoned must  give rise to assumption that those documents if produced would  prove the case of the respondents, hence, the Industrial Court as  well as the High Court justly drew an adverse inference against the  appellant. He submitted that these workmen being poor and  illiterate people will not have any material in their possession to  prove their continuous employment, hence, the burden of proving  their continuity of their employment could not be thrust on them.

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He submitted that even otherwise in law the impugned orders did  not call for any interference. Having heard the learned counsel for the parties and having  perused the documents, we notice that the case of the appellant that  these respondents were employed for the purpose of digging pits  for erecting electric poles in the course of drawing electric wire  from one point to another point is not disputed. It is an accepted  finding of the courts below that the employment of the respondents  have been discontinuous and intermittent during the period from  1982 till their employment was discontinued. We can take judicial  notice of the fact that drawing of an electric line is in the nature of  project work and once the polls are erected and the electric wire is  drawn from the starting pole to the ending pole that work comes to  an end. Therefore, it cannot be contended that the nature of work   which was only to dig pits for the purpose of erecting poles could  be construed as a permanent job. Of course, during the course of  electrifying more places, job of this nature may be done by the  Board continuously in different parts of the State but that does not  deviate from the fact that drawing of electric line from one point to  another at one part of the State would be a project and not a  continuous job. Therefore, employment of people in that local area  for the limited job cannot be construed as an employment for a  continuous and regular work of the Board. This fact is also  recorded in the Muster Rolls which shows that at regular intervals  the services of the respondents were sought obviously for the  reason that there was no continuous need for such work. A perusal  of the Muster Rolls, a  copy of which is produced along with the  writ appeal which pertains to the respondents in the first appeal  clearly indicates the above fact. If as an example, we take the case  of the respondent in C.A.No.2240/01 we notice that he worked  between 16.11.1987 to 15.12.1987  for 30 days. His next  employment was from 16.12.1987 to 15.1.1988 for 26 days.  Therefore, it could be said that during the period 16.11.1987 to  15.1.1988 this respondent worked continuously for 56 days. He  was then not employed between 15.1.1988 till 16.2.1988. After the  said break he was re-employed from 16.2.1988 to 15.9.1988 which  is for a period of 106 days. Thereafter, he was not employed till  16.11.1988. From 16.11.1988 he was re-employed till 15.12.1988  for 30 days. Thus it is noticed that the employment during the  period 1987 to 1988 was not continuous and his total employed  days for one year if taken from 16.11.1987 till 16.11.1988, same  comes to 136 days. Similar is the case if we have a look at a  subsequent employment during the years 1989-1990, this clearly  shows the fact that the employment of the respondent was on a job  required basis and was not for any continuous services required by  the Board. The appellant, therefore, cannot claim either  permanency or regularisation since there is no such permanent post  to which he could stake his claim nor could he claim the benefit of  completion of 240 days of continuous work in a given year,  because as stated above the figures do not show that the  respondents whose particulars are referred to herein above or the  other respondents for that matter have worked for 240 days. In  such a factual background, in our opinion, the Industrial Court or  the High Court could not have drawn an adverse inference for the  non-production of the Muster Rolls for the year 1990 to 1992 in  the absence of specific pleading by the respondents-applicants that  atleast during that period they had worked for 240 days  continuously in a given year. The application calling for the  production of the documents was for the years 1987 to 1992. As  stated above, between the period 1987 to 1990, as a matter of fact,  till end of the year 1990 the respondents have not been able to  establish the case of continuous work for 240 days. Considering  these facts in our view drawing of an adverse inference for the  non-production of the Muster Rolls for the years 1991-92, is  wholly erroneous on the part of the Industrial Court and the High

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Court. We cannot but  bear in mind the fact that the initial burden  of establishing the factum of their continuous work  for 240 days in  a year rests with the applicants-respondents. 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 re-instatement  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 vs. 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 in 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."    

If we apply the principles laid down by this Court in the  above stated case of Siri Niwas, it is clear that the Labour Court  not having drawn any adverse inference, on facts and  circumstances of this case the Industrial Court or the High Court  could not have based an order of re-instatement solely on the basis  of an adverse inference. For the reasons stated above, these appeals succeed. The  impugned orders of the High Court as well as the Industrial Court  are set aside and that of the Labour Court is restored. These appeals are allowed.