06 September 2004
Supreme Court
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MUNICIPAL CORPORATION, FARIDABAD Vs SIRI NIWAS

Bench: N. SANTOSH HEGDE,S.B. SINHA
Case number: C.A. No.-001851-001851 / 2002
Diary number: 13811 / 2001
Advocates: Vs DEBASIS MISRA


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CASE NO.: Appeal (civil)  1851 of 2002

PETITIONER: Municipal Corporation, Faridabad                                 

RESPONDENT: Siri Niwas                                                               

DATE OF JUDGMENT: 06/09/2004

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

JUDGMENT: J U D G M E N T With C.A. No. 4563 of 2002

S.B. SINHA, J:

Both these appeals involving similar questions of fact and law  were  taken up for hearing together and are being disposed of by this common  judgment.

The factual matrix of the matter, however,  is being noticed from Civil  Appeal No.1851 of 2002.

       The Appellant is in appeal before us being aggrieved by and  dissatisfied with the judgment and order dated 3.5.2001 passed by the  learned Single Judge of the Punjab and Haryana High Court in CWP No.624  of 2000 whereby and whereunder the writ petition filed by the respondent  herein, questioning an Award dated 13.8.1999 passed by the Industrial  Tribunal, Faridabad, was allowed.

       The basic fact of the matter is not much in dispute.  The respondent  herein allegedly worked with the Appellant herein from 5.8.1994 to  31.12.1994 as Tubewell Operator. He allegedly further worked from  1.1.1995 to 16.5.1995 at Sector 37, Old Zone II.  His services were  terminated on or about 17.5.1995 whereupon an industrial dispute was  raised.   

The Government of Haryana made a reference before the Presiding  Officer, Industrial Tribunal-cum-Labour Court I,  vide Haryana Government  Endst. No.32410-15 dated 7.10.1995, in exercise of the power conferred by  Clause (c) of Sub-Section (1) of Section 10 of the Industrial Disputes Act,  1947 in the following terms:

"Whether there is justification in the termination of  the services of Sh. Shri Niwas and if not, to what  relief he is entitled to."

       The case of the  respondent before the Tribunal was that as he had  completed working for 240 days in a year, the purported order of the  retrenchment is illegal as conditions precedent therefor as contained in  Section 25F of the Industrial Disputes Act, 1947 were not  complied with.   The contention of the Appellant herein, on the other hand, was that the said  respondent had worked only for 136 days during the preceding twelve  months on daily wages and had no lien over the said job.

       The Tribunal upon considering all the materials placed on records by  the parties to the dispute came to the conclusion that the total number of  working days of the workman was 184 days and, thus, he  having not  completed 240 days of working in a year  was not entitled to any relief.  The

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learned Tribunal noticed that neither the Management nor the workman  cared to produce the muster rolls with effect from August, 1994 which was  their joint liability.  It was further observed that the workman even did not  summon the same although  the Management had not produced the muster  rolls.

The respondent being aggrieved by and dissatisfied with the said  Award filed a writ petition before the Punjab and Haryana High Court which  was marked at CWP No.624 of 2000.  Before the High Court the respondent  produced certain documents which do not appear to have been  taken on  records.   The High Court  opined :

"\005Be that as it may, respondent in their written  statement has accepted the fact that the petitioner  was kept on 1.1.1995 and he worked upto  16.9.1995.  This span of working period as  mentioned by the respondent is of course more  than 240 days.  The question is whether the  petitioner has actually worked for this period or  not."

       The High Court, however, was of the view that as the Appellant  herein did not produce the relevant documents before the Industrial Tribunal,  an adverse inference should be drawn against it, as it was in possession of  the best evidence and, thus,  it was not necessary for the first respondent  herein to call upon the Appellant to do so.  The High Court furthermore was  of the view  that the burden of proof may not be upon the Appellant but in  case of non-production of the documents, an adverse inference could be  drawn against him.  Only on that basis the writ petition was allowed holding  that it could be presumed that the respondent had worked for 240 days.   Consequently the respondent was directed to be reinstated in service with  75% back wages from the date of demand.

       Mr. Praveen Kumar Rai, the learned counsel appearing on behalf of  the Appellant, would submit that the High Court committed a serious error  of law insofar as it allowed the writ petition filed by the  respondent herein  only on the basis of an adverse inference drawn by it by non-production of  the muster rolls.  

Mr. D. K. Thakur, learned counsel appeared on behalf of the  respondent, on the other hand, would  support the judgment of the High  Court.

       The provisions of the Indian Evidence Act per se are not applicable in  an industrial adjudication.  The general principles of it are, however  applicable.  It is also imperative for the Industrial Tribunal to see that the  principles of natural justice are complied with.  The burden of proof was on  the respondent herein to show that he had worked for 240 days  in preceding  twelve months prior to his alleged retrenchment.  In terms of Section 25-F of  the Industrial Disputes Act, 1947, an order retrenching a workman would not  be effective unless the conditions precedent therefor are satisfied.  Section  25-F postulates the following conditions to be fulfilled by employer for  effecting a valid retrenchment :

(i)     one month’s notice in writing indicating the reasons  for retrenchment or wages in lieu thereof;

(ii)    payment of compensation equivalent to fifteen days,  average pay for every completed year of continuous  service or any part thereof in excess of six months.

       For the said purpose it is necessary to notice the definition of  ’Continuous Service’ as contained in Section 25-B of the Act.  In terms of

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sub-Section (2) of Section 25-B 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.  By reason of the  said provision, thus, a legal fiction is created. The retrenchment of the  respondent  took place on 17.5.1995.  For the purpose of calculating as to  whether he had worked for a period of 240 days within one year or not,  it  was, therefore, necessary for the Tribunal to arrive at a finding of fact that  during the period between 5.8.1994 to 16.5.1995 he had worked for a period  of more than 240 days.  As noticed hereinbefore, the burden of proof was on  the workman.  From the Award it does not appear that the workman adduced  any  evidence whatsoever in support of his contention that he complied with  the requirements of Section 25B of the Industrial Disputes Act.  Apart from  examining himself in support of his contention he did not produce or  call  for any document from the office of the Appellant herein including the  muster rolls. It is improbable that a person working in a Local Authority  would not be in possession of any documentary evidence to support his  claim before the Tribunal. Apart from muster rolls he could have shown the  terms and conditions of his offer of appointment and the remuneration  received by him for working during the aforementioned period.  He even did  not examine any other witness in support of his case.

       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.

No reason has been assigned by the High Court as to why the exercise  of discretional jurisdiction of the Tribunal was bad in law.  In a case of this  nature, it is trite, the High Court exercising the power of  judicial review,  would not interfere with the discretion of a Tribunal unless the same is found  to be illegal or irrational.  

In Mahant Shri Srinivas Ramanuj Das vs Surajanarayan Das and  Another   [AIR 1967 SC 256] this court held :

"28.\005The Mahant has not come in the witness box.  All  the documents have not been produced.  In fact it is the  plaintiff alone who produced a number of documents but  he had picked and chosen from among the documents in  his possession.  Some documents which could have  thrown some light on the question under determination  have not been produced.  It is true that the defendant- respondent also did not call upon the plaintiff-appellant  to produce the documents whose existence was admitted  by one or the other witness of the plaintiff and that,  therefore, strictly speaking, no inference  adverse to the  plaintiff can be drawn from his non-producing the list of  documents.  The Court may not be in a position to  conclude from such omission that those documents  would have directly established the case for the  respondent.  But it can take into consideration in  weighing the evidence or any direct inferences from  established facts that the documents might have favoured  the respondent’s case."

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       Yet again in Smt. Indira Nehru Gandhi vs Shri Raj Narain (AIR  1975 SC 2299),   law has been laid down by this Court in the following  terms :

"The third and the last and a subsidiary submission on  behalf of the election petitioner, on election expenses was  that Shri Dal Bahadur Singh not having been produced  by the original respondent, some sort of presumption  arises against the original respondent.  I do not think that  it is possible to shift a burden of the petitioner on to the  original respondent whose case never was that Shri Dal  Bahadur Singh spent any money on her behalf.  The case  of M. Chyenna Reddy vs Ramchandra Rao, (1972) 40  Ele LR 390 at p. 415 (SC) was relied upon to submit that  a presumption may arise against a successful candidate  from the non-production of available evidence to support  his version.  Such a presumption, under Section 114  Evidence Act, it has to be remembered, is always  optional and one of fact, depending upon the whole set of  facts.  It is not obligatory."

       Further more a party in order to get benefit of the provisions contained  in Section 114(f) of the Indian Evidence Act must place some evidence in  support of his case.  Here the Respondent failed to do so.

       The High Court in support of its judgment has relied upon the  decision of this Court in Gopal Krishnaji Ketkar vs Mohamed Haji Latif  and Others   [AIR 1968 SC 1413], wherein as regards the income from a  Dargah the Court amongst other evidence took into consideration the fact  that the Appellant in his evidence admitted that he had been enjoying the  income of plot in question but did not produce any account to substantiate  his contention.  Despite admitting that "he had got record of the Dargah  Income and that account was kept separately" the Appellant therein had not  produced either on his own account or the account of the Dargah as to how  the income from the said plot was dealt with.  This Court in Gopal Krishnaji  case (supra) did not lay down any law that in all situations the presumption  in terms of Section 114(f) of the Indian Evidence Act must be drawn.    The said decision, thus, has no application in the fact of the present case.

       Curiously the respondent produced  copies of some muster rolls  before this court. If he was in possession of the said documents, it betrays   one’s imagination as to why the same had not been produced before the  Tribunal. As indicated hereinbefore, he filed some documents before the  High Court but the same were not  accepted.  The High  Court, therefore,  proceeded to pass the impugned judgment only on the basis of the materials  relied on by the parties before the Tribunal.  The High Court, in our opinion,  committed a manifest error in setting aside the award of the Tribunal only on  the basis of adverse inference drawn against the Appellant for not producing  the muster rolls.   

For the foregoing reasons the impugned judgments are not sustainable  in law and they are set aside accordingly. These appeals are allowed.  In the facts and circumstances of this  case, there shall be no order as to costs.