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CASE NO.: Appeal (civil)  6383 of 2005

PETITIONER: Surendranagar Distt. Panchayat & Anr.            

RESPONDENT: Gangaben Laljibhai & Ors.                                

DATE OF JUDGMENT: 03/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Appellants challenge correctness of the judgment  rendered by a Division Bench of the Gujarat High Court  dismissing the Letters Patent Appeal filed by the appellants.  By the impugned judgment the Division Bench upheld the  decision of learned Single Judge.

       Background facts in a nutshell are as follows :

       State of Gujarat had made a reference to the Labour  Court, Surendra Nagar under Section 10 of the Industrial  Disputes Act, 1947 (in short the ’Act’)basically on the question  whether the alleged termination of the services of the  respondents was valid. Claim of the respondents was that they  had worked for various period beyond 240 days in each of the  years right from the beginning and therefore, the discharge  from service of the respondents by oral intimation was not  valid. Appellants refuted the stand by stating that the nature  of the work was purely on daily wages basis depending upon  both on work and funds.  They specifically pleaded that none  of the respondents had completed 240 days in any of the years  right from the beginning.  As work was not available they were  orally asked not to come for work, and there was thus no  retrenchment or termination.

There was no appearance on behalf of respondent in spite  of notice.

       The labour court noted that the details pertaining to  attendance of the respondent have been produced, and zerox  copies of the salary register and muster roll have also  produced.  The labour court came to hold that the workman’s  plea in each case that he had worked for various periods for  more than 240 days in a year was established and there was  non-compliance of the provisions of Section 25-F of the  Industrial Disputes Act, 1947 (in short the ’Act’) and as such  termination was illegal.  They were awarded back wages.  The  writ petitions filed were dismissed and so was the Letters  Patent Appeal as indicated above.  

It is to be noted that the Labour Court and the High  Court proceeded on the basis as if the burden of proving that  the concerned employee has not worked for 240 days in the  preceding year immediate to the date of termination lies on the

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employer.   

       The view expressed by the High Court is clearly  untenable.  

       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 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

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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

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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."  

       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 (8) SCC 25) 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 appellant’s case 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 a recent judgment in R.M. Yellatti v. The Asst.  Executive Engineer (2006 (1) SCC 106), 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

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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."

       The above position was again reiterated in a recent  judgment in ONGC Ltd. and Another v. Shyamal Chandra  Bhowmik (2006 (1) SCC 337).  

It was held in all these cases that the burden of proof lies  on the workman to show that he had worked continuously for  240 days for the preceding one year and it is for the workman  to adduce evidence apart from examining himself to prove the  factum of being in employment of the employer.

       In the instant case the labour court and the High Court  also lost sight of the fact that the zerox copies of the  appellant’s attendance and salary registers were produced.   The respondents have not adduced any evidence except  making oral statement that they had worked for more than  240 days.   

       Above being the position the Award of the Labour Court  and impugned judgment of the learned Single Judge as  affirmed by the Division Bench are set aside.   

The appeal is allowed.  There shall be no order as to  costs. In case any of the respondents has been reinstatement  pursuant to the order of the Labour Court/High Court, salary  and other emoluments paid to him shall not be recovered.