wp.5143.08.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5143 OF 2008
The Executive Engineer,
Maharashtra Jeevan Pradhikaran
(earlier known as Maharashtra Water Sewerage
& Environmental Engineering Board),
Division Wardha. .... Petitioner
-- Versus -
Vatsala wd/o Champat Waghmare,
R/o Behind Dnyaneshwar Mandir,
Gajanan Nagar, Wardha,
(Legal heir of deceased
Champat Bajirao Waghmare) .... Respondent
Shri D.M. Kakani, Advocate for the Petitioner.
Shri S.A. Kalbande, Advocate for the Respondent.
CORAM : KUM. INDIRA JAIN, J.
DATE : JULY 20, 2017. ORAL JUDGMENT :-
This petition takes an exception to the award dated 01/12/2007 passed on 02/04/2008 by Labour Court, Wardha in I.D.A. Reference Case No.9/1995.
02] The facts giving rise to the petition may be stated in nutshell as under :
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i. The husband of respondent Champat Waghmare was in service of petitioner. His services were orally terminated on 20/09/1992. It was the case of Champat that he was entrusted with duty of 'Chowkidar' and used to work for 8 to 16 hours a day continuously since 01/07/1986. According to him, he completed more than 240 days in a year still his services were not regularized and without complying with the mandatory provisions, employer terminated his services. The dispute was referred to the Labour Court, Wardha for adjudication.
ii. Before Labour Court, husband of respondent filed statement of claims. The employer resisted the same by filing written statement. According to employer, Champat Waghmare was appointed as labourer on daily wages and his services were utilized in case of availability of emergency work. It was submitted that employee had never worked for 240 days in a year and the documents would indicate that he never completed 240 days continuous service in a year. ::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 00:41:40 ::: wp.5143.08.jud 3 Submission is that in such a situation, there was no question of regularization in service and there was no need to comply with the provisions of Section 25F of the Industrial Disputes Act. Regarding the other employees, it is contended that they had completed 240 days of contentious service and, therefore, though junior to Champat Waghmare, their services were regularized. It is submitted that Champat was not entitled to regularization and for want of availability of work, his services were no more required.
iii. Considering the rival contentions of the parties, Labour Court framed issues at Exh.13. Parties examined the witnesses. Upon appreciation of evidence of parties and hearing submissions made on their behalf, Labour Court answered the reference partly in the affirmative and directed the employer to pay back wages at the rate of Rs.32/- per day from 20/09/1992 till 27/05/2001. It is this order which is the subject matter of challenge in the present petition.
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03] Heard Shri D.M. Kakani, learned Counsel for petitioner and Shri S.A. Kalbande, learned Counsel for respondent. Learned Counsel for petitioner submitted that complainant could not establish that he was a regular employee and completed 240 days continuous service in any of the years. It is submitted that burden of proof that employee had completed 240 days continuous service in a year was on the employee, but Labour Court wrongly placed burden on the employer. According to the learned Counsel, vouchers were produced by the employer and those vouchers clearly indicated that employee had not continuously worked and he was not in regular employment. Regarding muster-roll, submission is that as per the rules, after stipulated period, muster was to be destroyed and employer was not in a position to produce muster before the Court. Non- production of muster was for justifiable reason, but the same has not been considered by the Courts below. Referring to the cross- examination of widow of employee, learned Counsel submits that she admitted that her husband was not appointed by selection process and he was working as per the availability of the work. On the basis of the admissions elicited in cross-examination of widow of employee and documents placed on record, submission ::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 00:41:40 ::: wp.5143.08.jud 5 on behalf of employer is that adverse inference was wrongly drawn and the award passed basically on adverse inference needs to be set aside.
04] On the other hand, learned Counsel for respondent submits that notice to produce documents was given by employee to employer and despite notice, documents were not timely furnished. Learned Counsel submits that employee has stated that he worked continuously for more than 240 days in a year and the evidence of widow of employee had remained unchallenged. It is submitted that in written statement, employer has admitted in unequivocal terms that employee was paid Rs.32/- per day daily wage. According to the learned Counsel, employer has not adduced any evidence to show a justifiable cause for not producing muster-roll and in the absence of reasonable explanation, Labour Court has rightly drawn adverse inference against the employer. Grievance is made that even after six years continuous service, services of employee were not regularized and without complying with the mandatory provisions, his services were terminated. Learned Counsel submits that no perversity or illegality has been pointed out by ::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 00:41:40 ::: wp.5143.08.jud 6 petitioner in the impugned judgment and prays to dismiss the petition.
05] It is not in dispute that deceased Champat Waghmare was in service of petitioner. The moot question is whether he completed 240 days continuous service in a year or his services were utilized on availability of work in case of emergency. In this connection, evidence of respondent-Vatsalabai and evidence of witnesses examined by employer needs to be looked into. It is stated by Vatsalabai that her husband-Champat Waghmare died on 28/05/2001. She stated that he was in the employment of Party No.1 as a 'Chowkidar' from 01/07/1986 till 20/09/1992. The evidence of Vatsalabai also indicates that services of Champat Waghmare came to be terminated on 20/09/1992 and he worked continuously for more than 240 days in a year. In cross- examination, she admits that her husband worked as per availability of work. She states that her husband worked for six years. The suggestion put to her in cross-examination that her husband never completed 240 days service in each year came to be denied by the witness.
::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 00:41:40 ::: wp.5143.08.jud 7 06] In the light of evidence of Vatsalabai, it was incumbent on employer to produce the documents as required by employee in pursuance to notice to produce documents. The submission made for the first time before this Court that muster- roll was required to be disposed of within a statutory period, was never raised before the Labour Court. Not only this, the witnesses examined by employer do not state about any justifiable cause for not producing the muster-roll before the Court. For non-production of muster-roll, learned Counsel for petitioner relied upon Municipal Corporation, Faridabad vs. Siri Niwas - [2004 SCC (L&S) 1062] and Manager R.B.I. Bangalore vs. S. Mani and others - [2005 (105) FLOR 1067] and submitted that non-production of muster roll for justifiable reason would not be considered as intentional non-production and in such a case, adverse inference under Section 114(g) of the Indian Evidence Act cannot be drawn. On going through the judgment of the Hon'ble Supreme Court relied upon by the learned Counsel for petitioner, it can be seen that non-production if found to be justifiable on some reasonable grounds and supported by some evidence, then Tribunal exercising its discretion is not to draw an adverse inference against an employer.
::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 00:41:40 ::: wp.5143.08.jud 8 07] In the present case, there is no whisper in the evidence of the witnesses examined by the employer for non- production of muster-roll and other documents except vouchers required by employee as per the notice to produce documents. In such an eventuality, Labour Court exercised its discretion in a proper way and held that adverse inference needs to be drawn against the employer.
08] Another contention on behalf of the petitioner is that Labour Court has calculated back wages at the rate of Rs.32/- per day and the calculations is not based on any material or evidence on record. It can be seen from the statement of claims submitted by employee and paragraph 5 of reply by employer that employer-petitioner did not deny rate of Rs.32/- per day daily wages. In view of unequivocal admission in the written statement, Labour Court held that employee-respondent is entitled to the back wages at the rate of Rs.32/- per day. No fault can be found with the same.
09] It is undisputed that one month's notice or in lieu of notice, pay or retrenchment compensation as required under ::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 00:41:40 ::: wp.5143.08.jud 9 Section 25F of the Industrial Disputes Act was not given to the employee. Labour Court has also held the employer responsible for breach of Section 25G of the Industrial Disputes Act as an employer has not adhered to the principle of last come first go. The findings recorded are based on the evidence of witnesses of employer and admissions brought in their cross-examinations. 10] In this view of the matter and since no perversity or illegality is found in the award passed by Labour Court, this Court is not inclined to interfere in writ jurisdiction. Hence, the following order:
ORDER I. Writ Petition No.5143/2008 stands dismissed. II. Rule is discharged.
III. No costs.
(Kum. Indira Jain, J.) At this stage, learned Counsel for respondent seeks permission to withdraw amount of Rs.50,000/- deposited by ::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 00:41:40 ::: wp.5143.08.jud 10 petitioner with the Registry of this Court in pursuance to the order dated 04/12/2008. Learned Counsel submits that the amount is deposited on 17/01/2009 and the same is lying in a fixed deposit.
Learned Counsel for petitioner has no objection. Respondent is permitted to withdraw Rs.50,000/- lying in fixed deposit along with accrued interest thereon.
*sdw (Kum. Indira Jain, J.)
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