State Of U.P. Thru.Exe. Engg. vs Presiding Officer Labour Court ...
2015 Latest Caselaw 47 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 

 
Court No. - 7                                                                       
 

 
Case :- WRIT - C No. - 51158 of 2013
 

 
Petitioner :- State Of U.P. Thru.Exe. Engg.
 
Respondent :- Presiding Officer Labour Court And Anr.
 
Counsel for Petitioner :- Anoop Kr.Srivastava,Acsc
 
Counsel for Respondent :- Mani Shanker Sahu
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri A.K. Upadhyay, leaned Standing Counsel for the petitioner and Sri Mani Shanker Sahu, learned counsel for respondent no. 2.

2. In this writ petition the petitioner has prayed for a writ, order or direction in the nature of certiorari quashing the impugned award dated 05.11.2012 passed by respondent no. 1 in favour of respondent no. 2 workman in Adjudication Case No. 154 of 2002.

Submissions of Parties.

3. Learned counsel for the petitioner submits that the impugned award is wholly arbitrary and illegal and findings recorded therein with regard to 240 days of continuous service as daily wager of the respondent no. 2 is perverse inasmuch as respondent no. 1 while passing the impugned award has not only ignored important evidences but also misread some of the evidences. He passed the impugned award despite the fact that respondent no. 2 raised industrial dispute after 5 years of his alleged termination of service and also not proved that he continuously worked for 240 days are more in any calender year. He submits that the respondent no. 2 was engaged on daily wage basis in the event of need of extra hands. Papers Ext. W-5 and W-6 filed by respondent no. 2 were forged. Specific stand taken in this regard by the petitioner before the respondent no. 1 was completely ignored. He submits that specific averments in this regard have been made in paragraph no. 17 and 19 of the writ petition, which has not been denied by the respondent no. 2 in paragraph 15 of the counter affidavit. Since the impugned award is based on the forged piece of papers and,therefore, the impugned award deserves to be set aside.

4. Learned counsel for respondent no. 2 submits that in the impugned award, the respondent no. 1 has recorded findings of fact that the respondent no. 2 has completed continuous service of 240 days. The finding so recorded is a finding of fact, which cannot be interfered under Article 226 of the Constitution of India. He submits that the petitioner has failed to produce the entire muster roll from April 1996 to June 1998 and, therefore, adverse inference has been rightly drawn by the respondent no. 1 in the impugned award with regard to continuous service of 240 days. In support of his submissions he relied upon a single Judge judgement of Gujrat High Court in the case of State of Gujrat and another vs. Jitendra M. Raval and another [2005 (106) FLR 97].

Discussion and Findings

5. I have carefully considered the submissions of learned counsels for the parties and perused the record of the writ petition.

6. Briefly stated facts of the present case are that the respondent no. 2 was engaged as helper on daily wage basis on 01.04.1996 in the event of need of extra hand. According to the petitioner, the respondent no. 2 was engaged as daily wager between 01.04.1996 to August 1997. According to the respondent no. 2, he continuously worked in the establishment of the petitioner from 01.04.1996 to 30.05.1998 and was disengaged on 1st June 1998 without compliance to the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'). After 5 years of his alleged disengagement w.e.f. 01.06.1998, the respondent no. 2 raised an industrial dispute in the year 2002. Vide order dated 24.10.2002 a reference was made by the Deputy Labour Commissioner, Kanpur Region, Kanpur, to the respondent no. 1 that as to whether the disengagement of the respondent no. 2 was correct and legal and if not to what relief the respondent no. 2 is entitled to and from which date?. The petitioner as well as the respondent no. 2 have led evidences before the respondent no. 1. While respondent no. 2 stated that he worked for more than 240 days w.e.f. 01.04.1996 to 01.06.1998, the petitioner denied it and took the stand that the respondent no. 2 was engaged on daily wage basis between 01.04.1996 to 01.08.1997. Petitioner also took the stand that Paper Nos. W-5 and W-6 filed by the respondent no. 2 are forged and signature of Engineer made on these papers do not tally with the signature available in the records. Specific stand taken by the petitioner has been noted by respondent no. 1 in paragraph no. 9 of the impugned award.

7. In cross-examination, the respondent no. 2 admitted that he was engaged on daily wage basis. Copies of muster-roll up to August 1997 was filed by the petitioner in evidence before the respondent no. 1. An application dated 19.03.2010 was also moved by the respondent no. 2 before the respondent no. 1 for summoning of the records. In reply to this application, it was clearly stated by the petitioner that in compliance of the order of the respondent no. 1, entire records in control and possession of the petitioner have already been filed and no other records are in existence or in the knowledge of the petitioner relating to the respondent no. 2 and as such it is not possible to produce any other record.

8. In the impugned award, the respondent no. 1 has not recorded any finding that the stand so taken by the petitioner is incorrect or the petitioner has in his possession certain records particularly muster-roll relating to the respondent no. 2 for the period August, 1997 till June 1998 and he has not deliberately produced the same. The respondent no. 1 has also not recorded any finding on the specific stand taken by the petitioner with respect to forged nature of papers No. W-5 and W-6.

9.In paragraph no. 17 and 19 of the writ petition, the petitioner has stated as under:-

"17. That the respondent No. 1 has not answered the specific plea raised by the petitioner department that the documents submitted by the respondent-workman were not genuine documents as the signature of Mr. Awadesh Singh available on the documents submitted by the respondent-workman does not tally with his signature available on the documents such as muster roll etc. submitted by the petitioner-department, and therefore the documents submitted and relied upon by the respondent-workman were not genuine documents and were fake and forged documents. It is further submitted that without answering this plea raised by the petitioner-department the respondent no. 1 has recorded a finding that the workman has worked for 240 days in 12 calendar months.

19. That finding arrived at by the learned Labour Court regarding working days of the respondent-workman also suffers from perversity and is against the evidence available on record, inasmuch as there was no evidence on record before the Labour Court to arrive at a finding that respondent-workman has worked for a total period 240 days in 12 calendar months, and for this reason the impugned award dated 05.11.2012 passed by the learned Labour Court is illegal and unsustainable in the eye of law.

10. The afore quoted two paragraphs of the writ petition, have been replied by the respondent no. 2 in paragraph 15 of the counter affidavit as under:-

"That in reply to the contents of paragraph nos. 17, 18, 19, 20 and 21 of the writ petition it is submitted that petitioner is guilty for committing unfair labour practice and has failed to produce the required documents when asked by the court below. The respondent no. 1 after having examined entire facts and evidence on record gave award in favour of respondent no. 2 and there is no infirmity or perversity and the same is liable to be sustained by this Hon'ble Court."

11.From the afore quoted specific averments of paragraphs 17 and 19 of the writ petition and reply thereof in paragraph 15 of the counter affidavit, it is clear that the specific stand taken by the petitioner with regard to Ext. W-5 and W-6 to be forged piece of papers, have neither been denied by the respondent No. 2 nor during the course of adjudication proceeding the respondent no. 1 considered it nor recorded his finding. No material was placed by the respondent no. 2 to demonstrate before the respondent no. 1 that Ext. W-5 and W-6 are genuine documents and it realy bears the signature of the engineer concerned.

12.No other evidence was produced by the respondent no. 2 in support of his claim that he worked for 240 days or more between April 1996 till 1st June 1998. Thus, the respondent no. 2 failed to discharge the initial burden to prove that he continuously worked for 240 days in twelve calender months.

Burden of Proof

13. In the case of R.M.Yellatti Vs. Assistant Executive Engineer, (2006) 1 SCC 106 , Hon'ble Supreme Court held in para 12, 14, 15 and 17 as under :

"12. Now coming to the question of burden of proof as to the completion of 240 days of continuous work in a year, the law is well settled. In the case of Manager, Reserve Bank of India, Bangalore v. S. Mani reported in (2005) 5 SCC 100, the workmen raised a contention of rendering continuous service between April, 1980 to December, 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The tribunal based its decision on the management not producing attendance register. In view of the affidavits filed by the workmen, the tribunal held that the burden on the workmen to prove 240 days service stood discharged. In that matter, a three-judge bench of this court held that pleadings did not constitute a substitute for proof and that the affidavits contained self-serving statements; that no workman took an oath to state that they had worked for 240 days; that no document in support of the said plea was ever produced and, therefore, this court took the view that the workmen had failed to discharge the burden on them of proving that they had worked for 240 days. According to the said judgment, only by reason of non-response to the complaints filed by the workmen, it cannot be said that the workmen had proved that they had worked for 240 days. In that case, the workmen had not called upon the management to produce relevant documents. The court observed that the initial burden of establishing the factum of continuous work for 240 days in a year was on the workmen. In the circumstances, this court set aside the award of the industrial tribunal ordering reinstatement.

14. In the case of Range Forest Officer (supra), the dispute was referred to the labour court as to whether the workman had completed 240 days of service. Vide award dated 10.8.1988, the tribunal held that the services were wrongly terminated without giving retrenchment compensation. In arriving at this conclusion, the tribunal stated that in view of the affidavit of the workman saying that he had worked for 240 days, the burden was on the management to show justification in termination of the service. It is in this light that the division bench of this court took the view that the tribunal was not right in placing the burden on the management without first determining on the basis of cogent evidence that the workman had worked for 240 days in the year preceding his termination. This court held that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination; that filing of an affidavit is only his own statement in his own favour which cannot be recorded as sufficient evidence for any court or tribunal to come to the conclusion that a workmen had worked for 240 days in a year. This court found that there was no proof of receipt of salary or wages for 240 days; that letter of appointment was not produced; that letter of termination was not produced on record and, therefore, award was set aside.

15. In the case of Rajasthan State Ganganagar S. Mills Ltd. (supra), the workman had alleged that he had worked for more than 240 days in the year concerned, which claim was denied by the management. The workman had merely filed an affidavit in support of his case. Therefore, the division bench of this court took the view that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination. This court observed that filing of an affidavit was not enough because the affidavit contained self- serving statement of the workman which cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that the claimant had worked for 240 days in a year. Further, this court found that there was no proof of receipt of salary or wages for 240 days and, therefore, 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. On the facts of that case, the court found that even if the period for which the workman had alleged to have worked was taken into account, as mentioned in his affidavit, still the said workman did not fulfill the requirement of completion of 240 days of service and, therefore, this court set aside the award of the labour court.

17. 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 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."

14. In the case of R.M.Yellatti (supra), Hon'ble Supreme Court followed its earlier judgments in the cases of Manager, Reserve bank of India Vs. S.Mani , (2005) 5 SCC 100, Municipal Corporation, Faridabad Vs. Siriniwas, (2004)8 SCC 195, Rajasthan  State Ganganagar S. Mills Ltd. Vs. State of Rajasthan, (2004) 8 SCC 161, Range Forest Officer Vs. S.T. hadimani, (2002) 3 SCC 25 and Banglore Water Supply and Sewerage Board Vs. A. Rajappa, (1978) 2 SCC 213.

15. In the case of Talwara Co-operative Credit and service Society Vs. Sushil Kumar, (2008) 9 SCC 486 (para 13), Hon'ble Supreme Court held as under:

"13. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the concerned employee was in fact gainfully employed.In Surinder Kumar case (2006)5 SCC 173, this Court held: (SCC p.177, paras 12-14).

12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. [See U.P. State Brassware Corporation & Ors. v. Udit Narain Pandey, JT 2005 (10) SC 344 and State of M.P. v. Arjan Lal Rajak, (2006) 2 SCC 711].

13. Equally well settled is the principle that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. [See Manager, Reserve Bank of India, Bangalore v. S. Mani (2005)5 SCC 100.

14.It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. [See S. Mani (supra)]"

16. There can be no quarrel with the argument of learned counsel for the respondent no.2 that the scope of interference under Article 226 of the Constitution of India against the award is limited and the Court cannot go into the questions of fact decided by the labour court or the Tribunal, which is the final fact finding court. Interference can be made only if a finding of fact is perverse or if the same is not based on legal evidence. In the case of Management of Madurantakam Co-operative Sugar Mills Vs. S. Vishwanathan, (2005) 3 SCC 193, Hon'ble Supreme Court held in para 12 as under :

"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court."

17. In the case of M/s. Hindustan Steels Ltd. Rourkela Vs. A.K. Roy and others, (1969) 3 SCC 513, Hon'ble Supreme Court held in para 16 as under :

"16. On a consideration of all the circumstances, the present case, in our view, was one such case. The Tribunal exercised its discretion mechanically without weighing the circumstances of the case. That was no exercise of discretion -at all. There is ample authority to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order. [See S.A. de Smith, Judicial Review of Administrative Action, (2nd ed.) 324-325]. One such relevant consideration, the disregard of which would render its order amenable to interference, would be the well- settled principles laid down in decisions binding on the tribunal to whom the discretion is entrusted. The refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise, its jurisdiction. Its order, therefore, becomes liable to interference."

18. In the case of Omar Salay Mohd. Sait Vs. Commissioner of Income Tax, Madras, AIR 1959 SC 1238, Hon'ble Supreme Court held in para 42 as under :

"42. We are aware that the Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it this court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were was the reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by this court."

19. In the case of Udhav Das Kewat Ram Vs. CIT 1967 (66) ITR 462, Hon'ble Supreme Court held that Tribunal must consider with due care all material facts and record its findings on all contentions raised before it and the relevant law.

20. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. Highlighting this rule, Hon'ble Supreme Court held in the case of The Secretary & Curator, Victoria Memorial v. Howrah Ganatantrik Nagrik Samity and ors., JT 2010(2)SC 566 para 31 to 33 as under :

"31. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. " [Vide State of Orissa Vs. Dhaniram Luhar (JT 2004(2) SC 172 and State of Rajasthan Vs. Sohan Lal & Ors. JT 2004 (5) SCC 338:2004 (5) SCC 573].

32. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC 258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513; and State of Himachal Pradesh Vs. Sada Ram & Anr. (2009) 4 SCC 422].

33.Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person 23 who is adversely affected may know, as why his application has been rejected.

21. Non recording of reasons, non consideration of admissible evidence or consideration of inadmissible evidence renders the order to be unsustainable. Hon'ble Supreme Court in the case of Chandana Impex Pvt. Ltd. Vs. Commissioner of Customs, New Delhi , 2011(269)E.L.T. 433 (S.C.)(para 8) held as under :

"8. Having bestowed our anxious consideration on the facts at hand, we are of the opinion that there is some merit in the submission of learned counsel for the appellant that while dealing with an appeal under Section 130 of the Act, the High Court should have examined each question formulated in the appeal with reference to the material taken into consideration by the Tribunal in support of its finding thereon and given its reasons for holding that question is not a substantial question of law. It needs to be emphasised that every litigant, who approaches the court for relief is entitled to know the reason for acceptance or rejection of his prayer, particularly when either of the parties to the lis has a right of further appeal. Unless the litigant is made aware of the reasons which weighed with the court in denying him the relief prayed for, the remedy of appeal will not be meaningful. It is that reasoning, which can be subjected to examination at the higher forums. In State of Orissa Vs. Dhaniram Luhar2 this Court, while reiterating that reason is the heart beat of every conclusion and without the same, it becomes lifeless, observed thus :

"8.......Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made;......."

22.Applying the above noted settled principles of law on the facts of the present case, this Court finds that the respondent no. 2 has failed to establish that he had continuously worked for more than 240 days. The findings recorded by the respondent no. 1 in the impugned award with respect to continuous service of 240 days of the respondent no. 2 is not based any valid or legal evidence. Consequently, the impugned award cannot be sustained and, therefore, deserves to be set aside.

23.In the result, the writ petition succeeds and is hereby allowed. The impugned award dated 05.11.2012 passed by respondent no. 1 in adjudication case No. 154 of 2002, is hereby, set aside. However, there shall be no order as to costs.

24.Any amount deposited by the petitioner in compliance of the order of this Court dated 19.09.2013 shall be returned to the petitioner forthwith by the respondent no. 1.

Order Date :- 22.4.2015

v.k.updh.