Bombay High Court
The Exe. Engineer, Mah. Jeevan ... vs Vatsala Wd/O Champat Waghmare, ... on 20 July, 2017
Bench: I.K. Jain
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 :
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.
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.
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
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
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.
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.
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
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
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.)
