New Delhi Municipal Council vs Narender
2006 Latest Caselaw 2311 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 24th May, 2003, passed by the Labour Court IV, Delhi whereby the petitioner was directed to reinstate the respondent with full back wages and continuity of service.

2. Briefly, the facts are that the respondent was working as a daily wager/muster roll employee with the petitioner. He claimed that his services were terminated on 20th October, 1988 without following the procedure under Section 25F of the Industrial Disputes Act (in short 'the Act'). He raised an industrial dispute which was referred to the Labour Court in following terms:

Whether the termination of the service of Shri Narender is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

3. In the statement of claim filed before the Labour Court, the respondent took the stand that he was a monthly rated employee. His monthly salary Rs. 561.50. He was appointed as a gardner on 20.7.1986 and was posted at different places. His services were suddenly terminated on 20.10.1988 without holding an enquiry. He also submitted that he had worked with the petitioner with effect from 1.1.85 up to 20.10.88 without any break in service. The management, in response, stated that the workman was not a monthly rated employee but was a daily wager. He had worked for total period of 552 days between 10.7.1985 to 23.8..88. His services were taken as and when required. He had not completed 240 days in any year at stretch. He was engaged only in accordance with need of the project and when the project was over, his services were also over in terms of Section 2(oo)(bb) of the Act.

4. The Labour Court observed as under:

I have given my considerable thought to the arguments of the parties. In view of that workman had admittedly worked for more than 500 days, it was for the management to prove that there was break in service. Moreover, management has failed to follow the principle of 25(G) and (N) and had not complied with Rule 77 of Industrial Disputes(Central) Rules 1957 and not displayed the seniority list of the workman and had not followed the principle of "last come first go" Under the circumstances, retrenchment of the workman which is without following the conditions under Section 25F is illegal and unjustified. This issue is accordingly decided in favor of the workman and against the management.

5. The award has been challenged by the petitioner on the ground of perversity, being contrary to law. It is submitted that the onus to prove that the workman had worked for 240 days during preceding 12 months was on the workman and not on the management. The Labour Court exceeded its jurisdiction by holding that Rule 77 of the I.D. Act (Central Rules), 1957 was not complied with. The grant of full back wages was also without any reason and discussion and without any evidence that the workman had not been employed during the entire period. The argument of the workman is that the management failed to prove complete muster rolles to show that workman had not worked for 240 days or that he was gainfully employed. The Labour Court rightly awarded full back wages.

6. It is now settled law that the burden of proving that the workman had worked for 240 days is on the workman. Mere affidavit of the workman or mere self-serving statement of the workman is not sufficient to discharge this burden. In State of MP v. Arjun Lal Razzak 2006(2) SCC 711; Sundernagar Panchayat and Anr. v. Jethabhai Pitamberbhai 2006(1) LLJ 268; Yeuati R.N. v. Assistant Executive Engineer 2006(1) LLJ 442; and Bhatala Co-operative Sugar Mills Ltd. v. Sowaran Singh 206(1) LLJ 12, the Supreme Court categorically held that the onus to prove lies on the workman that he completed 240 days of work in preceding 12 months. The reason given by the Labour Court is contrary to the law laid down by the Supreme Court.

7. It is true that the management has stated that the respondent had in all worked for 552 days in a span 38 months. No presumption can be derived from this fact that the workman had worked for 240 days during preceding 12 months. If we take an average working of the workman, it comes to 14.56 days in a month. Thus, in an year, he had worked for about 174 days. He had not worked for 240 days. Neither the onus was on the management to prove that the workman had worked for 240 days in a year.

8. In similar circumstances, In Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr. 2004(8) SCC 161, Municipal Corporation, Faridabad v. Siri Niaws JT 2004(7) SC 248 and M.P. Electricity Board v. Hariram JT 2004(8) SC 246, the Supreme Court has laid down the principle that the burden to prove lies with workman to show that he worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and the workman has to adduce some more evidence apart from examining himself to prove the factum of his being in the employment of employer for 240 days. In the present case, the workman had failed to prove that he had worked with the management for 240 days. The Tribunal could not have observed that the workman worked for about 240 days. The number of working days during preceding year has to be 240 days or more days and not about 240 days for application of Section 25F of Industrial Disputes Act. The Tribunal wrongly came to conclusion that if the workman had worked for about 240 days, he can deemed to have been retrenched. The provisions of Section 25(F) of ID Act would not be applicable in case of workman who had not completed 240 days of work during preceding 12 months.

9. The observation of the Labour Court that the management had not complied with Section 25G of the Act and had not complied with Rule 77 of the Act, is also not based on any fact, nor the Labour Court was referred a dispute about non compliance of Rule 77 of the Industrial Disputes (Central Rules), 1957. In State of Bikaner and Jaipur v. O.P. Sharma 2006 (5) SCC 123, the Supreme Court as under:

The Industrial Court, it is well settled, derives its jurisdiction from the reference. (See Mukand Ltd. v. Mukand Staff & Officers' Assn. (2004) 10 SCC 460). The reference made to CGIT specifically refers to only one question i.e."Whether any illegality was committed by the management in giving appointment to one Vijay Kumar in place of the respondent in violation of Section 25-H of the ID Act, 1947?" Non-maintenance of any register in terms of Rule 77 of the ID Rules was, thus, not in issue. Before the Industrial Court, the parties adduced evidence. An attempt was made by the respondent herein to show that one Vijay Singh was appointed, although the name of one Vijay Kumar appeared in the reference. An attempt was also made by the respondent to show that Vijay Kumar and Vijay Singh are one and the same person. In fact, one voucher was produced which was allegedly issued in the name of one Vijay Sharma. The said contentions of the respondent were denied and disputed by the appellant herein. (para 8)

In the instant case, the Award of the Labour Court suffers from an illegality, which appears on the face of the record. The jurisdiction of the Labour Court emanated from the order of the reference. It could not have passed an order going beyond the terms of the reference. While passing the Award,. if the Labour Court exceeds its jurisdiction, the Award must be held to be suffering from a jurisdictional error. It was capable of being corrected by the High Court in exercise of its power of judicial review. The High Court, therefore, clearly fell in error in refusing to exercise its jurisdiction. The Award and the judgment of the High Court, therefore, cannot be sustained. Consequently, the appeal is allowed and the judgment of the High Court is set aside. The award is set aside to the extent of order of reinstatement with back wages. The writ petition filed by the appellant in the High Court is, thus, allowed. (para 14)

10. The award of full back wages by the Labour Court to the respondent is without any basis. The Labour Court has not at all discussed as to why the respondent was entitled for full back wages. It is now settled law that grant of full back wages is not the automatic result of reinstatement and the court should grant appropriate back wages after considering the entire facts and circumstances. If there is no evidence produced by the workman that he was not gainfully employed, neither it is taken in pleading, the court cannot grant full back wages. In Municipal Council Sujan Pur v. Surinder Kumar 2006(5) Scale 505, the Supreme Court observed that burden of proved lied on the workman to prove that he was not gainfully employed after termination of services. There is no presumption that every workman whose service is terminated remains unemployed. This is also contrary to normal human behavior. In State of MP v. Arjun Lal Razzak 2006(2) SCC 711, the Supreme Court observed that the burden of prove was on the workman to show that he had not been gainfully employed after termination of his services.

11. I consider that the award of the Tribunal is perverse, contrary to law and is liable to be set aside. The same is hereby set aside. The writ petition is allowed. No orders as to costs.