Ram Pyare vs Industrial Tribunal And Ors.
2007 Latest Caselaw 2415 Del

JUDGMENT

Hima Kohli, J.

1. The present petition is directed against the award dated 23.8.2002 passed by the Industrial Tribunal (hereinafter referred to as 'the Tribunal') whereunder it was held that the petitioner workman had been properly appointed on regular basis w.e.f. 1.6.1982 and was not entitled to regularization from any date prior to the said date.

2. The facts of the case are that an industrial dispute raised by the petitioner workman regarding his regularization was referred to the Tribunal by the appropriate Government in the following terms of reference:

Whether the workman Sh. Rampyare is entitled to be appointed as Beldar on regular basis and if so, from which date and what directions are necessary in this respect'

3. The petitioner workman filed his statement of claim claiming therein that the respondent management be directed to appoint him on regular basis with retrospective effect from 7.10.1977 with full back wages and continuity of service. The workman alleged that he had been working with the respondent management on muster roll basis since the year 1969 and that he was selected through an interview on regular basis for the post of Beldar on 7.10.1977 in the regular pay scale of Rs. 196-240/-. He further alleged that despite his selection in the interview, he was not appointed on regular basis even after several requests and representations and a large number of his juniors had been regularized as Beldars prior to him i.e. w.e.f. 12.7.1977.

4. Refuting the averments of the petitioner workman, the respondent management filed its written statement, wherein it took a stand that the petitioner workman had in fact never appeared in the interview held on 7.10.1977, and as such none of the workmen who had appeared in the said interview had been selected. It was stated that only a list of those candidates was drawn who had appeared in the interviews on 29.4.1977 and 17.5.1977 and on the said basis, 104 workmen were appointed by the Selection Committee as per the recruitment rules. Both the parties led their respective evidence. In view of the evidence adduced, the Tribunal by way of the impugned award held that the petitioner workman had failed to establish that he had attended the interview as called for and thus he could not claim regularization from the date of his initial appointment or w.e.f. 7.10.1977.

5. Counsel for the petitioner workman submitted that the impugned award deserves to be set aside for the reason that it is contrary to law and the facts on record. It was vehemently argued that the Tribunal failed to appreciate that instead of holding that the petitioner workman had failed to prove that he had appeared in the interview dated 7.10.1977, the Tribunal ought to have drawn an adverse inference against the respondent management for non-production of the evidence in its possession, i.e. the office record of the said interview. Reliance in this regard was placed on the judgment of the Supreme Court in the case of Smt. Niranjan Kaur v. New Delhi Hotels Ltd. and Ors. . Emphasis was placed on the fact that despite the petitioner workman having filed an application dated 8.1.1982 seeking production of certain documents by the respondent management including the aforesaid records of the interview, the same were not produced by it on the ground that the said documents were untraceable, being very old.

6. In support of his contention that the petitioner workman had been in continuous service of the respondent management w.e.f. the year 1969, and in any case was entitled to be regularized w.e.f. 7.10.1977, having appeared in the interview on the said date, learned Counsel for the petitioner workman relied on the following judgments of the Supreme Court:

i. Jeet Singh and Ors. v. M.C.D. and Ors.

ii. The Workman of Bhurkunda Colliery of Central Coalfields Ltd. v. The Management of Bhurkunda Colliery of Central Coalfields Ltd.

7. It was contended that the respondent management did not also produce the official records of the other three workmen, namely Mamchand, Chetram and Lokeshwar, who the petitioner workman had alleged as being junior to him, but regularized prior to him. Reference was made to the cross-examination of the management witness, MW-1, wherein he had stated that he could not bring the records of the said workmen because their father's names and other particulars had not been furnished by the petitioner/workman.

8. Per contra, learned Counsel for the respondent management stated that there was no illegality, infirmity or perversity in the impugned award, as it was based on a correct appreciation of facts and law. At the very outset, it was submitted that as the petitioner workman was on leave on 7.10.1977, the question of his having attended the interview on 7.10.1977 did not arise at all and in this context, the attention of the Court was drawn to the cross- examination of the petitioner workman dated 23.9.1998, wherein he had admitted that he was on medical leave during the period from 5.10.1977 to 8.10.1977, but added that in spite of the same, he nevertheless attended the interview on 7.10.1977. It was also argued that even assuming that the petitioner workman did appear in the interview on the aforesaid date, still since no one was regularized on the basis of the said interview, no vested right was created in favor of the petitioner workman to claim regularization from 7.10.1977.

9. As regards the non-production of documents before the Tribunal, it was stated that the relevant and exact records were not available, since the same pertained to very old matter and that the policy of the respondent management is to weed out old records from time to time under which the records asked for by the petitioner workman may also have been weeded out. Reliance was placed on a Circular of the respondent management which provides for weeding out of old records.

10. Referring to a Circular dated 21.12.1981 which provided for calling in persons listed up to Sr. No. 300, who had put in more than 599 days till December, 1979 for regular appointment as Beldar, it was stated that in the said list, the name of the petitioner workman appeared as Sr. No. 324 with his period of attendance shown only as 572 days in the year 1981, and this list has not been challenged by the petitioner workman. It was thus submitted that the contention of the petitioner workman that he was eligible but was not regularized in the year 1977, is untenable for the reason that the list clearly shows that he was neither appointed, nor interviewed nor selected, so he could not claim regularization retrospectively w.e.f. 7.10.1977.

11. Countering the argument of the petitioner workman that three workmen junior to him were illegally regularized out of turn prior to him, it was submitted that neither had he provided any particulars of the three workmen who he alleged were regularized prior to him, nor had he sought for summoning of the relevant records pertaining to them. Also, it was urged that the names of the three workmen were mentioned for the first time only at the time of adducing evidence, while only a general averment had been made to the said effect in the statement of claim, and thus any evidence that is beyond the pleadings ought not to be considered by the Court.

12. In his rejoinder counsel for the petitioner workman submitted that records were required to be maintained by the respondent, even as per its Circular pertaining to weeding out of old records, the same relating to a pending case before the Court.

13. I have heard the counsels for the parties and have also perused the documents placed on record including the impugned award. The basis for the Tribunal in giving its findings against the petitioner workman was that he had failed to establish in the very first instance that he had appeared in the interview held on 7.10.1977. It is on the strength of his contention that he had appeared in the said interview that the petitioner workman claims to be entitled to regularization from the said date. There is no quarrel with the proposition of law that the initial onus of proof lies on the one who alleges a fact. In the present case, the petitioner workman has not placed anything on the record, far from placing anything relevant and satisfactory to prove that he had appeared in the said interview. On the contrary, the respondent management had stated on record that the petitioner workman was on medical leave w.e.f. 5.10.1977 to 8.10.1977, the period during which the interview was held, which fact was confirmed by the petitioner workman in his statement before the Tribunal. Thus a mere bald averment by the petitioner workman that he had appeared in the interview despite being on medical leave on the said date was rightly not considered enough to prove his stand. In any case, fact remains that none of the candidates was regularized on the basis of the interview held on 7.10.1977, thus repelling any probability or possibility of bias or discrimination meted out against the petitioner workman.

14. The argument of the counsel for the petitioner that since the respondent failed to produce the records pertaining the interview dated 7.10.1977, therefore an adverse inference ought to be drawn against it is devoid of merits. Reliance placed by the counsel for the petitioner workman on the Circular that provides for weeding out of old records is misplaced as the said Circular stipulates record retention as three years with respect to confirmation file orders. The plea of the counsel for the petitioner that as the statement of claim is dated 6.8.1981, the period of three years had not expired in respect of the records pertaining to the interview held on 7.10.1977, is misconceived for the reason that the respondent would have been served only thereafter and by the time the written statement was filed by the respondent management on 23.10.1981, the period of three years had expired. Secondly, the petitioner workman having himself failed to discharge the initial onus placed on him, it is not permissible for him to seek to shift the burden of proof on to the respondent management and blame it for non-production of records. The judgment in the case of Niranjan Kaur (supra) is not applicable in the facts of the case since the records do not reflect any willful withholding of evidence by the respondent management in the present case.

15. It is relevant to note that vide orders dated 2.5.2005 and 14.2.2006, the respondent management was directed to produce the records relating to the interview held on 7.10.1977, which were produced on 27.7.2006 and directed to be placed on record by way of an affidavit which was so filed on 27.9.2006. Though, the records pertaining to the interview held on 7.10.1977, were stated to be unavailable, the respondent management filed on record a Circular dated 21.12.1981, in which the name of the petitioner workman figured at Sl. No. 324 and showed attendance of 572 days. From the said document, it was apparent that even in the year 1982, the petitioner workman was ineligible for regularization having not completed 599 days at the relevant time. Yet, his name was considered for regular appointment as Beldar and his services were regularized w.e.f. 1.6.1982. The justification and explanation offered in the affidavit by the respondent management is reasonable and liable to be accepted.

16. It is apparent from a perusal of the records that the petitioner workman had summoned only the office records regarding the interview held on 7.10.1977 and the vigilance report in that regard from the respondent management vide its application dated 8.1.1992. The names of the three workmen who the petitioner workman claims to be junior to him but regularized prior to him were mentioned for the first time in his evidence and he had stated in his cross examination that he had no proof of the fact as alleged by him that the said Shri. Mam Chand and Sri Chet Ram had put in 15 days and 5 days of service respectively and were junior him. A reading of the impugned award and the cross- examination of the management witness, MW-1 shows that though time was granted to him to produce the service records of the said workmen, but the same were not produced as the details of the said workmen were not supplied by the petitioner workman, to the respondent management. The impugned award further records that at no stage was the witness, MW-1 confronted with any person who was junior to the petitioner workman but was regularized before him and he even made a statement during his cross-examination to the effect that no person junior to the petitioner workman had been regularized before him. In this view of the matter, there is no mis-appreciation of facts or any error in the findings arrived at by the Tribunal.

17. Also, it is settled law that it is not appropriate for this Court, while exercising jurisdiction under Article 226 of the Constitution of India, to reappreciate evidence or to interfere with the findings of facts as arrived at by the Labour Court. The jurisdiction exercised by the writ court under Article 226 is supervisory and not appellate in nature. Reappraisal of evidence without sufficient reason in law, to arrive at a finding of fact contrary to those arrived at by the Subordinate Court, is not the intent of exercising the powers of judicial review. Reliance in this regard can be placed on the following judgments of the Supreme Court:

i. Harbans Lal v. Jagmohan Saran

ii. B.C. Chaturvedi v. Union of India

iii. Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union AIR 2000 SC 1508

iv. Municipal Corporation of Delhi v. Asha Ram and Anr. 2005 II AD (DELHI) 285

18. In view of the aforesaid facts and circumstances and the position of law as discussed above, the writ petition is held to be devoid of merits and is rejected, there being no illegality, infirmity or perversity in the impugned award which warrants any interference therewith. The parties are however left to bear their own costs.