Delhi High Court
New Delhi Municipal Council vs Subh Narayan Sah & Anr on 22 August, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 6700/2016 & CM. APPL. 27429/2016
NEW DELHI MUNICIPAL COUNCIL ..... Petitioner
Through: Ms. Malvika Trivedi, ASC for
NDMC
versus
SUBH NARAYAN SAH & ANR ..... Respondents
Through: Mr. Rajiv Agarwal, Adv. with
Ms. Megha De. and Ms. Shilpa
Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
22.08.2019
1. This writ petition is directed against award, dated
30th September, 2015, passed by the learned Labour Court, whereby
Respondent No.1 (hereinafter referred to as "the respondent", for the
sake of convenience) was directed to be reinstated with continuity of
service and full back wages.
2. The reference, dated 8th January, 1993, by the appropriate
Government, where from these proceedings emanated, contained the
following single term of reference:
"Whether the services of Sh. Subh Narain Sahu have
been terminated illegally and/or unjustifiably by the
management and if so, to what relief is he entitled and
what directions are necessary in this respect?"
3. According to the Statement of Claim filed by the respondent, he
joined the services of the petitioner, on 15th July, 1990, as a beldar and
was treated, throughout, as a daily wager/casual/muster roll worker, on
wages, as prescribed from time to time under the Minimum Wages
Act, 1948. His counterparts, who were doing identical work, it was
contended, were treated as regular employees with regular pay scales
and other benefits. He alleged that his services had been terminated
with effect from 15th June, 1991, without assigning any reasons and
without issuing any memo or charge sheet to him and without holding
any inquiry. As such, he assailed his termination as being violative of
Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947
(hereinafter referred to as "the ID Act"). He claims to be unemployed
since 15th June, 1991. After serving a demand notice to the petitioner,
which did not meet with any fruitful response, the respondent first
approached the Conciliation Officer and, on finding the conciliation
proceedings abortive, initiated an industrial dispute.
4. The petitioner, in its written statement before the Labour Court,
contended thus:
(i) The petitioner was not an "industry".
(ii) The relationship of employer and employee, between the
petitioner and the respondent, was not disputed; however,
the petitioner asserted that the respondent was employed
with it only for the period from 16th July, 1990 to 14th
June, 1991, "with usual breaks". It was asserted that he
was employed only for casual work and paid wages as
per the rates prescribed by the Delhi Administration from
time to time.
5. In these circumstances, the petitioner contended that the
removal, of the respondent, from its services, with effect from 15th
June, 1991, was not illegal, as the work for which he had been
engaged on casual basis, was completed.
6. The Labour Court framed the following issues, for its
consideration:
"(i) Whether the establishment of the management is
an industry as defined under the ID Act?
(ii) Whether the services of the workman Sh. Subh
Narain Sahu has been terminated illegally and/or
unjustifiably?
(iii) To what relief, is the workman entitled in terms of
reference?"
7. The respondent filed his affidavit-in-evidence and relied upon
nine documents, exhibited as Ex. WW-1/1 to Ex. WW-1/9. The
petitioner did not avail of the opportunity to cross-examine the
respondent and, consequently, the right to cross-examine the
respondent was closed on 20th March, 1996. This order was never
challenged by the petitioner.
8. It was deposed, by the respondent, in his affidavit-in-evidence,
that (i) he had joined the employment of the petitioner on 15 th July,
1990, as beldar, (ii) he was being treated as a daily rated/casual muster
roll worker and was being paid wages as fixed and revised from time
to time under the Minimum Wages Act, 1948, (iii) he had an
unblemished and uninterrupted record of service to his credit, (iv) his
services had been terminated w.e.f. 15th June, 1991, without assigning
any valid reason, (v) the job against which he was working was of
permanent and regular nature, (vi) no memo or charge sheet was
served, on him, prior thereto, nor was any domestic inquiry conducted
against him for any alleged misconduct, (vii) no notice was given, no
notice pay was offered and no compensation was paid to him prior to
his termination, (viii) he had remained unemployed since 15 th June,
1991.
9. Four opportunities were granted, to the petitioner, to lead its
evidence, on 24th April, 1996, 3rd July, 1996, 21st August, 1996 and
16th October, 1996. However, no evidence was led on its behalf. On
16th October, 1996, the petitioner was proceeded ex parte. The
application, of the petitioner, to set aside the said order was dismissed,
by the learned Labour Court vide order dated 19th March, 1997, which
was challenged, by the petitioner, before this Court, by way of
W.P. (C) 3676/1997.
10. In the said W.P. (C) 3676/1997, a submission was made, on 9th
July, 2003, by both learned counsel ad idem, that the order, dated 19th
March, 1997, rejecting the application of the petitioner for setting
aside the ex parte proceedings, could not be sustained. As such, the
said order was set aside.
11. In the meantime, however, an ex parte award was passed,
against the petitioner, on 4th September, 1997. With the leave of the
Court, W.P. (C) 3676/1997 was amended to challenge the said award.
12. Vide order dated 21st September, 2004, this Court observed that
the award, dated 4th September, 1997, was founded on the order, dated
19th March, 1997 supra, whereby the petitioner‟s application for
setting aside the ex parte proceedings, dated 16th October, 1996, had
been dismissed by the Labour Court. In view of the setting aside of
the said order, dated 19th March, 1997, by this Court on 9th July, 2003,
this Court observed, in its order dated 21 st September, 2004 in the
aforementioned W.P. (C) 3676/1997, that there was no option but to
set aside the award dated 4th September, 1997, and allow the petitioner
to lead evidence in support of its case. While doing so, this Court
made it a point to observe that the petitioner had been negligent in
conducting the case and had not filed its affidavit by way of evidence
despite having been granted four opportunities. The following
passage, from the said order, dated 21st September, 2004, merits
reproduction, in this regard:
"From the paper book, it appears that the Petitioner has
been negligent in conducting the case and did not file its
affidavit by way of evidence despite four opportunities
having been granted. A last opportunity is now granted to
the Petitioner to file its affidavit by way of evidence
within four weeks from today, subject to the Petitioner
paying costs of Rs.10,000/- to the Respondent-
Workman."
This Court, therefore, granted a last opportunity to the petitioner to
file its affidavit by way of evidence, within four weeks, subject to
costs of ₹ 10,000/-, payable to the respondent. Both parties were
directed to appear, before the Labour Court, on 4th October, 2004.
13. On 20th November, 2004, the petitioner filed the affidavits of its
witnesses namely H.S. Jutla and R.P.S. Panwar.
14. Both management witnesses deposed, in their affidavits-in-
evidence (which were identical, word for word, to the extent of typing
errors), that the respondent was engaged by the petitioner on
temporary muster roll basis as Beldar, on daily wages, for work which
was temporary in nature. They, however, specifically stated that the
respondent had worked for 84 days during the period 16 th July to 13th
October, 1990, 3 days during the period 24 th October 1990 to 41st
October, 1990 (the date is obviously wrong, even though the copy is
certified), 54 days from 1st December, 1990 to 13th January, 1990 and
94 days from 15th March, 1991 to 14th June, 1991, working out to a
total of 235 days. They, therefore, asserted that the respondent had not
completed 240 days of continuous employment with the petitioner in
the relevant preceding year, nor did he work 180 days at a stretch. It
was further stated, in the said affidavits, that the respondent was
engaged on temporary work such as the removal of malba, and that
such workers were engaged intermittently as per seasonal exigencies
and requirements.
15. On 5th February, 2015, the petitioner was directed to produce
both its witnesses, positively, on 3rd March, 2015, for examination.
The witnesses did not appear on the said date, and the opportunity, to
the petitioner, to produce its witnesses and lead its evidence was
closed.
16. The impugned Award notes the fact that, as a result, the
evidence led by the workman went un-rebutted and the petitioner
failed to support the averments contained in its written statement by
leading its own evidence.
17. The impugned Award holds thus:
(i) On the issue of whether the petitioner was an "industry",
reliance was placed on Bangalore Water Supply and Sewerage
Board v. A. Rajappa, AIR 1978 SC 969. Observing that the
petitioner was meeting the demands of the public by providing
electricity, water and other facilities, and was employing
persons for this purpose, and that no evidence had been led, by
the petitioner, to the contrary, the learned Labour Court decided
this issue against the petitioner and in favour of the respondent.
Ms. Malvika Trivedi, arguing for the petitioner, fairly did not
press this submission during arguments; accordingly, the
necessity to return any findings thereon, by this court, stands
obviated.
(ii) On the issue of legality of the respondent‟s termination,
too, the learned Labour Court observes that, despite grant of an
opportunity, by this Court, to the petitioner, to lead its evidence,
the petitioner had, by its own inaction, allowed the said
opportunity to go abegging. The testimony of the respondent
had remained un-rebutted, as he was not cross-examined by the
petitioner. The employment of the respondent, and his
termination, by the petitioner, was admitted by it. The only
defence, of the petitioner, was that the respondent had been
employed for casual work, which had come to an end. The
particulars of the said "casual work" were not, however,
forthcoming. Neither were the periods of "alleged breaks",
which, according to the petitioner, were given to the
respondent, mentioned. The testimony of the respondent, to the
effect that he remained in continuous employment from 16th
July, 1990 to 14th June, 1991, remained unchallenged. There
was no reason to disbelieve the same. This issue, too, was
therefore decided in favour of the respondent and against the
petitioner.
In the circumstances, the learned Labour Court directed reinstatement
of the respondent with continuity of service and full back wages.
18. The case of the petitioner, in this writ petition, is that the
respondent was engaged only for seasonal work, as beldar, and that he
had been terminated on the season coming to an end. It is alleged that
the respondent had admitted this fact. A perusal of the affidavit-in-
evidence of the respondent discloses, however, that this contention is
incorrect. The affidavit of the respondent merely states that he was
"being treated as a daily rated/casual/muster roll worker". He has
specifically averred, in his affidavit, that the job against which he was
working was of a permanent and regular nature. He has also averred
that he had completed 240 days of continuous employment.
Rival submissions at the Bar
19. Ms. Malvika Trivedi, arguing on behalf of the petitioner,
candidly conceded that the petitioner was remiss in prosecuting its
case before the Labour Court, and that, therefore, it could not really be
said that the Labour Court had gone astray in proceeding as it did.
She, however, asserts that the extant legal position is that, even if the
management failed to lead evidence to the contrary, the onus, to
establish the factum of having worked for 240 days in a calendar year,
remained on the workman, and that the said onus could not be
discharged merely by filing affidavits, but had to be supported by
positive evidence. She would, therefore, seek to contend that the
Labour Court erred in treating the default, on the part of her client, in
producing its witnesses, to prove the affidavits-in-evidence tendered
by them, as concluding the case against it, and in favour of the
respondent-workman. She presses, into service, in this regard, the
following authorities:
(i) C.N. Ramappa Gowda v. C.C. Chandregowda, (2012) 5
SCC 265,
(ii) Manager, Reserve Bank of India, Bangalore v. S. Mani,
(2005) 5 SCC 100,
(iii) Range Forest Officer v. S. T. Hadimani, (2002) 3 SCC
25,
(iv) Pankaj Dixit v. K. B. S. H. Export House, 2018 SCC
OnLine Del 6880
(v) DTC. v. Mohar Singh, 2018 SCC OnLine Del 11874,
(vi) Bhavnagar Municipal Corporation v. Jadeja Govubha
Chhanubha, (2014) 16 SCC 130.
(vii) District Development Officer v. Satish Kantilal Amrelia,
(2018) 12 SCC 298,
(viii) Jagbir Singh v. Haryana State Agriculture Marketing
Board, (2009) 15 SCC 327,
(ix) Vice-Chancellor, Lucknow University v. Akhilesh
Kumar Khare, (2016) 1 SCC 521, and
(x) Radha v. Food and Civil Supplies Department, 2018
SCC OnLine Del 10400.
20. By way of demurrer, Ms. Trivedi argued that the Labour Court
ought not to have directed reinstatement with full back wages, and
contended that the prevalent legal position was in favour of awarding
compensation, even where retrenchment was found to be unjustified.
She relied, for the said purpose, on the following authorities:
(i) Bharat Sanchar Nigam Limited v. Man Singh, (2012) 1
SCC 558,
(ii) Senior Superintendent Telegraph (Traffic), Bhopal v.
Santosh Kumar Seal, (2010) 6 SCC 773,
(iii) Delhi Development Authority v. Presiding Officer,
21. Ms. Trivedi also relied on Himanshu Kumar Vidyarthi v. State
of Bihar, (1997) 4 SCC 391, to combat the findings, of the Labour
Court, that her client was an "industry", amenable to the provisions of
the ID Act.
22. Ms. Trivedi concluded her submissions by highlighting, once
again, that the Labour Court had concentrated on the default of the
petitioner, instead of addressing itself to the onus cast, by the law, on
the respondent-workman, and whether the said onus stood discharged
or not. She pointed out that the workman had, in his statement of
claim as well as in his affidavit-in-evidence, admitted to being a daily
wager.
23. Adverting to the affidavit-in-evidence of the management
witnesses, Ms. Trivedi submits that the crucial "gap" between 235
days (as admitted by them) and 240 days (as contended by the
respondent) made all the difference, and that the Labour Court erred
in failing to take notice thereof. In any event, she submits that the
evidence of the said witnesses having been disallowed by the Labour
Court, it would not be permissible, for the respondent, to capitalise on
the "admission", as contained in the said affidavits, of his having
worked for 235 days.
24. Arguing in reply, Mr. Rajiv Agarwal sought to submit as under:
(i) It stood admitted, by the petitioner, that the respondent
had worked for a period of 235 days.
(ii) In fact, in working out the period of 84 days in 1990, the
management witnesses had erred as the petitioner had worked
from 15th July, 1990 to 14th October, 1990, uninterrupted
without leave, which worked out to 89 days. It was a well
settled position that weekends were includible while computing
the number of days for which the workman had worked.
(iii) Similarly, the "usual breaks", interspersing the periods
for which the workman had been engaged by the management,
were also includible, while computing the total number of days
for which the workman had worked.
(iv) The respondent had also specifically averred that his
juniors had been retained and regularised, while he had been
retrenched. Attention is invited, in this context, to the averment,
in sub-para (viii) of para 3 of the Statement of Claim filed by
the respondent, which recited that the respondent had been
"picked and chosen for termination of services by the
management out of his juniors and senior colleague who are
still working in the employment". He pointed out that the said
averment had been responded to, by the petitioner, in its written
statement, only by denying it "for want of knowledge". As
such, the dispute was not limited to Section 25F, but also
encompassed section 25G of the ID Act.
(v) No issue, regarding the respondent having worked, for
the petitioner, for 240 days in a calendar year, had been framed
by the Labour Court.
(vi) On the aspect of grant of full back wages, Mr. Agrawal
placed reliance on the following decisions:
(a) Surendra Kumar Verma v. Central Government
Industrial Tribunal-Cum-Labour, New Delhi (1980) 4
SCC 443,
(b) Judgment, dated 25th August, 2011, of a learned
Single Judge of this Court in W.P. (C) 6024/1999
(Management of M.C.D. v. Presiding Officer, Industrial
Tribunal),
(c) D.T.C. v. Ram Kumar, (1982) II LLJ 191 Del,
(d) Tapash Kumar Paul v. Bharat Sanchar Nigam
Limited, AIR 2015 SC 357, and
(e) Raj Kumar Dixit v. Vijay Kumar Gauri Shanker,
(2015) 9 SCC 345.
Analysis
25. There is no dispute about the fact that, after having filed the
affidavits of its witnesses namely H. S. Jutla and R. P. S. Panwar, the
petitioner defaulted in producing them, in the witness box, for proving
their affidavits and having them tendered in evidence. (Whether the
opportunity, provided by the Labour Court, to the petitioner, to do so,
were sufficient, or not, is an aspect which I shall address later in the
course of this judgment.) The Labour Court proceeded, consequent to
the said default, on the premise that the decision, to close the right, of
the petitioner, to cross-examine the respondent, who deposed as WW-
1, having gone unchallenged, and the petitioner having failed to
produce, in the witness box, its witnesses, to prove their affidavits-in-
evidence, the deposition of the respondent, in his affidavit-in-
evidence, read with his examination during trial, had necessarily to be
accepted, resulting in his entitlement to an award in his favour.
26. Ms. Trivedi has seriously questioned the propriety of such an
approach. According to her, even if her client had defaulted in leading
its evidence, the onus to establish his having worked for 240 days in a
calendar year, was squarely on the respondent, and the said onus
could not have been discharged merely by filing a self-serving
affidavit. She, therefore, sought to fault the Labour Court in
abdicating its responsibility to examine whether substantive evidence,
apart from his own affidavit had, in fact, been led, by the respondent-
workman, to establish the factum of his having worked, for the
petitioner, for 240 days in the preceding calendar year. She relied, for
the said purpose, on a number of judicial pronouncements, to which
reference has already been made hereinabove, and to which I shall
allude, presently.
27. Ms. Trivedi has submitted, emphatically, that the learned
Labour Court concentrated only on the default, as it perceived, on the
part of the appellant, in leading evidence to prove its stand, in the
process completely ignoring the burden of proof that primarily lay on
the respondent-workman, to establish his Statement of Claim. This,
she submits, was especially significant, as the workman had admitted
that he was a daily wager.
28. Opposing the writ petition, Mr. Agarwal, appearing for the
respondent-workman has, at the outset, pointed out that, in view of the
admission, on the part of the petitioner, that the respondent-workman
had worked, for the petitioner, in 1990-1991, for 235 days, with
"usual breaks", no further proof, of the respondent-workman having
worked for 240 days, in the said calendar year, with the petitioner,
was required, as "usual breaks" were includable, while estimating the
number of days, for which the workman had rendered service. He
invites my attention, in this context, to Section 25B of the ID Act,
specifically to clause (1) thereof [referred to, hereinafter, for the sake
of convenience, as "Section 25B(1)"], which reads thus:
"25B. Definition of continuous service. - For the
purposes of this Chapter, -
(1) A workman shall be said to be in continuous
service for a period if he is, for that period, in
uninterrupted service, including service which may be
interrupted on account of sickness or authorised leave or
an accident or a strike which is not illegal, or a lock-out
or a cessation of work which is not due to any fault on the
part of the workman;"
Periods, during which the respondent-workman was unable to work
owing to no fault of his were, therefore, Mr. Agarwal would seek to
contend, includible while assessing the period for which the workman
had been in "continuous service". Viewed thus, he submits, the
periods of "usual breaks", during the year 1991, would also be
includible in working out the period of continuous service of his client
and, as the said "usual breaks" would, in any case, be more than 5
days, the assertions, of the management-witnesses, in their affidavits-
in-evidence, pertaining to the period, in the 1990-1991 year, during
which the respondent-workman had worked for the petitioner, support
the petitioner stand that he had worked continuously, for over 240
days in the preceding calendar year, entitling him, thereby, to
regularisation.
29. Mr. Agarwal also relies on Section 25G of the ID Act, which
stipulates that, in the event of retrenchment, ordinarily, the principle
of "last come - first go" has to be followed. He points out that, while
retrenching his client, the petitioner had regularised his juniors, which
Section 25G did not permit. Section 25G of the ID Act reads thus:
"25G. Procedure for retrenchment. - Where any
workman in an industrial establishment, who is a citizen
of India, is to be retrenched and he belongs to a particular
category of workmen in that establishment, in the
absence of any agreement between the employer and the
workman in this behalf, the employer shall ordinarily
retrench the workman who was the last person to be
employed in that category, unless for reasons to be
recorded the employer retrenches any other workman."
The specific averment, of his client, in his Statement of Claim, filed
before the learned Labour Court, pertaining to the infraction of this
provision, Mr. Agarwal would seek to point out, had merely been
"denied for want of knowledge", in the written statement, filed by the
petitioner by way of response thereto. This, he submits, amounts to
rebuttal at all, thereby resulting in the averment, in his clients
Statement of Claim, as remaining un-rebutted.
30. Mr. Agarwal also points out that no issue, regarding the
respondent-workman having worked, for a period of 240 days in a
calendar year, had been framed by the learned Labour Court. It was
not open, therefore, according to him, to the petitioner, to seek to raise
a controversy on this aspect.
31. On the issue of entitlement, of the respondent-workman, to full
back wages, Mr. Agarwal relies on the following decisions:
(i) Surendra Kumar Verma v. Central Government
Industrial Tribunal-Cum-Labour, New Delhi, (1980) 4 SCC
443,
(ii) M.C.D. v. Presiding Officer, Industrial Tribunal
[judgment dated 25th August, 2011 in W.P. (C) 6024/1999],
(iii) D.T.C. v. Ram Kumar, (1982) II LLJ 191 Del,
(iv) Tapash Kumar Paul v. Bharat Sanchar Nigam Limited,
AIR 2015 SC 357, and
(v) Raj Kumar Dixit v. Vijay Kumar Gauri Shanker, (2015)
9 SCC 345.
32. Ergo, submits Mr. Agarwal, no occasion exists, for this Court to
interfere with the impugned award.
Analysis and Findings
33. Ms. Trivedi has advanced, essentially, only two submissions,
viz. (i) that the respondent had failed to discharge the burden, which
lay on him, to prove that he had worked for 240 days in a calendar
year, as would entitle him to regularisation under the ID Act, and (ii)
that, even if the grievance of the respondent was found to be
substantiated on merits, nevertheless, the appropriate direction would
be to grant him lump-sum compensation, rather than reinstate him in
service.
34. A comparative analysis of the Statement of Claim, filed by the
respondent-workman, and the written statement, filed by the
petitioner, before the learned Labour Court, reveals the following:
(i) It is an admitted position that the respondent-workman
joined the services of the petitioner on 15th July, 1990. The
averment, to this effect, in para 1 of the Statement of Claim, is
admitted to be a matter of record, in the corresponding para of
the "Reply on Merits", in the written statement. Besides, para 2
of the said "Reply on Merits" avers that the respondent-
workman "was employed w.e.f. 16/7/90 to 14/6/91 with usual
breaks".
(ii) The Statement of Claim, in para 3(i), that the job, being
performed by the respondent-workman was "of a permanent
and regular nature". This assertion is boldly denied, in the
corresponding para 2 of the written statement.
(iii) Needless to say, therefore, the averment, in para 3(ii) of
the Statement of Claim, to the effect that, by treating the
respondent-workman as a daily rated/casual/muster roll worker,
and paying him lesser remuneration than those regularly
employed for identical work, amounted to an "unfair labour
practice", within the meaning of clause (ra) of Section 2 of the
ID Act read with Item No. 10 of the 5th Schedule thereto, has
also been denied, in the corresponding para of the written
statement.
(iv) In sub-para (v) of para 3 of the Statement of Claim, it is
specifically asserted that the respondent-workman was "deemed
to have acquired the status of a permanent employee after
completing 240 days of continuous employment and he cannot
be thrown out of job in the manner it has been done". The
corresponding sub-para of para 4 in the written statement
"(denies) that the workman completed 240 days of continuous
employment" with the petitioner.
(v) The affidavits-in-evidence, tendered by the two witnesses
who appeared on behalf of the petitioner, unfortunately,
disclose total and abject want of care, in the manner in which
they have drafted and filed before the Labour Court. MW-1
H. S. Jutla process, in para 3 of his affidavit averment-evidence,
thus:
"That the workman was engaged during the period
from 16.07.1990 till 14.06.1991 with the petitioner
with breaks in service. The detailed breakup of the
period he worked with NDMC is given below.
With Shri H. S. Jutla 16.7.1990 to 13.10.1990 = 84 days
With Sh. Ashok Mehta 24.10.1990 to 41.10.1990 = 3 days
With Sh. Ashok Mehta 1.12.1990 to 13.1.1990 = 54 days
With Sh. R.P.S.Panwar 15.3.1991 to 14.6.1991 = 94 days
Total 235 days"
(vi) The affidavit-in-evidence tendered by MW-2 R.P.S.
Panwar, is equally unhelpful, deposing, as it does, thus (in para
3):
"That the workman was engaged during the period
from 16.07.1990 till 14.06.1991 with the petitioner
with breaks in service. The detailed breakup of the
period he worked with NDMC is given below.
With Shri H. S. Jutla 16.7.1990 to 13.10.1990 = 84 days
With Sh. Ashok Mehta 24.10.1990 to 41.10.1990 = 3 days
With Sh. Ashok Mehta 1.12.1990 to 13.1.1990 = 54 days
With Sh. R.P.S.Panwar 15.3.1991 to 14.6.1991 = 94 days
Total 235 days"
It is, therefore, uncomfortably apparent that the two witnesses, who
were cited, on behalf of the petitioner-Management, have filed
affidavits-in-evidence without, apparently, even reading the contents
thereof once over. That responsible officials of the petitioner could
tender such affidavits, before a Court of law, betokens a sorry state of
affairs in the establishment of the petitioner. It is impossible, from the
said affidavits, to work out the actual number of days, during which
the petitioner worked, for the one-year period prior to the date of his
termination. There is, however, substance in the contention of
Mr. Agarwal that, in view of the said affidavits, the petitioner cannot
be allowed to contend that the respondent had served the petitioner,
during the year immediately preceding the date of his disengagement,
for any period short of 235 days.
35. The muster rolls, during the aforesaid period, pertaining to the
respondent, also constitute part of the record of the Labour Court.
Reference would be made, to the said muster rolls, in greater detail,
hereinafter.
The question of burden of proof, and the discharge thereof
36. Adverting, now, to the point of law which arises for
determination in this case, and having examined the judgments, on
which Ms. Trivedi has placed reliance, I am of the opinion that, in
view of the decision, of the Supreme Court, in Range Forest Officer
(supra) which has been followed, subsequently, by the Supreme Court
in Rajasthan State Ganganagar S. Mills Ltd v. State of Rajasthan,
(2004) 8 SCC 161 and Manager, Reserve Bank of India, Bangalore
(supra), the burden of proof, to establish the factum of continuous
service for 240 days, in the year immediately preceding the date of
termination, is unquestionably on the workman.
37. Range Forest Officer (supra), was a short order, in which the
following pronouncement of the law is to be found, in para 3:
"............In our opinion the Tribunal was not right in
placing the onus on the management without first
determining on the basis of cogent evidence that the
respondent had worked for more than 240 days in the
year preceding his termination. It was the case of the
claimant that he had so worked but this claim was denied
by the appellant. It was then for the claimant to lead
evidence to show that he had in fact worked for 240 days
in the year preceding his termination. Filing of an
affidavit is only his own statement in his favour and that
cannot be regarded as sufficient evidence for any court
or tribunal to come to the conclusion that a workman
had, in fact, worked for 240 days in a year. No proof of
receipt of salary or wages for 240 days or order or
record of appointment or engagement for this period was
produced by the workman. On this ground alone, the
award is liable to be set aside."
(Emphasis supplied)
38. In Rajasthan State Ganganagar S. Mills Ltd (supra), too, the
workman sought to press, into service, the affidavit, tendered by him
in evidence before the Labour Court, as sufficient to establish his
claim of having worked for over 240 days in the year immediately
preceding his termination by the management. The Supreme Court
rejected this prayer, in para 6 of its judgment, in the following words:
"It was the case of the workman that he had worked for
more than 240 days in the year concerned. This claim
was denied by the appellant. It was for the claimant to
lead evidence to show that he had in fact worked up to
240 days in the year preceding his termination. He has
filed an affidavit. It is only his own statement which is in
his favour and that cannot be regarded as sufficient
evidence for any court or tribunal to come to the
conclusion that in fact the claimant had worked for 240
days in a year. These aspects were highlighted in Range
Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25. No
proof of receipt of salary or wages for 240 days or order
or record in that regard was produced. 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."
(Emphasis supplied)
39. In this case, therefore, the Supreme Court went a step further,
by holding that default, on the part of the management, in production
of the muster roll, for any particular period, could not result in a
finding adverse to the management and in favour of the workman,
insofar as the factum of the workman having worked, for the
management, for 240 days in the year immediately preceding his
termination, was concerned.
40. The aforesaid two decisions of the Supreme Court, in Range
Forest Officer (supra) and Rajasthan State Ganganagar S. Mills Ltd
(supra) were followed, by the Supreme Court, in Bhavnagar
Municipal Corporation (supra). Para 7 of the said decision reads as
under:
"It is fairly well-settled that for an order of termination of
the services of a workman to be held illegal on account of
non-payment of retrenchment compensation, it is
essential for the workman to establish that he was in
continuous service of the employer within the meaning of
Section 25-B of the Industrial Disputes Act, 1947. For the
respondent to succeed in that attempt he was required to
show that he was in service for 240 days in terms of
Section 25-B(2)(a)(ii). The burden to prove that he was in
actual and continuous service of the employer for the
said period lay squarely on the workman. The decisions
of this Court in Range Forest Officer v. S.T. Hadimani,
(2002) 3 SCC 25, Municipal Corpn., Faridabad v. Siri
Niwas, (2004) 8 SCC 195, M.P. Electricity
Board v. Hariram, (2004) 8 SCC 246, Rajasthan State
Ganganagar S. Mills Ltd. v. State of Rajasthan, (2004)
8 SCC 161, Surendranagar District
Panchayat v. Jethabhai Pitamberbhai, (2005) 8 SCC
450 and R.M. Yellatti v. Executive Engineer, (2006) 1
SCC 106 unequivocally recognise the principle that the
burden to prove that the workman had worked for 240
days is entirely upon him. So also the question whether
an adverse inference could be drawn against the employer
in case he did not produce the best evidence available
with it, has been the subject-matter of pronouncements of
this Court in Municipal Corpn., Faridabad v. Siri Niwas,
(2004) 8 SCC 195 and M.P. Electricity
Board v. Hariram, (2004) 8 SCC 246, reiterated in
RBI v. S. Mani, (2005) 5 SCC 100. This Court has held
that only because some documents have not been
produced by the management, an adverse inference
cannot be drawn against it."
(Emphasis supplied)
41. The above mentioned judgments, therefore, make it abundantly
clear that, in law, the burden, to prove that he had, in fact, worked for
the employer for 240 days in the year immediately preceding the date
of his termination, lies on the workman, and, at least ordinarily,
cannot be discharged merely by filing affidavits. Equally, it would not
be permissible to draw an adverse inference, against the
management/establishment, merely because certain documents have
not been filed by it. To this extent, therefore, the submissions of
Ms. Trivedi merit acceptance.
42. One may mention, here, that, in Director, Fisheries Terminal
Department v. Bhikubhai Meghajibhai Chavda, (2010) 1 SCC 47,
one finds that the Supreme Court has entered a cautionary caveat, to
the principles enunciated in the aforesaid decisions, keeping in mind
the difficulty which daily wage earners would face, in producing
collateral evidence regarding the number of days during which they
worked for the employer. Even while recognising that the position, in
law, was well settled, that the burden of proof was on the workman to
show that he had worked for 240 days in the last twelve months
preceding his alleged retrenchment, the Supreme Court, nevertheless,
opined that, once the workman had come forward and deposed to the
said effect, the burden of proof is shifted to the employer to prove that
the workman had not, in fact, completed 240 days in the requisite
period, to constitute continuous service. Paragraphs 15 to 17 of the
said decision may be reproduced, in this context, thus:
"15. The respondent claims that he was employed in the
year 1985 as a watchman and his services were
retrenched in the year 1991 and during the period
between 1985 to 1991, he had worked for a period of
more than 240 days. The burden of proof is on the
respondent to show that he had worked for 240 days in
preceding twelve months prior to his alleged
retrenchment. The law on this issue appears to be now
well settled.
16. This Court in R.M. Yellatti v. Asstt. Executive
Engineer, (2006) 1 SCC 106 has observed: (SCC p. 116,
para 17)
"17. ... However, applying general principles and
on reading the [aforesaid] 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 earners,
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 (the
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
the facts of each case."
17. Applying the principles laid down in the above
case by this Court, the evidence produced by the
appellant has not been consistent. The appellant claims
that the respondent did not work for 240 days. The
respondent was a workman hired on a daily-wage basis.
So it is obvious, as this Court pointed out in the above
case that he would have difficulty in having access to all
the official documents, muster rolls, etc. in connection
with his service. He has come forward and deposed, so in
our opinion the burden of proof shifts to the appellant
employer to prove that he did not complete 240 days of
service in the requisite period to constitute continuous
service."
(Emphasis supplied)
43. Though, plainly read, Director, Fisheries Terminal
Department (supra) relaxes, somewhat, the rigour of Range Forest
Officer (supra), and Rajasthan State Ganganagar S. Mills Ltd
(supra), it may be noted, in this context, that the judgment in
Manager, Reserve Bank of India, Bangalore (supra), on which
Rajasthan State Ganganagar S. Mills Ltd (supra), was rendered by a
bench of three Hon‟ble judges, whereas all other decisions are of
benches of two Hon‟ble judges each.
44. Be that as it may, the golden thread that runs through all these
decisions is that the burden, to establish the factum of his having
served the employer for 240 days in the year preceding his
retrenchment/termination, is unequivocally on the workman, and is
required to be discharged by cogent evidence. This Court is spared the
necessity of navigating through these decisions, in the present case,
for the simple reason that collateral evidence has, in fact, been placed,
on record, by the petitioner. As noted hereinabove, affidavits-in-
evidence have been filed by both the witnesses appearing for the
petitioner, namely H.S. Jutla and R.P.S. Panwar. Para 4 in each of
these affidavits, which is the para dealing with the number of days,
during which the respondent is stated to have served the petitioner,
during the year immediately preceding his superannuation, i.e. the
period between 16th July, 1990, and 14th June, 1991, as already noted
hereinabove, is incapable of interpretation, as worded. Even so, both
the said affidavits admit that, during the year immediately preceding
the termination, of the respondent from service, by the petitioner, he
had served the petitioner for 235 days.
45. It may be noted that, on the record of the learned Labour Court,
a statement, signed by the Assistant Engineer (Civil) in the office of
the petitioner on 8th November, 2004, and exhibited as Ex. MW-1/13,
is also available, which reflect the number of days, during which the
respondent served the petitioner, over the period of one year
immediately preceding his disengagement from service, as 233, as
opposed to 235, which is the figure reflected in para 4 of the
affidavits-in-evidence filed by the witnesses appearing on behalf of
the petitioner before the Labour Court.
46. Inconsistency, therefore, is apparently rife in the stand, adopted
by the petitioner, with respect to the number of days, with the
respondent served, in his office, during the period 16 th July, 1990 to
14th June, 1991.
47. The muster roll of the respondent, during the said period 16 th
July, 1990 and 14th June, 1991 was also exhibited before the learned
Labour Court. It is seen, on perusing the said muster roll, that three
annotations have been employed, by the petitioner, to denote the fact
of whether, on any particular day, the respondent was present, or not.
These are „A‟, „P‟ and „R‟, with „A‟ denoting „absent‟, „P‟ denoting
„present‟ and „R‟ denoting „rest‟. The manner in which the number of
days have been worked out, by the two witnesses, deposing on behalf
of the petitioner, in their respective affidavits-in-evidence (in para 4 of
each of the said affidavits), indicates that the days of "rest" have also
been included in the number of days for which the respondent worked.
From the muster rolls available, if one were to total the number of
days, which respondent has been marked „P‟ or „R‟, the number of
days works out to 233. It is also seen that, in the period 1 st October,
1990 to 24th October, 1990 and in the period 1st January, 1991 to 31st
January, 1991, the petitioner has not marked respondent „A‟, „P‟ or
„R‟ but has merely drawn a line across the said dates. Inasmuch as no
such line has been drawn across the dates in any other case, it is not
possible to understand what the said line denotes. If the respondent
were absent on the said date, he ought to have been marked „A‟.
Indeed, it would be seen that, for other days in the same month, which
the said line has been drawn across the aforesaid periods, the
respondent has, in fact, been marked „A‟. In my opinion, given the
prevarication exhibited in the affidavits-in-evidence filed by the
witnesses who deposed in favour of the petitioner, the inconsistency
between the number of working days as deposed in the said affidavits-
in-evidence, vis-à-vis the muster rolls relating to respondent, and the
somewhat enigmatic scoring out of certain days, during the aforesaid
one year, the respondent would be entitled to the benefit of doubt, for
the days, for which, instead of marking him „A‟, „P‟ or „R‟, the
petitioner has chosen to draw a line across the said dates. Adding the
said days to the remaining 233 days, the number of days, for which
respondent attended the office of the petitioner, during the one-year
period immediately preceding his termination, would work out to 252
days, which would be in excess of the requisite 240 days, as stipulated
in Section 25B of the ID Act. The grant of this benefit, to the
respondent would also be justified, as the number of days worked out,
even by the two witnesses, who deposed on behalf of the petitioner,
was just 5 days short of the magic figure of 240. The manner in which
the aforesaid figure of 233 has been worked out may be presented, in
a tabular fashion, thus:
Sr. Periods Days Rest Total
No. when Days
Present
1. 16.7.90 to 31.7.90 14 2 16
2. 1.8.90 to 31.8.90 27 4 31
3. 1.9.90 to 30.9.90 24 4 28
4. 1.10.90 to 24.10.90 11 - 11
5. 24.10.90 to 31.10.90 3 - 3
6. 1.12.90 to 31.12.90 27 4 31
7. 1.1.91 to 31.1.91 18 3 21
8. 15.3.91 to 31.3.91 15 2 17
9. 1.4.91 to 30.4.91 26 4 30
10. 1.5.91 to 31.5.91 29 2 31
11. 1.6.91 to 14.6.91 12 2 14
Total 233
* Apart from the above, for 11 days in the period 01 st
October, 1990, to 24th October, 1990 and for 8 days in the
period 01st January, 1991 to 31st January, 1991, a line has
been drawn on the attendance column, against the
respondent‟s name.
48. The material filed by the petitioner, before the learned Labour
Court, being inherently inconsistent in nature, and, as worked out
hereinabove, the number of days, for which the respondent served the
petitioner, during the period 16th July, 1990 to 14th June, 1991, adding
up to more than 240, I am of the opinion that the sworn statement of
the respondent, as contained in the affidavit-in-evidence tendered by
him before the learned Labour Court, which the petitioner chose not to
test by cross-examination, despite grant of an opportunity, deserves to
be accepted. The respondent would, therefore, be entitled to be treated
as having served the petitioner for more than 240 days in the year
immediately preceding 15th June, 1991, when his services were
disengaged.
49. The submission of Mr. Agarwal, appearing on behalf of the
respondent, to the above effect is, therefore, accepted, and the
contention, to the contrary, as urged by Ms. Trivedi, stands rejected.
50. There is, however, substance, in the submission of Ms. Trivedi,
that the retrenchment of the petitioner, even if found to have been
affected in violation of Section 25F of the ID Act, would not
necessarily entail, in its wake, a right, in favour of the respondent, to
reinstatement, ipso facto. On the question of whether a finding of
illegal retrenchment ought, in every case, to invite, as a fallthrough, a
direction for reinstatement, with or without back wages, the position
in law, as reflected in recent decisions of the Supreme Court, is that,
instead of awarding reinstatement, the wronged workman ought to be
awarded lump-sum compensation. The principle has been
authoritatively enunciated, in Bharat Sanchar Nigam Limited v.
Bhurumal, (2014) 7 SCC 177, in the following words:
"33. It is clear from the reading of the aforesaid
judgments that the ordinary principle of grant of
reinstatement with full back wages, when the termination
is found to be illegal is not applied mechanically in all
cases. While that may be a position where services of a
regular/permanent workman are terminated illegally
and/or mala fide and/or by way of victimisation, unfair
labour practice, etc. However, when it comes to the case
of termination of a daily-wage worker and where the
termination is found illegal because of a procedural
defect, namely, in violation of Section 25-F of the
Industrial Disputes Act, this Court is consistent in taking
the view that in such cases reinstatement with back wages
is not automatic and instead the workman should be
given monetary compensation which will meet the ends of
justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement
in such cases are obvious. It is trite law that when the
termination is found to be illegal because of non-payment
of retrenchment compensation and notice pay as
mandatorily required under Section 25-F of the Industrial
Disputes Act, even after reinstatement, it is always open
to the management to terminate the services of that
employee by paying him the retrenchment compensation.
Since such a workman was working on daily-wage basis
and even after he is reinstated, he has no right to seek
regularisation. Thus when he cannot claim regularisation
and he has no right to continue even as a daily-wage
worker, no useful purpose is going to be served in
reinstating such a workman and he can be given
monetary compensation by the Court itself inasmuch as if
he is terminated again after reinstatement, he would
receive monetary compensation only in the form of
retrenchment compensation and notice pay. In such a
situation, giving the relief of reinstatement, that too after
a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here.
There may be cases where termination of a daily-wage
worker is found to be illegal on the ground that it was
resorted to as unfair labour practice or in violation of the
principle of last come first go viz. while retrenching such
a worker daily wage juniors to him were retained. There
may also be a situation that persons junior to him were
regularised under some policy but the workman
concerned terminated. In such circumstances, the
terminated worker should not be denied reinstatement
unless there are some other weighty reasons for adopting
the course of grant of compensation instead of
reinstatement. In such cases, reinstatement should be the
rule and only in exceptional cases for the reasons stated
to be in writing, such a relief can be denied."
(Emphasis supplied)
51. The ratio decidendi emanating from the above-extracted
passages from Bharat Sanchar Nigam Limited (supra) [which have
been quoted, with approval, in the recent decision in State of
Uttarakhand v. Raj Kumar, 2019 SCC OnLine 16], as well as the
rationale thereof, apply, with full force, to the facts of the present
case. The respondent had worked for less than a year, as Beldar,
before his services were disengaged. It cannot be said that the
petitioner was guilty of "unfair labour practice", as defined in Section
2 (ra) of the ID Act, read with the Item No. 10 of the 5 th Schedule
thereto. As such, this case, too, would merit disposal with the
direction to grant lump-sum compensation, to the respondent, instead
of reinstating him in service.
52. The Order, dated 21st September, 2004, passed by this Court in
W.P. (C) 3676/1997 reveals that, at the time of his disengagement on
15th June, 1991, the respondent was drawing a salary of ₹ 1,050/- per
month. Computed over a period of 28 years, for which the respondent
would have continued to work, had he been reinstated in service, as
directed by the learned Labour Court, the total wages which he would
have drawn (not allowing for inflation, grant of increment, etc., as he
was only a Beldar), would be ₹ 3,52,800/-. As, however, the
respondent has not served the petitioner after 14 th June, 1991, I am of
the opinion that the lump-sum wages, be payable to him for the period
from 14th June 1991 onwards, by way of compensation, should be
limited to ₹ 2,50,000/-. In this context, I may note the fact that, in
para 3 of CM 44436/2016, preferred by him under Section 17B of the
ID Act, the respondent has categorically stated that he was not
gainfully employed in any establishment, after the termination of his
services by the petitioner. No evidence, indicating gainful
employment, by the respondent, after his termination, has been
adduced by the petitioner, in its reply to the aforesaid application of
respondent. Payment, as directed by this Court, to be made to the
respondent, under Section 17B of the ID Act, has also been made,
thereby indicating that the said order has been accepted by the
petitioner.
53. The respondent, therefore, in my view would be entitled to be
paid a lump-sum compensation of ₹ 2, 50,000/-, less the amount paid
to him under Section 17B of the ID Act, by the petitioner.
54. Resultantly, the writ petition of the petitioner is allowed in part,
by upholding the finding, of the learned Labour Court, to the effect
that the respondent had been illegally retrenched from service, but
modifying the relief granted to him for payment of a lump-sum
compensation of ₹ 2,50,000/-, from which the amount already paid to
him, under Section 17B of the ID Act, would be entitled to
adjustment.
55. In view of the protracted litigation, which the respondent has to
fight, despite having succeeded before the learned Labour Court, I
deem it appropriate to award costs, in his favour, quantified at
₹ 25,000/-.
56. Payments, in terms of this judgment, be made, to the
respondent, within a period of four weeks from the date of
presentation, before the petitioner, of a certified copy of this
judgment.
57. Record of the learned Labour Court be returned forthwith.
C. HARI SHANKAR, J.
AUGUST 22, 2019
HJ
