Gujarat High Court
Mehsana Nagarpalika Thro Chief Officer vs Ashwinkumar Babulal Barot on 2 February, 2024
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19430 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 14095 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MEHSANA NAGARPALIKA THRO CHIEF OFFICER
Versus
ASHWINKUMAR BABULAL BAROT
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Appearance:
MR SIDDHARTH H DAVE(5306) for the Petitioner(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 02/02/2024
1. Both these petitions are challenging the judgment and
award passed by the Labour Court, Mehsana in Reference
(LCM) No.420 of 2008 (Old No.168 of 2003) and therefore,
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they are heard together and dispose of by this common
judgment.
1.1 By way of Special Civil Application No.19430 of 2018,
the employer has challenged the award of reinstatement of the
workman.
1.2 Whereas by way of Special Civil Application No.14095 of
2019, the workman has asked for full back wages for the
intervening period along with the award of reinstatement.
3. FACTS :
3.1. As per the case of the employer, the workman was
appointed as a daily wager and was working as a bore
operator for 6 years and thereafter worked as a peon in tax
department of Nagarpalika. It is the case of the workman that
the respondent on 31/12/2002 has illegally terminated the
services of the petitioner without following the due procedure
as contemplated under the provisions of the Industrial Disputes
Act. Hence, the workman lodged a complaint before the
Conciliation Officer, Mahesana. However, as the dispute could
not be resolved, the same was referred to the Labour Court,
Kalol which was subsequently registered as Reference (LCK)
No.168 of 2003, which later on transferred to Labour Court,
Mahesana and renumbered as Reference (LCM) No.420 of 2008.
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The same was rejected on the ground of non - availability of
evidence. Thereafter, the workman preferred Misc. Application
No.4 of 2014 under Rule 26-A of the Industrial Disputes
(Gujarat) Rules, 1966 for restoration of the Reference, wherein
vide order dated 30.12.2014 the reference was restored. The
Labour Court, at the end of the trial passed the judgment and
award granting reinstatement to the workman but without
back-wages, against which both - the workman and the
employer have filed these writ petitions.
4. SUBMISSION OF THE WORKMAN :-
4.1. Learned advocate Mr. Prabhakar Upadhyay for the
workman has vehemently submitted that the workman was
working as daily wager with the employer Nagarpalika in
Water Works Department from 01.01.1995 to 31.12.1997 and
with the Tax Department from 01.01.1998 to 31.12.2002 with
monthly salary at the rate of Rs.77/- per day and his services
were continuous, however, the employer terminated the
services of the workman on 31/12/2002 and therefore, the
termination is in violation of the provisions of the Industrial
Disputes Act. It is submitted that the workman has submitted
an application below Exh.17 before the Labour Court seeking
the production of documents which are in possession of the
employer to prove that he has worked continuously. It is also
submitted that the workman has rendered 8 years of
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continuous services. It is further submitted that once the
workman has established that there is a violation of Section
25F, the workman is entitled for the relief of reinstatement
with continuity of service with full back wages for the
intervening period. It is submitted that however, the Labour
Court erred in not granting relief of full back wages and only
granted reinstatement, which is illegal. Hence, it is prayed to
allow SCA No.14095 of 2019 and grant back wages to the
workman.
4.2 Learned advocate for the workman relied upon the
following decisions;
(1) R. M. Yellatti vs. Asst. Executive Engineer reported in
2006 (1) SCC 106
(2) Director, Fisheries Terminal Division vs. Bhikubhai
Meghajibhai Chavda reported in 2010 (1) SCC 47
(3) Gauri Shanker vs. State of Rajasthan reported in 2015
(12) SCC 754
(4) Gopal Krishnaji Ketkar vs. Mohamed Haji Latif reported
in AIR 1968 SC 1413
(5) Jeetubhai Khansangji Jadeja vs. Kachh District
Panchayat reported in 2022 (0) AIJEL - SC 69897
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5. SUBMISSIONS OF THE EMPLOYER :
5.1. Learned advocate Mr. Siddharth H Dave for the employer
- Nagarpalika has vehemently submitted that the Labour Court
has erred in awarding reinstatement to the workman. It is
submitted that the workman was not a permanent employee
and was only engaged as daily wager on daily basis for serving
tax bills and disconnecting water connection of tax defaulter. It
is further submitted that in fact, workman has not completed
240 days of service in the preceding 12 months and the Labour
Court wrongly came to such conclusion on assumptions and
presumptions. It is also submitted that the workman is required
to prove that he has worked for 240 days as contemplated
under Section 25B of the Industrial Disputes Act.
5.2 It is also submitted that the delay was occurred only
because of the matter was dismissed and then restored and
therefore, continuity of service without working for that period
could not be granted by the Labour Court. He has prayed to
allow Special Civil Application No.19430 of 2018.
5.3 Learned advocate for the employer is relying upon the
following decisions;
(1) State of Uttarakhand & ors. vs. Sureshwati reported in
(2021) 3 SCC 108
(2) Batala Coop Sugar Mills ltd. vs. Sowaran Singh
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reported in (2005) 8 SCC 481
(3) Ajnala Co-operative Sugar Mills Ltd. vs. Sukhraj Singh
reported in (2009) 17 SCC 326
(4) Senior Superintendent Telegraph (Traffic), Bhopal vs.
Santosh Kumar Seal & Ors. Reported in (2010) 6 SCC 773
6. Having heard the learned advocates for the respective
parties and considering the material on record and the findings
of the Labour Court, it is clear that the Labour Court on
appreciation of evidence, has came to the conclusion that the
workman has worked for 240 days in the last presiding year
with the employer. Therefore, the said finding is not required
to be interfered with.
7.1 The Labour Court, relying the documents on record, has
come to the conclusion that the workman was working in
water works department of Nagarpalika. It is specific case of
the workman that he was under the employment of the
employer for 8 years. As such, he was not having appointment
order or any other documents. Considering the evidence, the
Labour Court has come to the conclusion that the workman
was working under the employer.
7.2 An affidavit of the Chief Officer of the Nagarpalika was
produced at Exh.25 before the Labour Court, wherein he has
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admitted that the workman was working with water works
department from 01.01.1995 till 31.12.1997 and thereafter from
01.01.1998 to 31.12.2002, he was working with the tax
department of Nagarpalika. He has also admitted that at the
time of retrenchment, no notice or notice pay or any
compensation was given to the workman.
7.3. On appreciation of evidence, the Labour Court has come
to the conclusion that the workman was working under the
employer and he had worked for 8 years. The workman has
claimed that he has worked for 240 days in the last year and
he was terminated on 31.12.2002, without issuing any notice,
notice pay or retrenchment compensation. To prove such thing,
the workman has filed an application at Exh.17 seeking
relevant documents like presence slip etc. from the employer.
However, the employer has failed to produce the documents on
record and therefore, the Labour Court came to the conclusion
that workman has worked for 240 days in last years and that
as per the provisions of Section 25B of the Act there is
continuous service. As such, there is breach of Section 25(F)
of the I.D. Act and the said termination is in violation of the
provisions of section 25(F), 25(G) and 25(H) of the I.D. Act
and therefore, the Labour Court has rightly held the
termination of the workman by the employer as illegal.
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7.4 In light of above discussion, if we peruse the decisions
relied upon by the learned advocate for the workman, in case
of R. M. Yellatti (supra), the Hon'ble Supreme Court held as
under;
"12. 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 u/s. 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 Art. 226 of the Constitution of India will not
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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.
13. Now applying the above decision to the facts of the
present case, we find that the workman herein had
stepped in the witness box. He had called upon the
management to produce the nominal muster rolls for the
period commencing from 22.11.1988 to 20.06.1994. This
period is the period borne out by the certificate (exhibit
W1) issued by the former Asstt. Executive Engineer. The
evidence in rebuttal from the side of the management
needs to be noticed. The management produced five
nominal muster rolls (NMRs), out of which 3 NMRs,
exhibit M1, exhibit M2 and exhibit M3, did not even
relate to the concerned period. The relevant NMRs
produced by the management were exhibit M4 and exhibit
M5, which indicated that the workmen had worked for 43
days during the period 21.01.1994 to 20.02.1994 and
21.03.1994 to 20.04.1994 respectively. There is no
explanation from the side of the management as to why
for the remaining period the nominal muster rolls were
not produced. The labour court has rightly held that there
is nothing to disbelieve the certificate (exhibit W1). The
High Court in its impugned Judgement has not given
reasons for discarding the said certificate. In the
circumstances, we are of the view that the division bench
of the High Court ought not to have interfered with the
concurrent findings of fact recorded by the labour court
and confirmed by the learned single judge vide order
dated 7.06.2000 in writ petition no. 17636 of 2000. This
is not, therefore, a case where the allegations of the
workman are founded merely on an affidavit. He has
produced cogent evidence in support of his case. The
workman was working in SD-1, Athani and exhibit W1
was issued by the former Asstt. Executive Engineer,
Hipparagi Dam Construction Division No. 1, Athani-
591304. In the present case, the defence of the
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management was that although exhibit W1 refers to the
period 22.11.1988 to 20.06.1994, the workman had not
worked as a daily wager on all days during that period. If
so, the management was duty bound to produce before
the labour court the nominal muster rolls for the relevant
period, particularly when it was summoned to do so. We
are not placing this Judgement on the shifting of the
burden. We are not placing this case on drawing of
adverse inference. In the present case, we are of the view
that the workman had stepped in the witness box and his
case that he had worked for 240 days in a given year was
supported by the certificate (exhibit W1). In the
circumstances, the division bench of the High Court had
erred in interfering with the concurrent findings of fact.
14. Before concluding, we would like to make an
observation with regard to cases concerning
retrenchment/termination of services of daily waged
earners, particularly those who are appointed to work in
Government departments. Daily waged earners are not
regular employees. They are not given letters of
appointments. They are not given letters of termination.
They are not given any written document which they
could produce as proof of receipt of wages. Their muster
rolls are maintained in loose sheets. Even in cases, where
registers are maintained by the Government departments,
the officers/clerks making entries do not put their
signatures. Even where signatures of clerks appear, the
entries are not countersigned or certified by the appointing
authorities. In such cases, we are of the view that the
State Governments should take steps to maintain proper
records of the services rendered by the daily wagers; that
these records should be signed by the competent
designated officers and that at the time of termination, the
concerned designated officers should give certificates of
the number of days for which the labourer/daily wager
has worked. This system will obviate litigations and
pecuniary liability for the Government."
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7.5 In case of Bhikubhai Meghajibhai Chavda (supra), the
Hon'ble Supreme Court has held as under;
14. Section 25B of the Act defines "continuous service". In
terms of Sub-section (2) of Section 25B that if a workman
during a period of 12 calendar months preceding the date
with reference to which calculation is to be made, has
actually worked under the employer 240 days within a
period of one year, he will be deemed to be in continuous
service. The Respondent claims 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 and
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 12 months prior to
his alleged retrenchment. The law on this issue appears to
be now well-settled. This Court in the case of R.M.
Yellatty V/s. Assistant Executive Engineer (2006) 1 SCC
106 has observed:
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 up 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 of termination. There will also be no
receipt of 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 of termination, if any, the wage
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register, the attendance register etc. Drawing of
adverse inference ultimately would depend thereafter
on the facts of each case.
15. Applying the principles laid down in the above case
by this Court, the evidence produced by the Appellants
has not been consistent. The Appellants claim 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 employer
/Appellants to prove that he did not complete 240 days of
service in the requisite period to constitute continuous
service. It is the contention of the Appellant that the
services of the Respondent were terminated in 1988. The
witness produced by the Appellant stated that the
Respondent stopped coming to work from February, 1988.
The documentary evidence produced by the Appellant is
contradictory to this fact as it shows that the Respondent
was working during February, 1989 also. It has also been
observed by the High Court that the muster roll for 1986-
87 was not, completely produced. The Appellants have
inexplicably failed to produce the complete records and
muster rolls from 1985 to 1991, in spite of the direction
issued by the Labour Court to produce the same. In fact,
there has been practically no challenge to the deposition
of the Respondent during cross-examination. In this
regard, it would be pertinent to mention the observation
of Three-judges Bench of this Court in the case of
Municipal Corporation, Faridabad V/s. Siri Niwas3 (2004)
8 SCC 195, where it is observed:
A Court of Law even in a case where provisions of
the Indian Evidence Act apply, may presume or may
not presume that if a party despite possession of the
best evidence had not produced the same, it would
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have gone against this contentions. The matter,
however, would be different where despite direction
by a Court the evidence is withheld.
16. It is not in dispute that the Respondent's service was
terminated without complying with the provisions of
Section 25F of Industrial Disputes Act. Section 25G of the
Act provides for the procedure for retrenchment. The
Section reads:
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 Labour Court based on the pleadings and evidence
on record has come to the conclusion that the services of
some of the employees junior to the Respondent was
continued after the Respondent was discharged from its
duties. The dates of joining of some of the fellow
employees of the Respondent like Mohanbhai, Kalubhai
and Nanjibhai were not produced by the Appellants. The
Appellants have clearly failed to prove that the services
of no junior employee was continued when the services
of the Respondent was terminated. Thus, the procedure
laid down in Section 25G has also not been followed.
The findings on facts by the labour cannot be termed as
perverse and need no interference."
7.6 In case of Gauri Shankar (supra), Hon'ble the Apex Court
after relaying upon a decision in case of Gopal Krishnaji Ketkar
(supra) held as under;
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"14. The aforesaid contentious points are required to be
answered in favour of the workman for the following
reasons:
14.1. It is not in dispute that the workman was employed
with the respondent- Department in the year 1987 and on
the basis of material evidence adduced by both the parties
and in the absence of the non-production of muster rolls
on the ground that they are not available, which
contention of the respondent-Department is rightly not
accepted by the Labour Court and it has recorded the
finding of fact holding that the workman has worked from
1.1.1987 to 1.4.1992. The Labour Court has drawn adverse
inference with regard to non-production of muster rolls
maintained by them, in this regard, it would be useful to
refer to the judgment of this Court in the case of Gopal
Krishnaji Ketkar V. Mohd. Haji Latif & Ors.[6] wherein it
was held thus:
"5. .........Even if the burden of proof does not lie
on a party the Court may draw an adverse
inference if he withholds important documents in
his possession which can throw light on the facts
at issue. It is not, in our opinion, a sound
practice for those desiring to rely upon a certain
state of facts to withhold from the Court the
best evidence which is in their possession which
could throw light upon the issues in controversy
and to rely upon the abstract doctrine of onus of
proof. In Murugesam Pillai v. Gnana Sambandha
Pandara Sannadhi, Lord Shaw observed as
follows:
"A practice has grown up in Indian procedure of those
in possession of important documents or information
lying by, trusting to the abstract doctrine of the onus
of proof, and failing, accordingly, to furnish to, the,
Courts the best material for its decision. With regard
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to third parties, this may be right enough-they have
no responsibility for the conduct of the suit but with
regard to the parties to the suit it is, in their
Lordships' opinion an inversion of sound practice for
those desiring to rely upon a certain state of facts to
withhold from the Court the written evidence in their
possession which would throw light upon the
proposition."
This passage was cited with approval by this Court in a
recent decision-- Biltu Ram & Ors. V. Jainandan Prasad
& Ors. In that case, reliance was placed on behalf of the
defendants upon the following passage from the decision
of the Judicial Committee in Mt. Bilas Kunwar V. Desraj
Ranjit Singh :-
"But it is open to a litigant to refrain from
producing any documents that he considers
irrelevant; if the other litigant is dissatisfied it is for
him to apply for an affidavit of documents and he
can obtain inspection and production of all that
appears to him in such affidavit to be relevant and
proper. If he fails so to do, neither he nor the
Court at his suggestion is entitled to draw any
inference as to the contents of any such
documents."
14.2. The said finding of the Labour Court is re-affirmed
by the learned single Judge which also affirmed the
finding that the action of the respondent- Department in
terminating the services of the workman w.e.f. 1.4.1992
is a case of retrenchment as defined under Section 2(oo)
of the Act as the termination of the services of the
workman is otherwise for misconduct by the respondent-
Department. Further, undisputedly the non-compliance of
the mandatory requirements as provided under the
provisions of Sections 25F clauses (a) and (b), 25G and
25H of the Act read with Rules 77 and 78 of the relevant
Rajasthan Industrial Dispute Rules, 1958 has rendered the
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order of termination passed against the workman void ab
initio in law. The Labour Court in the absence of any
material evidence on record in justification of the case of
the respondent-Department has rightly recorded the
finding of fact and held that the order of termination
passed against the workman is bad in law, the same
being void ab initio in law it has passed an award for
reinstatement of the workman in his post in exercise of
its original jurisdiction under provision of Section 11 of
the Act. The Labour Court has rightly followed the
normal rule of reinstatement of the workman in his
original post as it has found that the order of termination
is void ab-initio in law for non compliance with the
mandatory provisions of the Act referred to supra.
However, the Labour Court is not correct in denying
backwages without assigning any proper and valid
reasons though the employer did not prove either its
stringent financial conditions for denial of back wages or
that workman has been gainfully employed during the
period from the date of order of termination till the
award was passed in favour of the workman except
granting Rs.2,500/- as compensation for the suffering
caused to the workman. The same is erroneously
modified by the learned single Judge who recorded the
finding of fact for the first time by holding that the
workman is a casual employee intermittently working in
the respondent-Department. The learned single Judge of
the High Court has exceeded his jurisdiction under
Articles 226 and 227 of the Constitution of India as per
the legal principles laid down by this Court in the case
of Harjinder Singh (supra) wherein this Court has held
thus:-
"17. Before concluding, we consider it necessary to
observe that while exercising jurisdiction under
Articles 226 and/or 227 of the Constitution in
matters like the present one, the High Courts are
duty bound to keep in mind that the Industrial
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Disputes Act and other similar legislative
instruments are social welfare legislations and the
same are required to be interpreted keeping in view
the goals set out in the preamble of the
Constitution and the provisions contained in Part IV
thereof in general and Articles 38, 39(a) to (e), 43
and 43A in particular, which mandate that the State
should secure a social order for the promotion of
welfare of the people, ensure equality between men
and women and equitable distribution of material
resources of the community to sub-serve the
common good and also ensure that the workers get
their dues. More than 41 years ago,
Gajendragadkar, J, opined that "the concept of
social and economic justice is a living concept of
revolutionary import; it gives sustenance to the rule
of law and meaning and significance to the ideal of
welfare State" - State of Mysore V. Workers of Gold
Mines AIR 1958 SC 923."
14.3. The said principle has been reiterated by this Court
in Jasmer Singh v. State Of Haryana & Anr. (Civil Appeal
NO. 346 of 2015 decided on 13.1.2015).
15. Therefore, in view of the above said case, the learned
single Judge in exercise of its powers under Articles 226
and 227 of the Constitution of India erroneously interfered
with the award of reinstatement and future salary from
the date of award till date of reinstatement as rightly
passed by the Labour Court recording valid and cogent
reasons in answer to the points of dispute holding that the
workman has worked from 1.1.1987 to 1.4.1992 and that
non-compliance of the mandatory requirements under
Sections 25F, 25G and 25H of the Act by the respondent-
Department rendered its action of termination of the
services of the workman as void ab initio in law and
instead the High Court erroneously awarded a
compensation of Rs.1,50,000/- in lieu of reinstatement.
The learned single Judge and the Division Bench under
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their supervisory jurisdiction should not have modified the
award by awarding compensation in lieu of reinstatement
which is contrary to the well settled principles of law laid
down in catena of cases by this Court."
7.7 In case of Jeetubha Khansangji Jadeja (supra), the Hon'ble
Apex Court has observed and held as under;
"14. In the present case, this court finds no perversity or
unreasonableness on the part of the Labour Court and the
single judge in directing the appellant's reinstatement. Had
the respondent management chosen to accept the verdict,
the appellant would have been spared the agony of
waiting for more than 10 years. In such circumstances, the
denial of backwages, has resulted in punishing him,
although the delay is attributable to the judicial process.
However, the respondent management cannot be absolved
of the primary responsibility in its litigative proclivity. In
these circumstances, the appellant shall be entitled to
backwages for a period of two years immediately
preceding, i.e., from 01.01.2020 to 01.01.2022."
8. In support of his case, learned advocate for the employer
also relied upon the decision of the Hon'ble Supreme Court in
case of Sureshwati (supra), the relevant observations are as
under;
"17. The Respondent has failed to prove that she had
worked for 240 days during the year preceding her alleged
termination on 8.3.2006. She has merely made a bald
averment in her affidavit of evidence filed before the
Labour Court. It was open to the Respondent to have
called for the records of the School i.e. the Attendance
Register and the Accounts, to prove her continuous
employment till 8.3.2006. Since the School was being
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administered by the Government of Uttarakhand from
2005 onwards, she could have produced her Salary Slips
as evidence of her continuous employment upto
08.03.2006. However, she failed to produce any evidence
whatsoever to substantiate her case. The reliance placed
by the Respondent on the letter dated 20.6.2013 from the
Block Development Officer, Roorkee cannot be relied
upon. The letter acknowledges that the Respondent was on
leave when the Government took over the School, and
started receiving grants in aid. The Block Development
Officer's recommendation to the Chief Education Officer,
Haridwar to act in compliance with the Order dated
5.2.2010 passed by the Labour Court cannot be relied on,
as the Award dated 5.2.2010 was set aside by the High
Court.
18. On the basis of the evidence led before the Labour
Court, we hold that the School has established that the
Respondent had abandoned her service in 1997, and had
never reported back for work. The Respondent has failed
to discharge the onus to prove that she had worked for
240 days' in the preceding 12 months prior to her alleged
termination on 8.3.2006. The onus was entirely upon the
employee to prove that she had worked continuously for
240 days' in the twelve months preceding the date of her
alleged termination on 8.3.2006, which she failed to
discharge.
19. A division bench of this Court in Bhavnagar Municipal
Corpn. v. Jadeja Govubha Chhanubha, (2014) 16 SCC 130
held that :
"7. 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
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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 : 2004 SCC (L&S) 1055] ,
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
and M.P. Electricity Board v. Hariram [M.P. Electricity
Board v. Hariram, , 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.""
8.1 The another decision which is relied upon by the learned
advocate for the employer is in case of Batala Coop Sugar
Mills Ltd. (Supra), the relevant observations are as under;
"13. So far as the question of onus regarding working for
more than 240 days is concerned, as observed by this
Court in Range Forest Officer V/s. S.T. Hadimani, 2002 3
SCC 25 the onus is on the workman. It was noted in the
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said Judgement as follows-.
"2. In the instant case, dispute was referred to the
Labour Court that the respondent had worked for 240
days and his service had been terminated without
paying him any retrenchment compensation. The
appellant herein did not accept this and contended
that the respondent had not worked for 240 days. The
Tribunal vide its award dated 10.08.1998 came to the
conclusion that the service had been terminated,
without giving retrenchment compensation. In arriving
at the conclusion that the respondent had worked for
240 days the Tribunal stated that the burden was on
the management to show that there was justification
in termination of the service and that the affidavit of
the workman was sufficient to prove that he had
worked for 240 days in a year.
3. For the view we are taking, it is not necessary to
go into the question as to whether the appellant is an
'industry' or not, though reliance is placed on the
decision of this Court in State of Gujarat V/s.
Pratamsingh Narsinh Parmar, 2001 9 SCC 713. 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 so 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
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alone, the award is liable to be set aside. However,
Mr. Hegde, appearing for the Department states that
the State is really interested in getting the law settled
and the respondent will be given an employment on
compassionate grounds on the same terms as he was
allegedly engaged prior to his termination, within two
months from today.""
8.2 In case of Sukhraj Singh (supra), Hon'ble the Apex Court
has relied upon a decision in case of Batala Coop Sugar Mills
Ltd.(supra) and observed as under;
"8. Learned counsel for the appellant is correct that it
was for the workman to establish that he had worked for
more than 240 days. Learned counsel for the respondent
has referred to certain materials which have been filed as
additional documents in this case. These were not part of
the records before the Labour Court or the High Court. It
appears that the High Court did not examine the issues in
the proper perspective as to whether Labour Court did not
specifically deal with the stand of the appellant that the
workman had not completed more than 240 days as he
was working as a seasonal daily wager and after the
season was over there was no engagement."
8.3 Hon'ble Apex Court in the case of Santosh Kumar Seal
(supra), has observed and held as under :-
9. In last few years it has been consistently held by this
Court that relief by way of reinstatement with back wages
is not automatic even if termination of an employee is
found to be illegal or is in contravention of the prescribed
procedure and that monetary compensation in lieu of
reinstatement and back wages in cases of such nature may
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be appropriate,.... (See U.P. State Brassware Corpn. Ltd.
& Anr. v. Uday Narain Pandey1; Uttaranchal Forest
Development Corpn. v. M.C. Joshi2; State of M.P. & Ors.
v. Lalit Kumar Verma3; Madhya Pradesh Administration v.
Tribhuban4; Sita Ram & Ors. v. Moti Lal Nehru Farmers
Training Institute5; Jaipur Development Authority v.
Ramsahai & Anr.6; Ghaziabad Development Authority &
Anr. v. (2006) 1 SCC 479 (2007) 9 SCC 353 (2007) 1 SCC
575 (2007) 9 SCC 748 (2008) 5 SCC 75 (2006) 11 SCC 684
Ashok Kumar & Anr.7 and Mahboob Deepak v. Nagar
Panchayat, Gajraula & Anr.8).
10. In a recent judgment authored by one of us (R.M.
Lodha, J.) in the case of Jagbir Singh v. Haryana State
Agriculture Marketing Board and Anr.9, the aforesaid
decisions were noticed and it was stated :
"7. It is true that the earlier view of this Court
articulated in many decisions reflected the legal
position that if the termination of an employee
was found to be illegal, the relief of
reinstatement with full back wages would
ordinarily follow. However, in recent past, there
has been a shift in the legal position and in a
long line of cases, this Court has consistently
taken the view that relief by way of
reinstatement with back wages is not automatic
and may be wholly inappropriate in a given fact
situation even though the termination of an
employee is in contravention of the prescribed
procedure. Compensation instead of reinstatement
has been held to meet the ends of justice.
14. It would be, thus, seen that by a catena
of decisions in recent time, this Court has
clearly laid down that an order of
retrenchment passed in violation of Section
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25-F although may be set aside but an
award of reinstatement should not, however,
be automatically passed. The award of
reinstatement with full back wages in a case
where the workman has completed 240 days
of work in a year preceding the date of
termination, particularly, daily wagers has
not been found to be proper by this Court
and instead compensation has been awarded.
This Court has distinguished between a daily
wager who does not hold a post and a
permanent employee".
11. In view of the aforesaid legal position and the fact
that the workmen were engaged as daily wager about 25
years back and they worked hardly for 2 to 3 years,
relief of reinstatement and back wages to them cannot be
said to be justified and instead monetary compensation
would sub serve the ends of justice. In our considered
view, the compensation of Rs.40,000 to each of the
workmen (Respondents 1 to 14) shall meet the ends of
justice. We order accordingly. Such payment shall be
made within 6 weeks from today, failing which the same
shall carry interest at the rate of 9% per annum."
9. In the present case, the statement of claim of the
workman reveals that he has specifically stated that he was
orally terminated on 01.01.2004 and on 19.01.2011, a notice
by Registered Post A.D. raising the demand given by him. It is
also stated by him that the respondent-University has engaged
some workers by outsourcing after he has been retrenched
from service and they are still working. The industrial dispute
was referred by way of the reference. Thus, a bare perusal of
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the statement of claim assuming the same is correct and
undisputed, it reveals that was terminated in 2004 and after a
period of 7 years, he raised the industrial dispute in 2011 by
issuing the notice.
9.1 In view of above discussion, it is clear that the workman
has worked for more than 8 years with the Nagarpalika
continuously and that he has also completed 240 days of
service in preceding year and therefore, the impugned order
passed by the Labour Court awarding reinstatement to the
workman requires no interference. As such, Special Civil
application No.19430 of 2018 being devoid of merits deserves
to be dismissed and the same is dismissed.
10. At the same time, the Labour Court has granted
reinstatement without back wages considering the fact that
when workman was out of job for such a long period, he must
have been working somewhere else for the regular expenses of
his family and there was a delay in award because of first
rejection and restoration and therefore, there is no case for
granting back-wages to the workman. Hence, petition filed by
the workman being Special Civil Application No.14095 of 2019
also stands dismissed.
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11. In view of the dismissal of Special Civil Application
No.19430 of 2018, interim relief earlier granted by this Court
stands vacated. The Nagarpalika is hereby directed to
implement the award passed by the Labour Court reinstating
the workman on his original post, within a period of two
weeks from the date of receipt of writ of this order.
Disposed of accordingly. No order as to costs.
(RAJENDRA M. SAREEN,J)
DRASHTI K. SHUKLA
