Madhya Pradesh High Court
Savitri Bai vs Commissioner M.P. Housing And ... on 27 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:2841
1 MP-302-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 27th OF JANUARY, 2025
MISC. PETITION No. 302 of 2020
SAVITRI BAI
Versus
COMMISSIONER M.P. HOUSING AND DEVELOPMENT BOARD AND
OTHERS
Appearance:
Shri Ravi Jain - Advocate for petitioner Through Video Conferencing.
Shri Parth Dixit- Advocate for the respondents.
WITH
MISC. PETITION No. 1080 of 2020
COMMISSIONER M.P. HOUSINGH AND INFASTRUCTURE BOARD
AND OTHERS
Versus
SAVITRI BAI
Appearance:
Shri Rajendra Bhargava-Advocate for the petitioners.
ORDER
M.P. No. 1080/2020 has been filed by the petitioners-Housing Board
seeking following reliefs:-
"(i) That, the present petition filed by the petitioner may kindly be
allowed.
(ii) That, award dated 11.09.2019 (Annexure P/1) may kindly be
set-aside.
(iii) That any other suitable relief, which this Hon'ble Court deems
fit in the circumstances of the case, may also kindly be granted to
the petitioner."
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M.P. No. 302/2020 has been filed by the employee seeking following
reliefs:-
"(i) That, the impugned award Annexure P/1 dated 28.06.2019 by
which the respondents are directed to pay Rs.2,00,000/- to the
petitioner may kindly be directed to be modified and respondents
may kindly be directed to reinstate the petitioner along with
backwages and all other consequential benefits.
(ii) That, the respondent may kindly be directed to pay the cost of
the case before learned Labour Court as well as before this Corut.
(iii) Thay any other relief which this Hon'ble Court may deem fit
and proper in the circumstances of the case may also kindly be
granted.
(iv) The record of Labour Court No.1 Gwalior in case
No.43/A/I.D. Act/2017 (R) may kindly be called and perused. "
2. Facts of the case in short are as under: The employee approached
the labour Commissioner, State of M.P. under Section 10(1) of I.D. Act
raising a dispute. M.P. Housing Board filed a reply and thereafter
conciliation ended into failure and vide order dated 31.08.2017 the labour
Commissioner referred the industrial dispute to the labour Court for
adjudication. The terms of reference is reproduced below:-
या सेवािनयु ीमती स व ी बाई मौय पित ी रामभरोसी का िनयोजक
ारा कया गया सेवापृथककरण वैध एवं उिचत है ? य द नह तो आवेदक कस
सहायता का प है एवं इस संबंध म सेवा िनयोजक को या िनदश दये जाने
चा हये?
3. After the aforesaid reference, the labour Court registered the case
and issued notice to the parties for filing statement of claims. The employee
filed the statement of claim by submitting that she was engaged as Peon in
the year 2000 in M.P. Housing Board, where she worked with full
satisfaction of the petitioner. All of a sudden, vide oral order, her services
were terminated on 01.112016. Thus, alleging that since she had worked for
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240 days in one calendar year therefore, her services could not have been
retrenched without payment of compensation, hence, she is entitled for relief
of reinstatement into the service with full back wages, a claim was raised.
The M.P. Housing Board filed reply denying the employer-employee
relationship. The M.P. Housing Board has specifically denied the
appointment and termination of the petitioner and also denied her 240 days
continues working in the preceding year. After appreciating the evidence, the
learned Labour Court has recorded the finding that termination of the
employee from 01.11.2016 is not illegal and was proper. The respondent was
engaged with the M.P. Housing Board through an outsourcing agency but
M.P. Housing Board was directed to pay Rs. 2,00,000/- to the employee in
lieu of reinstatement and arrears of salary. Being aggrieved by the aforesaid
award, both the employee and M.P. Housing Board have filed the present
petitions before this Court.
4. Learned counsel for the M.P. Housing Board submits that the
employee has utterly failed to prove that she was engaged by the M.P.
Housing Board and had worked for 240 days in one calendar year before
termination. She did not file any documentary evidence in respect of
appointment and termination. She had not filed any documents in respect of
payment of wages. The employee in her statement herself has admitted that
she was employee of a contrator, therefore, she is not able to produce
appointment letter, termination letter and pay slip etc. The contractor was her
employer, who had employed and terminated her and she has suppressed this
material fact. Without any evidence, the labour Court has wrongly directed
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4 MP-302-2020
M.P. Housing Board to pay Rs. 2,00,000/- to her in lieu of reinstatement and
arrears of salary. The findings are perverse and based on no evidence, hence,
the impugned award is liable to be set aside.
5. Learned counsel for the employee has submitted that the learned
labour court has directed the M.P. Housing Board to pay Rs. 2,00,000/- in
lieu of reinstatement vide award dated 28.06.2019 while the petitioner has
proved her case before the learned labour court and it was proved that the
oral termination of service of the petitioner falls under the definition of
illegal retrenchment therefore, in the light of the law laid down by this
Hon'ble Court as well as Hon'ble Apex Court in the catena of judgmentss,
the petitioner is eligible for reinstatement alongwith back wages and all other
consequential benefits. Therefore, the impugned award deserves to be
modified accordingly.
6. Heard the learned counsel for the parties and perused the record.
7. The respondent raised an industrial dispute that she was engaged by
M.P. Housing Board as a peon in the year 2000. She entered into the witness
box and she was cross-examined by the opponent. In para 13 of her
statement, she admitted that she is working under a contractor in the office of
Housing Board and salary is being given to her by the contractor. It is clear
from the face of the evidence that the employee was engaged by the
contractor in the office of Housing Board and except her oral evidence
nothing has been produced by her to show that she was ever in employment
of M.P. Housing Board. The learned labour Court in the impugned award has
held that the employee was engaged in the office of Housing Board through
NEUTRAL CITATION NO. 2025:MPHC-GWL:2841
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a contractor and further there is nothing on record to substantiate that the
respondent worked for 240 days in a one calendar year though the burden lay
on respondent/workmen to prove that she had worked for 240 days in a
calender year, therefore, this is the case of no evidence and since the
employee has utterly failed to prove that she had worked for 240 days in the
preceding year, thus, in absence of proof of continuous working of 240 days,
she can not claim the benefit of 25(F), therefore, she is not entitled for
reinstatement into the service along with back-wages.
8. This Court in case of Zonal Manager, UCO Bank Vs. General
Secretary, reported in 2017(4) MPLJ 104 has set aside the award of the
labour Court whereby directions for reinstatement with full back-wages was
issued, only on the ground that the burden was on the respondent workmen
to establish that he has been working for more than 240 days before his
retrenchment/termination. Relevant portion of the judgement is reproduced
below:
"9. Trite it is that the burden of proof is on the workman and not
on employer to prove that workman had worked for 240 days or
more in year immediately preceding retrenchment.
10. In R.M. Yellatti vs Assistant Executive Engineer AIR 2006 SC
355, it is held :
"17. 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 under Section 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 workmen 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
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6 MP-302-2020
muster roll for the given period, the letter of appointment or
termination, if any, the wage register, the attendance 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 workmen will not be the ground for the tribunal to
draw an adverse inference against the management. Lastly, the
above judgments lay down basic principle, namely, that the High
Court under Article 226 of the Constitution will not 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.
11. In Range Forest Officer vs S.T. Hadimani AIR 2002 SC 1147,
it is held that :
"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."
12. In M/s Essen Deinki v. Rajiv Kumar AIR 2003 SC 38, it is
held that:-
"16. The proof of working for 240 days is stated to be on the
employee in the event of any denial of such a factum ..".
13. In Surendranagar District Panchayat vs Dahyabhai Amarsinh
AIR 2006 SC 110, it is held :-
"19. In the light of the aforesaid, it was necessary for the workman
to produce the relevant material to prove that he has actually
worked with the employer for not less than 8 240 days during the
period twelve calendar months preceding the date of termination.
What we find is that apart from the oral evidence the workman has
not produced any evidence to prove the fact that he has worked for
240 days. No proof of receipt of salary or wages or any record or
order in that regard was produced; no co-worker was examined;
muster roll produced by the employer has not been contradicted. It
is improbable that workman who claimed to have worked with the
appellant for such a long period would not possess any
documentary evidence to prove nature of his engagement and the
period of work he had undertaken with his employer. Therefore,
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we are of the opinion that the workman has failed to discharge his
burden that he was in employment for 240 days during the
preceding 12 months of the date of termination of his service. The
Courts below have wrongly drawn an adverse inference for non
production of the record of the workman for ten years. The scope
of enquiry before the Labour Court was confined to only 12
months preceding the date of termination to decide the question of
continuation of service for the purpose of Section 25F of the
Industrial Disputes Act. The workman has never contended that he
was regularly employed in the Panchayat for one year to claim the
uninterrupted period of service as required under Section 25B(1)
of the Act. In the fact & situation and in the light of the law on the
subject, we find that the workmanrespondent is not entitled for the
protection or compliance of Section 25F of the Act before his
service was terminated by the employer. As regards non-
compliance of Sections 25G and 25H suffice is to say that Witness
Vinod Mishra examined by the appellant has stated that no
seniority list was maintained by the department of daily wagers. In
the absence of regular employment of the workman, the appellant
was not expected to maintain seniority list of the employees
engaged on daily wages and in the absence of any proof by the
respondent regarding existence of the seniority list and his so
called seniority no relief could be given to him for non-
compliance of provisions of the Act. The courts could have drawn
adverse inference against the appellant only when seniority list
was proved to be in existence and then not produced before the
court. In order to entitle the court to draw inference unfavourable
to the party, the court must be satisfied that evidence is in
existence and could have be proved."
14. In the case at hand, as it was a specific stand of the petitioner-
management that the respondent-workman was never appointed
against any post and has not continuously served the Bank upto
27.7.2002, burden was on the respondent-workman to have
established that he had worked for more than 240 days in a year
before his retrenchment/termination. However, having failed to
establish, the CGIT fell into patent error in construing that the
workman had worked for more than 240 days by drawing adverse
inference.
15. In view whereof, the impugned Award cannot be given the
stamp of approval as the working having not proved of working
continuously for more than 240 days in 12 months preceding his
alleged termination, provisions of Section 25F of 1947 Act are not
attracted.
16.Consequently, impugned Award dated 12.5.2016 is set aside."
10. Since when labour court itself had held that the employee was
engaged through contractor, there existed no relationship of employer-
employee between the employee and M.P. Housing Board, and no question
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of making any payment by Housing Board arises.
11. In view of the above, the impugned award dated 28.06.2019 is set
aside. Resultantly, M.P. No.1080/2020 is allowed and M.P. No. 302/2020 is
dismissed. No order as to cost.
(MILIND RAMESH PHADKE)
JUDGE
ojha
