Rajasthan High Court

Raj State Bridge Const Corp Ltd vs Mahendra Singh on 28 July, 2021

Bench: Inderjeet Singh

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 3887/2016

Rajasthan State Bridge Construction Corporation Ltd. (now
named as Rajasthan State Road Development Construction
Corporation Ltd. For short RSRDC Ltd.), Jhalana Doongri, Jaipur.


                                                                  ----Petitioner
                                   Versus
Mahendra Singh S/o Shri Bheem Singh, Driver Vehicle, House
No.1C, Nirman Nagar, Janpath Road, Jaipur Through Shri Kunal
Rawat and Haroon Khan, Jaipur.
                                                                ----Respondent

Connected With S.B. Civil Writ Petition No. 4017/2016 Mahendra Singh S/o Shri Bheem Singh, aged about 47 years Driver Vehicle, House No.1C, Nirman Nagar, Janpath Road, Jaipur Through Shri Kunal Rawat and Haroon Khan, Jaipur.

----Petitioner Versus Rajasthan State Bridge Construction Corporation Ltd., Jhalana Doongri, Jaipur. (A public Section undertaking of the State of Raj.)

----Respondent

For Petitioner(s) : Mr. V.P. Mathur Mr. Kunal Rawat Raja Ram For Respondent(s) : Mr. V.P. Mathur

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

28/07/2021

1. Since in both these writ petitions the same award passed by

the Labour Court dated 16.11.2015 is under challenge, hence

these writ petitions have been heard together and are being

decided by the present order.

(2 of 8) [CW-3887/2016]

2. The Labour Court in the present matter vide Award dated

16.11.2015 has held the alleged termination as null and void,

however, directed for payment of compensation to the tune of

Rs.5 Lakh in lieu of reinstatement.

3. S.B. Civil Writ Petition No.3887/2016 has been filed by

Rajasthan State Bridge Construction Corporation Ltd. (hereinafter

to be referred as "employer") with the prayer to quash and set

aside the award dated 16.11.2015 passed by the Labour Court

whereas S.B. Civil Writ Petition No.4017/2016 has been filed by

Mahendra Singh (hereinafter to be referred as workman)

challenging the award dated 16.11.2015 passed by the Labour

Court with the prayer to modify the award and direct the

respondents for reinstatement instead of compensation.

4. Brief facts as emerge from the record are that statement of

claim was filed by the workman before the Labour Court with the

averments that he was engaged/appointed by the employer on the

post of Driver in January, 1991 and he worked upto 19.01.2001

and he was orally removed from service by the employer on

20.01.2001. It was also averred that prior to oral termination of

the workman neither any notice/charge-sheet was served to him

nor any inquiry was held and therefore, there is violation of

principles of natural justice. It was also stated that the employer

has violated the provisions of Section 25F of the Industrial

Disputes Act, 1947 while taking action of removal of the workman

from service. It was also stated that the workman has a right of

being regularized in service as the other persons have been

regularized and he has been ousted from service. It was also

stated that he had continuously worked for more than 240 days in

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a calendar year and prayed that while declaring his oral

termination as null and void, the employer be directed to reinstate

him in service with all consequential benefits from the date of

termination i.e. 20.01.2001.

5. Reply was filed on behalf of the employer and while denying

the averments made in the statement of claim, it was stated that

the workman was never engaged/appointed by the employer in

service, as such there is no question of regularization of his

service. It was also stated that all the appointments are made by

the employer after following the due procedure under the law and

no appointment was offered by the employer to the workman. It

was further stated that the workman was neither engaged by the

employer nor he had worked for continuous 240 days in a

calendar year and all the averments made by the workman were

denied by the employer in toto.

6. The workman in support of his claim produced affidavit of

himself and submitted documents Ex.W-1 to Ex.W-7 and from the

side of the employer affidavits of AC Mathur, Devendra Kumar

Ajwani were produced and both the parties also cross-examined

the affidavits and witness.

7. The Labour Court after considering the material and the

evidence on record, vide award dated 16.11.2015 held the

termination of the workman from 20.01.2001 to be null and void,

however in lieu of reinstatement directed for payment of

compensation to the tune of Rs.5 Lakh. Aggrieved by the award

dated 16.11.2015, the workman as well as the employer both

have filed the writ petitions of which reference has been made

above.

(4 of 8) [CW-3887/2016]

8. Counsel for the employer submitted that the workman has

never been their employee and therefore the finding recorded by

the Labour Court is perverse. Counsel further submits that the

Labour Court has committed serious illegality in holding that the

workman had completed continuous 240 days in a calendar year

prior to his termination from service by the employer. Counsel

further submits that even the compensation as awarded by the

Labour Court is not legally justified and lastly prayed for quashing

of the award dated 16.11.2015 passed by the Labour Court.

9. In support of his contentions, counsel for the employer relied

upon the judgment passed by the Hon'ble Supreme Court in the

matter of Krishna Bhagya Jal Nigam Ltd. Vs. Mohd. Rafi, reported

in (2006) 9 SCC 697, where in paras-8 & 9 it has been held as

under :-

8. In Manager, Reserve Bank of India Vs. S. Mani a three-judge Bench of this Court again considered the matter and held that the initial burden of proof was on the workman to show that he had completed 240 days of service. The Tribunal's view that the burden was on the employer was held to be erroneous. In Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh it was held as follows: (SCC pp. 484-85, para 13) "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.T. Hadimani the onus is on the workman."

"The position was examined in detail in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh and the view expressed in Range Forest Officer, Siri Niwas, M.P. Electricity Board cases was reiterated."

9. In R.M. Yellatti v. Asstt. Executive Engineer the decisions referred to above were noted and it was held as follows: (SCC p. 116, para 17) "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

(5 of 8) [CW-3887/2016]

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 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. 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 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 Article 226 of the Constitution will not interefere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case.

The above position was again reiterated in ONGC Ltd. v. Shyamal Chandra Bhowmik and Chief Engineer, Ranjit Sagar Dam vs. Sham Lal.

10. Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Haryana State F.C.C.W.

Store Ltd. Vs. Ram Niwas and another, reported in (2002) 5 SCC

654, where in para No.15 it has been held as under :-

"In such a case the question of complying with the conditions precedent to retrenchment of a workman provided in Section 25-F of the Act will not arise. In the present case, the Labour Court relying on the oral and documentary

(6 of 8) [CW-3887/2016]

evidence cited on behalf of the management, particularly the order of the Managing Director sanctioning the engagement of the workmen concerned, held that the engagement/ appointment of the workmen concerned was for a specific purpose and for a particular period and since the purpose had expired, their disengagement was in terms of the contract of service, and therefore, not a "retrenchment" within the meaning of Section 2(00) of the Act. The High Court has not recorded a finding that there was no contract of service between the management and the workmen concerned. In view of the evidence on record the High Court and indeed has not passed recorded any finding that there was no contract of service between the management and the workmen concerned. Since, there exists a contract of service with the terms and conditions as noted earlier the position in inescapable that the case of disengagement/ termination of the workmen concerned did not amount to retrenchment. In particular facts and circumstances of the case the Labour Court rightly came to the conclusion that the workmen were entitled to no relief in the case. The High Court was clearly in error in interfering with the award passed by the Labour Court. Accordingly, the appeals are allowed. The judgments of the High Court in CWPs Nos. 9471 and 9472 of 1999 dated 22.09.2000, allowing the writ petitions filed by the respondent workmen are set aside and the award of the Tribunal is restored. There will, however, be no order for costs."

11. Counsel appearing on behalf of the workman submitted that

the workman has duly proved his case that he was appointed in

the service of the employer and the learned Labour Court after

considering the evidence submitted by the workman rightly came

to the conclusion that he was appointed by the employer in

serivce in January, 1991. Counsel further submits that the

workman has established before the learned Labour Court that he

has completed continuous 240 days in a calendar year prior to his

termination, which has been found proved by the learned Labour

Court and recorded finding of fact which is based on the cogent

(7 of 8) [CW-3887/2016]

evidence. Counsel further submits that once the learned Labour

Court found the claim of the workman proved and held the

termination of the workman as null and void, the learned Labour

Court instead of compensation should have ordered for

reinstatement of the workman in service instead of awarding

compensation and prayed that while directing reinstatement of the

workman in service award of the Labour Court be modified

accordingly.

12. Heard counsel for the parties and perused the record.

13. The Hon'ble Supreme Court in the matter of Bharat Sanchar

Nigam Limited Vs. Bhurumal, reported in (2014) 7 SCC 177 and in

the matter of Telecom District Manager & Ors. Vs. Keshab Deb,

reported in (2008) 8 SCC 402, has held that violation of Section

25F of the Industrial Disputes Act, 1947 does not automatically

entail in reinstatement with back wages.

14. In another judgment the Hon'ble Supreme Court in the

matter of Madhya Bharat Gramin Bank Vs. Panchamlal Yadav, Civil

Appeal No.9792 of 2010 decided on 13.07.2021, has held as

under:-

"Having considered the submissions made on behalf of the parties, we are of the view that the respondent is not entitled for reinstatement in view of the law settled by this Court. The judgments relied upon by Mr. Kapur are clear to the effect that violation of Section 25 F of the Industrial Disputes Act, 1947, would not automatically entail in the reinstatement with full back wages. The relief to be granted depends on the facts of individual cases.

In that facts and circumstances of this case, we are of the opinion that compensation of Rs.5. Lakhs is reasonable.

We direct the appellant-Bank to pay an amount of Rs.5 Lakhs to the respondent within a period of eight weeks from today. "

(8 of 8) [CW-3887/2016]

15. It is settled law as laid down by the Hon'ble Supreme Court

that it is for the workman to prove his case that he has completed

240 days in a calendar year prior to his termination by the

employer. In the present case, the workman has pleaded his case

before the learned Labour Court by leading evidence that he has

completed 240 days in a calendar year prior to his termination and

the Labour Court after considering the evidence on record found

proved the claim of the workman and recorded finding of fact in

favour of the workman of his completing 240 days in a calendar

year prior to his termination. I find no illegality being committed

by the Labour Court in passing of the award dated 16.11.2015.

16. So far as awarding of compensation of Rs.5 Lakh in lieu of

reinstatement is concerned, considering the facts and

circumstances of the present case and in view of the judgment

passed by the Hon'ble Supreme Court in the matters (supra), as

the reinstatement is not automatic, therefore I find no error in the

approach of the Labour Court in awarding compensation of Rs.5

Lakhs to the workman in lieu of reinstatement.