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Judgment
KIRTI SINGH, J.(ORAL)
This order shall dispose of CWP No. 2097 of 2007 and connected CWP No. 2370 of 2007, as both petitions arise out of a common Award dated 05.06.2006 (Annexure P-3 in CWP No. 2097 of 2007 and Annexure P-4 in CWP No. 2370 of 2007) passed by the Presiding Officer, Labour Court, Gurdaspur, in three consolidated references: Reference No. 284 of 1997 (Badri Parsad), Reference No. 287 of 1997 (Joginder Singh) and Reference No. 288 of 1997 (Subash Chander), titled “Badri Parsad and others v. Sugar Mills, Batala”. Since Reference No. 287 of 1997 concerning Joginder Singh is not the subject-matter of either of the present petitions, this
order is confined to the cases of the petitioners herein. Both petitions have been filed under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari or any other appropriate writ, order or direction quashing the common Award and for grant of consequential reliefs.
The pleaded case of the petitioner in CWP No. 2097 of 2007, is that he was engaged as Helper/Peon with respondent No.2-Gurdaspur Cooperative Sugar Mills Limited, Gurdaspur (“the Mill”), on daily wages basis with effect from January, 1989. The petitioner continued to work for respondent No.2 till 31.05.1996, when after his services terminated, without any show-cause notice, charge-sheet, enquiry or payment of retrenchment compensation. Aggrieved by the termination, the petitioner raised an industrial dispute by issuing a demand notice, claiming reinstatement with continuity of service and full back-wages. On failure of conciliation, the appropriate Government referred the dispute for adjudication to the Labour Court, Gurdaspur, where it was registered as Reference No. 284 of 1997.
Similarly, the facts, as pleaded in CWP No. 2370 of 2007, are that the petitioner therein, was engaged as Helper/Mali in the Horticulture Department of the Mill on daily wages basis with effect from August, 1986, where he continuously dispensed his services till the same were terminated on 21.02.1995 without notice, charge-sheet, enquiry or retrenchment compensation. He raised a demand notice dated 31.03.1997, and on failure of conciliation, the dispute was referred to the Labour Court, Gurdaspur, and registered as Reference No. 288 of 1997.
The two references discussed hereinabove, along with the case of a similarly situated employee (Joginder Singh), being founded on a common cause and pleaded on similar lines, came to be consolidated by the
Labour Court vide order dated 28.09.2000. The common issues framed by the Labour Court on the pleadings of the parties were: (i) whether termination of services of the workmen is justified and in order; and (ii) relief.
By the common Award dated 05.06.2006, the Presiding Officer, Labour Court, Gurdaspur, held that it was for the workmen to prove that they had worked for 240 days continuously in the preceding twelve calendar months, which onus they had failed to discharge. Issue No.1 was accordingly held against the workmen, and Issue No.2 (Relief) was answered against them as well, all three references being disposed of against the workmen.
Learned counsel for the petitioners submits that the finding of the Labour Court is perverse and against the weight of evidence on record. It is submitted that the Provident Fund contributions of the petitioners, deducted continuously since 1990 and till the year of termination in each case, clearly established that the petitioners had worked continuously with the Mill for several years. It is further contended that the management deliberately and willfully withheld the attendance and payment record specifically summoned by the petitioners, and an adverse inference ought to have been drawn against the management for such non-production. Moreover, persons junior to the petitioners were retained in service in violation of Sections 25-G and 25-H of the Industrial Disputes Act, 1947, and that the termination, having been effected without notice, charge-sheet, enquiry or retrenchment compensation, was in contravention of Section 25-F of the Act. It is accordingly contended that the impugned Award is liable to be set aside.
Per contra, learned Senior counsel appearing for respondent No.2-Mill supports the impugned Award. It is submitted that the admitted case of the petitioners themselves is that they were engaged on daily wages, and a daily-wage worker holds no right to the post. Moreover, the respondent-Mill, being a seasonal Cooperative Sugar Mill, runs only during the crushing season from November to March, and the petitioners were accordingly engaged only as and when work was available. Learned Senior counsel submits that mere deduction of Provident Fund contribution does not establish that the workmen actually worked for 240 days in the twelve calendar months preceding termination, the burden of proving which lay upon the workmen, and which they failed to discharge. It is further submitted that the finding recorded by the Labour Court is a pure finding of fact, arrived at upon due appreciation of the oral and documentary evidence on record, including the admission of the workmen’s own witness that they were contractual workers, and does not call for interference by this Court in exercise of its supervisory jurisdiction.
I have heard learned counsel for the parties and perused the record.
Before proceeding further, a gainful reference can be made to the proposition of law as discussed by the Hon’ble Supreme Court in Civil Appeal No.6511 of 2005 titled as Surendranagar District Panchayat v. Dahyabhai Amarsinh, relevant paragraphs whereof read thus:-
"8.As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act). Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary retirement of a workman; ii) retirement of a
workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of nonrenewal of the contract of employment; or iv) termination of the service on the ground of continued ill-health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act. The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely:-i) One month’s clear notice in writing indicating the reasons for retrenchment or that the workman has been paid wages for the period of notice in lieu of such notice; ii) payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part thereof, in excess of six months; iii) a notice to the appropriate Government in the prescribed manner.
9.To attract the provisions of Section 25F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A “Lay-off and Retrenchment”. The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorised leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workman shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Subsection (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of sub-section (2). By the legal fiction of sub-section 2(a) (i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workman has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.
16.In Mohan Lal v. Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225, it is said by this Court that before a workman can claim retrenchment not being in consonance of Section 25F of the Industrial Disputes Act, he has to show that he has been in continuous service of not less than one year with the employer who had retrenched him from service.
17.In Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 - (At Page 26, Para 3), this Court held that “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.”
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 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 coworker 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, 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 and situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards noncompliance 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 been proved."
Reverting to the case in hand, the controversy before the Labour Court in the case of the petitioners centered on the singular issue: whether the workmen concerned had rendered 240 days of continuous service in the twelve calendar months preceding the date of termination of their respective services, so as to entitle them to the protection of Section 25-F of the Industrial Disputes Act, 1947. Unless the said threshold was established, the
further question of compliance with Sections 25-F, 25-G and 25-H of the Act would not arise.
Tested on the aforesaid parameters, this Court finds no infirmity in the approach adopted by the Labour Court. In the present case, the workmen’s own witness, Makhan Singh (WW-1), deposed that the concerned workmen were contractual, and not daily-wage, workers, while their other witness, Baldev Singh (WW-2) of the Regional Provident Fund Office, candidly admitted that he possessed no knowledge whatsoever of the actual working days of the workmen. In these circumstances, the Labour Court cannot be said to have erred in holding that the workmen had failed to discharge the onus placed upon them to prove 240 days’ continuous service, more particularly when the admitted nature of their engagement was on daily wages with a seasonal Cooperative Sugar Mill that operates only during the crushing season each year.
Insofar as the plea regarding non-production of the attendance record summoned from the management is concerned, the same, even if accepted, would not, by itself, discharge the burden that lay upon the workmen to affirmatively establish 240 days of continuous service, particularly when their own witness has deposed to a version inconsistent with their pleaded case, as was rightly concluded by the Labour Court. In view thereof, the claim of the petitioners with respect to retention of junior persons in violation of Sections 25-G and 25-H of the Act was also unsustainable.
The findings so recorded by the Labour Court are, therefore, pure findings of fact, based upon a due and proper appreciation of the oral and documentary evidence on record, and cannot be said to suffer from
perversity or any manifest legal infirmity. Merely because another view may possibly have been taken on the same set of evidence would not justify interference by this Court in exercise of its writ jurisdiction.
It is trite that while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, this Court does not sit as a Court of appeal over findings of fact recorded by the Labour Court. The scope of judicial review is confined to examining whether the impugned Award suffers from perversity, patent illegality, jurisdictional error, or is based on no evidence. Re-appreciation of evidence lies outside the ambit of the supervisory jurisdiction of this Court. Learned counsel for the petitioners has not been able to demonstrate that the findings recorded by the Labour Court suffer from any such infirmity. The impugned Award reflects a due and proper appreciation of the pleadings, the evidence adduced by the parties and the settled legal principles governing the controversy. No ground, therefore, is made out to warrant interference.
Consequently, finding no merit in either of the present writ petitions, the same are dismissed. Pending application(s), if any, also stand disposed of.