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Judgment
KIRTI SINGH, J. (ORAL)
The present writ petition has been filed under Article 226/227 of the Constitution of India seeking quashing of the impugned award dated 30.07.2015 (Annexure P-4) passed by respondent No.1, whereby the reference raised on behalf of the petitioner-workman was answered against him and his claim for reinstatement with continuity of service with full back wages was declined.
As per the pleaded facts, the petitioner-workman was engaged by respondent No.2-department for doing the work of plantation. However, his services were terminated by the respondent concerned on 31.05.2013 without any notice, pay or retrenchment compensation, despite the fact that he had worked for more than 240 days of service in the preceding year. Aggrieved, the petitioner served a demand notice upon the respondent Nos.2 and 3 under Section 2-A of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’), claiming therein that his services were terminated in violation of the relevant provisions of the Act of 1947. Conciliation proceedings having failed, the appropriate Government referred the industrial dispute for adjudication to Labour Court, Ambala, where it was registered as Reference No.16 of 2014, calling upon the learned Labour Court to determine the dispute in question.
The petitioner filed his claim statement, to which the respondents filed their replies raising preliminary objections as well as contesting the claim on merits.
Upon completion of pleadings of the parties, the learned Labour Court framed following issues:-
(1)Whether the termination of the services of workman is liable to be set aside being wrong, illegal, null and void etc. and the workman is entitled to reinstatement in service with full back wages and all the benefits including the continuity of service ? OPW
(2)Whether the claim statement is bad for mis-joinder and non-joinder of necessary parties ? OPM
(3)Whether the petitioner-workman has not come with clean hands and concealed the material facts from the court ? OPM
(4)Whether the claim statement is not maintainable in the present form ? OPM
(5)Relief.
Upon appreciation of the evidence available on record, the learned Industrial Tribunal, vide the impugned award dated 30.07.2015, answered the reference against the petitioner-workman. Aggrieved thereby, the petitioner has approached this Court by way of the present writ petition.
Learned counsel for the petitioner submits that the learned Industrial Tribunal has erred in dismissing the claim of the workman despite the evidence available on record establishing that he was engaged by respondent Nos.2 and 3 on daily wages on 01.01.1997 and the respondents concerned used to mark the attendance of the petitioner and other employees on blank papers. It is further submitted that the petitioner worked uptil 31.05.2013, and had completed more than 240 days of service during the preceding twelve calendar months, despite which his services were terminated without payment of notice pay or retrenchment compensation, thereby being in violation of the mandatory provisions of the Act of 1947. It is also submitted that respondents concerned also failed to produce record of the attendance and wages of the petitioner as well as the record of the seniority list of the daily wages despite an application submitted by the petitioner, for which an adverse inference ought to have been drawn. Therefore, it is prayed that the impugned award is patently illegal and deserves to be quashed.
Per contra, learned State counsel for respondents Nos.2 and 3 supports the impugned award. It is submitted that the petitioner was not appointed by the respondents concerned, but had worked under the Central Government Scheme of MGNREGA. The requisite amount of the petitioner for which he had worked was credited to his account. Learned State counsel accordingly contends that the findings recorded by the learned Industrial Tribunal are based upon due appreciation of the oral and documentary evidence available on record, are well reasoned, and call for no interference in exercise of the extraordinary writ jurisdiction of this Court.
I have heard learned counsel for the parties and perused the relevant material on 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 Vs. Dahyabhai Amarsinh, relevant paras whereof reads 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.”
A perusal of the impugned award reveals that the learned Industrial Tribunal, after considering the oral as well as documentary evidence brought on record by both sides, accepted the stand of the respondents that the petitioner had been engaged only on daily-wage basis for carrying out plantation work under the MGNREGA scheme. The Tribunal also noticed that such engagement was seasonal in nature and was not pursuant to any advertisement, regular selection process or appointment against any sanctioned post. It was further noticed that the petitioner was paid for the work actually performed under the scheme and that the requisite amount had been credited to his account. The nature and manner of the petitioner's engagement, therefore, was specifically considered by the learned Tribunal while adjudicating his claim.
The petitioner's principal contention before this Court is that, notwithstanding the nature of his engagement, he had worked for more than 240 days during the twelve months preceding 31.05.2013 and, consequently, the termination of his services without notice or retrenchment compensation was in violation of Section 25-F of the Act of 1947. The said contention, however, cannot be accepted merely on the basis of the assertion made by the petitioner. The initial burden was upon him to establish the factual foundation for invoking Section 25-F, including that he had actually worked for the requisite period during the twelve months immediately preceding the alleged termination. The learned Industrial Tribunal, on appreciation of the evidence, specifically found that the petitioner had failed to discharge this burden. No contemporaneous material has been brought to the notice of this Court which would demonstrate that the petitioner had actually worked for 240 days with the respondents during the relevant period. His assertion regarding the length of his engagement, by itself, cannot substitute proof of the statutory requirement. The fact that he may have worked on different occasions under the MGNREGA scheme also cannot, without proof of the requisite number of days during the relevant period, establish continuous service for the purposes of Section 25-B of the Act of 1947.
The plea regarding non-production of the attendance, wage and other departmental records also does not alter the position. The petitioner sought to draw an adverse inference against the respondents on the ground that the relevant records had not been produced. However, such inference cannot be drawn as a matter of course. It has to be shown that the particular records existed, were relevant to the issue in controversy and, if produced, would have a bearing upon the fact sought to be established. In the present case, the learned Industrial Tribunal considered the material available before it and found that the petitioner had failed to establish the requisite 240 days' service. The petitioner has not been able to show before this Court that the said finding is rendered erroneous merely on account of non-production of the records. The same is true of the petitioner's reliance upon Sections 25-G and 25-H of the Act of 1947. No material has been pointed out to establish that the principle of “last come, first go” was violated or that any person junior to the petitioner was retained while his services were discontinued. Likewise, there is no material demonstrating any subsequent appointment in circumstances attracting Section 25-H. These provisions, therefore, do not furnish an independent ground for interference with the impugned award.
It is, thus, not a case where the learned Industrial Tribunal declined the claim despite the petitioner having established the necessary conditions for protection under Section 25-F. Rather, the Tribunal, upon appreciation of the evidence, found that the petitioner had failed to establish the requisite 240 days' service in the twelve months preceding 31.05.2013. Once this foundational requirement remained unproved, the allegation of non-compliance with the procedural requirements of Section 25-F could not, by itself, result in the petitioner's claim being accepted. The challenge to the award, therefore, essentially seeks a re-appreciation of the evidence and substitution of the view taken by the learned Industrial Tribunal with another possible view.
The findings recorded by the learned Industrial Tribunal are findings of fact based upon appreciation of the evidence led by the parties. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, this Court does not sit as a Court of appeal over such findings. Interference is warranted only where the findings are shown to be perverse, based on no evidence, contrary to the material on record, or suffer from patent illegality or jurisdictional error. No such infirmity has been shown in the present case. The petitioner has also not been able to point out any material evidence which was ignored by the learned Industrial Tribunal or any conclusion which could not reasonably have been reached on the evidence available before it.
Consequently, this Court finds no ground to interfere with the well-reasoned award dated 30.07.2015 passed by the learned Industrial Tribunal. The present writ petition, being devoid of merit, is accordingly dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.