Bhurva Ram vs Presiding Officer and Another

Manindra Mohan Shrivastava, J.—Heard.

By this petition under Article 226 of the Constitution of India, the petitioner has assailed the legality and validity of award dated 25-6-2008 (Annexure P-1) by which petitioner''s claim has been rejected holding that petitioner is not entitled to be reinstated in service. Relevant facts of the case are in narrow encompass. The petitioner was appointed as Chowkidar under second respondent. His services were terminated in the year 2000 without any prior notice or opportunity of hearing. No departmental enquiry was conducted before passing the order of termination. For quite some time, the petitioner kept on representing the authority and it is the case of the petitioner that firm assurance was held out that later on he will be absorbed in services, but that assurance was never converted into positive action. Grievance was, therefore, raised by the petitioner before the Labour Officer in the year 2007. Failure of conciliation and existence of dispute was reported to the Govt., resulting in reference of dispute to the Labour Court for adjudication under the provision of Industrial Disputes Act, 1947.

The petitioner submitted his statement of claim which was replied by respondent No. 2. Both the parties, led oral and documentary evidence. Vide impugned award, the Labour Court rejected claim of the petitioner on the premises that the petitioner has failed to prove that he had worked for 240 days in one calendar year and further that the petitioner has failed to explain delay of 8 years in submitting his claim.

Submission of learned counsel for the petitioner is that the Labour Court could not have dismissed the claim of the petitioner on the ground of delay. According to him, once the dispute is referred to the Labour Court, it is obliged under the law to answer the reference. Learned counsel for the petitioner submitted that terms of reference did not include any issue as to whether the claim was liable to be dismissed on the ground of delay. Therefore, the Labour Court could not have dismissed the claim on the ground of delay. In support of his contention, learned counsel for the petitioner relied upon the judgment of the Supreme Court in the Case of Kuldeep Singh v. General Manager, Instrument Design Development and Facilities Centre and another (2006) 1 SCC 106.

The second limb of contention of learned counsel for the petitioner-workman is that the petitioner laid convincing and un-controverted oral evidence supported by various documentary evidence to prove that he had worked for 240 days during the relevant period fulfilling requirement of continuous service as defined in Industrial Disputes Act, 1947. The approach of the Labour Court is not legal and proper in ignoring the evidence and recording perverse finding. In support of this submission, reliance has been placed in the case of R.M. Yellatti v. Asstt. Executive Engineer (2010) 14 SCC 176.

On the other hand, learned counsel for the State-respondent submitted that the petitioner did not approach the Labour Court well in time but he sat over the matter for years together. The delay on the part of the petitioner fully justified dismissal of claim of the petitioner on the ground of delay also, though the Labour Court has also gone into the merits of the case. Learned counsel for the State submitted that the petitioner came out with oral evidence, which was not found reliable by the Labour Court in the absence of clinching evidence, particularly any documentary evidence to show continuous employment of the petitioner. Therefore, no jurisdictional illegality has been committed by the Labour Court in rejecting the claim of the petitioner. Therefore, the petition is liable to be dismissed.

Learned Labour Court after having recorded the submission of both the parties, perfunctorily referred to the evidence of both the parties in few lines in para-5 of its order, by recording that upon perusal of evidence and documents, it is found that the petitioner has failed to prove that he worked for 240 days in one year. Immediately after this, it also observed that the petitioner has failed to show sufficient cause for submitting his claim after 8 years.

The Labour Court not at all taken pains to go through the evidence of parties and various documents submitted by the petitioner, much less exercise of marshalling the oral and documentary evidence. The findings have been recorded without discussion of oral and documentary evidence on record. It has been merely recorded that upon perusal of oral and documentary evidence, the petitioner has failed to prove its case. If I may say so, learned Labour Court has completely abdicated its judicial function by jumping to the conclusion. It being a Court of law was obliged to deal with the specific oral evidence led by the petitioner supported by documentary evidence. It appears that the learned Labour Court was swayed by the reason that the petitioner has approached Labour Court after 8 years. Therefore, the delay, it seems, is the main operative reason for dismissal of the claim of the petitioner, on account of which, the Labour Court did not think it proper to deal with the merits of the case by marshalling oral and documentary evidence on the basis of pleadings of the respective parties.

There is considerable force in the submission of learned counsel for the petitioner that the claim could not be dismissed on the ground of delay. Labour Court is required to answer the reference made to it. This aspect was dealt with by the Supreme Court in the case of Kuldeep Singh (supra) in following words :

In view of the above, law can be summarised that there is no prescribed time-limit for the appropriate Government to exercise its powers u/s 10 of the Act, It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate Government "at any time" refer the dispute to a board or court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute u/s 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference.

Therefore, the approach of the Labour Court is not correct in law. This has resulted in illegality in exercise of jurisdiction. Therefore, the jurisdictional error is manifest.

The Tribunal has not even considered the evidence oral and documentary on record. No reason whatever has been assigned as to why oral or documentary evidence was disbelieved. In fact there is no discussion on this aspect and in three lines, Labour Court has merely recorded that petitioner failed to prove that he worked for 240 days in one year. I have gone through the oral and documentary evidence led by the petitioner. The petitioner in his examination in chief has clearly deposed that he was working as Chowkidar in the nursery w.e.f. 1-1-1990, He has stated that duty which was performed by him. He also sated that his presence was recorded in the muster roll and he used to work in 26 day, 30 days and 31 days in a month and in a year, he worked for more than 300 days for which he used to get Rs. 1823/- per month. He emphatically stated that he worked continuously from 1-10-1990 till 22-2-2000 as Chowkidar until he was terminated. He also produced various documents which included recording of petitioner''s name in the list prepared pursuant to resolution of Council of Minister, certificate of experience etc. The oral evidence was supported by a coworker, Jagelal, who has been examined as witness No. 2. The witness of respondent was also examined and he admitted in para-3 of his cross-examination that muster roll was not brought by him and stated that muster roll is not available. No document showing destruction of muster roll was produced. The documentary evidence i.e. Ex. P-2 C, Ex.P-3 C and Ex.P-4 C are relevant to prove fact regarding engagement of the petitioner. Originals also placed on record as Annexure P-3 & P-4. It is, therefor, seen that the Labour Court swayed by the delay aspect of the matter did not at all examine the oral and documentary evidence on record, to record finding of fact as to whether the petitioner succeeded in proving that he worked for 240 days in a month so as to establish requirement of continuous service as denied under the Industrial Disputes Act.

In the case of R.M. Yellatti (supra), the Supreme Court had an occasion to examine similar issue. After referring to its various decisions, and the facts of the case, the Supreme Court observed that the Management was duty bound to produce before the Labour Court, the nominal muster roll for the relevant period, even though initial burden rested on the worker. In the present case also, the oral and documentary evidence which have been led by the workman show that the workman could produce all that which was in his possession i.e. certificate of experience and resolution containing the name of the petitioner. Moreover, the petitioner led oral evidence giving specific detail of the period for which he worked, the place where he worked and nature of duty performed by him. Not only this, another co-worker has also deposed in support of the case of the petitioner. Therefore, in such circumstances, the duty of the Labour Court was to summon muster roll and if no muster roll is made available, then to examine and analyse the oral and documentary evidence led by the parties in order to find out the requirement of condition of service of 240 days in terms of provision contained in the Industrial Disputes Act. This having not been done, in the considered opinion of this Court, Labour Court has committed serious illegality and irregularity in exercise of its jurisdiction, apart from and in addition to recording perverse finding without examination of evidence, swayed by delay in presentation of case before the Labour Court, ignoring the legal position that delay cannot be a ground to reject the claim.

Therefore, the impugned award cannot be sustained in law and is, therefore, set aside. The matter is remanded to the Labour Court to determine the issue of fact involved in the case after properly analyzing evidence oral and documentary on record with respect to pleadings of the parties and observation made by this Court. Looking to the fact that the matter has remained pending for such a long period, the Labour Court is directed to conclude the matter within a period of 4 months, in accordance with law, from the date of appearance of both the parties before it. Petition is accordingly allowed. No order as to costs.