Chandan Singh vs Superintending Engineer And Others

Sharad Kumar Sharma, J

The petitioner is a workman. His case is that, while seeking a reference of a dispute by invoking Section 4K of the U.P. Industrial Disputes Act of 1947, he has contended that he has been employed with the respondents as a daily wager with effect from 1st January 1979, and consequently, the act of respondent of dispensation of his services with effect from 13th April 1987, was absolutely unjustified and not tenable in the eyes of law since being an act without complying provisions of Section 6N of the U.P. Industrial Disputes Act, 1947. He further submits that the said dispensation of service w.e.f. 13th April 1987, since was without compliance of the provisions contained under Section 6N of the U.P. Industrial Disputes Act, 1947 as no mandatory prior notice of 30 days or salary in lieu thereof was given. Hence, the same deserves to be set aside and he also deserves to be reinstated into the services along with all the service benefits payable to him.

As against the so-called order of dispensation of services w.e.f. 30th April 1987, the petitioner-workman has sought a reference of dispute from the State, under Section 4K of the Act, and the State by the Government Order No. 1232/37 (CP)-9-99 dated 2nd March 2000, the dispute was referred for adjudication, which was later on registered as an Adjudication Case Number 121 of 2002, before the Presiding Officer, Labour Court, Haldwani, District Nainital. The reference, which was sought to be answered by the Labour Court in the aforesaid adjudication case, it was to the following effect:-

"क्या सेवायोजक पक्ष द्वारा श्रमिक श्री चन्दन सिंह पुत्र श्री जवाहर सिंह की सेवायें दिनांक 30.4.87 से समाप्त किया जाना उचित तथा/अथवा वैधानिक है? यदि नहींतो सम्बन्धित श्रमिक क्या हितलाभ्ज्ञ/अनुतोष पाने का अधिकारी है, तथा अन्य किस विवरण सहित?"

The adjudication proceedings proceeded and as a consequence thereto, the employer and the workman had filed their respective written statements, placing forward their respective contentions in support of their case and in contravention to it. The employer-respondents had filed their written statement. On behalf of the workman, the workman himself has appeared in the witness box as WW1, whereas on behalf of the employer one Mr. Amit Kumar had appeared in the witness box, who adduced his oral testimony and in the oral testimony, as well as in the written statement which has been filed it was pleaded by the respondent-employer that they have come up with the case that the reference which was sought to be answered by the labour Court was to the effect, that the services of the petitioner-workman was wrongly dispensed with w.e.f. 30th April 1987, according to the respondent's case, the reference cannot be sustained for the reason that in the entire pleading or the evidence which was adduced by the petitioner, he has utterly failed to discharge his burden of proof to establish that he was actually engaged in service after his alleged appointment so claimed by him to have been made on 1st January 1979, and that he accordingly in the said status had in fact continued to discharge his responsibility as a workman upto 30th April 1987 was the duty to be established by the petitioner to sustain his reference.

Furthermore, in order to consider the propriety of the order of dispensation of service with effect from 13th April 1987, it was a burden, which ought to have been discharged by the petitioner-workman in order to show that after his so-called appointment which is claimed to have been on 1st January 1979, he has actually worked for a continuous period of more than 240 days of the preceding calendar year i.e. the period preceding from the date of the order of dispensation of service i.e. 30th April 1987. When the proceeding was taken up before the labour court and the parties were called upon by the labour Court to address on the merits of the claim. The workman submits that he has called upon the employer to produce the documents in relation to his services and his grievance is that the documents, which has been produced by the employer in support of their contention was pertaining for a period from 1st January 1976 to 31st December 1978, and it was not in relation to the period from which the petitioner had claimed that he was employed and to the period till his services were dispensed on 30th April 1987.

Besides this, the employers' case as projected from the application paper number 32B which was filed by them before the labour Court was that, despite of calling upon the document in relation to the period of services from 1st January 1979 to 30th April 1987, it could not be produced by the employer, because first of all, they have in the pleadings specifically denied that the petitioner was ever employed into the services of the respondent as a workman and secondly, they have submitted that as far as the documents, which has been sought to be produced by the petitioner, on the records of the adjudication case, it was not practically possible for the reason being that according to the statistics, provided by the petitioner himself these documents relates back to the period of 1st January 1979 till 30th April 1987, that is almost for a period of about 29 years back and hence on that premise, the employer had come up with the case that they are incapacitated to place the documents on record for the following reasons:-

1) The employer's case was that in fact the petitioner, who claims himself to be a muster roll employee, was in fact, never an employee of the respondents at all at any point of time;

2) Even the documents, which has been called upon since they happened to be of 29 years of age, no such documents in relation to the services of the petitioner is available with them for the period from 1st January 2019 till 30th April 1987.

Hence, in that view of the matter, the learned labour Court, after considering the rival contentions had come up with the conclusion that in order to sustain the reference which has been sought for to be adjudicated by the petitioner the burden to proof that he had been in an effective employment for a period of 240 days preceding the date of order of removal i.e. 30th April 1987, it was the burden, which was to be discharged by him in order to show that he was in an effective employment of the respondents. Since he has not been able to discharge his responsibility to show his engagement with effect from 1st January 1979 to 30th April 1987, and in the absence of there being any documentary evidence, in support of it, it cannot be concluded by the labour court as to whether the petitioner had actually worked or not or was he ever employed with the respondents.

On the contrary, the argument of the learned counsel for the respondent is from the backdrop that apart from the fact that the petitioner was never employed with the respondent with effect from 1st January 1979, as no document in relation to his service records is available with them, the learned counsel for the respondent has submitted that, in such an eventuality, where there was no document available with the employer for the period of services, which he has claimed that the workman has actually worked or when the workman tries to derive a benefit out of the service rendered for certain particular period then it is burden which the workman, who has to discharge the burden of proof his actual and effective period of employment.

Mrs. Bina Pande, learned counsel for the respondent contends that in any litigation relating to services, if there arises a situation where the workman does not have any document in support of his contention pertaining to his continuance in the service, then it was the responsibility of the workman himself, particularly when the proceedings before the labour Court itself was being carried, he ought to have examined and cross-examined the witnesses of the employer and himself or his own witnesses to extract the particulars about the exact date of his appointment and his effective period of his functioning for the period, for which the benefit has been claimed for.

As per the judgement impugned, which is under challenge in the writ petition that is an award dated 21st July 2011, on faced with the said contingencies with regards to the absence of documents on record of his employment, even the judgement does not show anywhere or record a finding that the petitioner had ever made any efforts to cross examine the witnesses in order to derive or extract from statement of witness the actual date of his appointment. In support of his contention, the learned counsel for the respondent has placed reliance on a judgement as rendered by the Division Bench of Bombay High Court as reported in 2009 (120) FLR 114, Sub-Divisional Engineer, Irrigation Project, Yavatmal v. Sarang Marotrao Gurnule, wherein it has held that when a workman raises a claim in relation to a determination of certain rights related to his employment by the labour court, then in view of the ratio, as propounded by the Division Bench of Bombay High Court and considering that as laid down in para 21 of the said judgement which reads as under:-

"21. The next question is how the workman is expected to discharge this burden? Does it follow from the observations in the judgments quoted above (underlined for the sake of convenience) that a workman is expected to tender a particular quantum of evidence, or to examine a particular number of witnesses in support of his plea? The Evidence Act, which does not apply to matter under the Industrial Disputes Act, too does not lay down that any particular number of witnesses must be examined to prove a particular fact. A fact is held as proved when a Judge upon considering the matter before him either believes it to exist or considers its existence so probable that a man of ordinary prudence would believe that it exists. Just as it would be futile to expect an employer to prove a non-existent fact, namely that a workman had not worked for 240 days, it would be futile to expect a workman to produce non-existent evidence. The best evidence rule would mandate that if the workman has in his possession any documentary evidence which would support his word on oath, he must produce such evidence, and, if he is not doing so, it would result in discrediting his word. The observations of the Apex Court that in addition to his own word, the workman must put in something more has to be read with this caveat. The difficulties and dangers in examining another workman in support of his own claim may be imagined. Ordinarily out of fear of reprisal a workmen who is already in employment is unlikely to step into the witness box to support the case of a colleague who has been thrown out. Workman examining another workman who has been similarly thrown out would not cut ice with the Court because the Court may feel that two lies do not make one truth. Therefore, ultimately in the matter of appreciation of evidence, it is for the Judge who sees the parties in person and receives their evidence to decide whether he would believe them or not. Whether burden on workman is discharged by him or not would have to be decided by applying law declared in following few sentences from para 17 in judgment of three-Judge Bench in R.M. Yellati, which we wish to again reproduce, for, there would be no clearer pronouncement on the subject.

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 the 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 interfere 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."

A careful re-reading of this passage would show that the Court does not hint at necessity of examining anyone in addition to the workman, while at the same time saying that affidavit alone would not be sufficient. What is expected of workman is to tender 'cogent evidence', by stepping in the witness box (& thereby allowing the truth of his version to be tested by cross-examination)"

The above cited judgement, it has provided that the burden of the same has had to be discharged by the workman himself by leading evidence in support of his contention or the pleadings raised in the written statement with regards to his actual effective appointment and his effective discharge of service.

Secondly, the learned counsel for the respondents based on the said judgement has extracted the reasoning, which has been assigned in para 23 and 24 of the said judgement, which read as under:-

To sum up, the Apex Court had unequivocally laid down that initial burden would be on the workman and since such burden would be on the workman, there would be no question of an adverse inference being drawn because of mere non-production of any material by the employer. Whether such adverse inference ought to be drawn or not would depend on facts and circumstances of each case. The Apex Court could not be read to have laid down that a workman must examine at least one witness in addition to himself, or must produce some documents in addition to his oral testimony in order to discharge the initial burden on him. For, so holding would amount to an assumption that the workman has some evidence to tender, in addition to his own word, which he is withholding, which assumption may be factually incorrect. Therefore, should the evidence of the workman (tested by cross-examination and not merely an affidavit) be adequate to inspire confidence of its truthfulness, in the facts and circumstances of the case, the Court would be entitled to accept such a word without insisting upon corroboration, which in fact may not exist. In other words it is not the quantity of evidence that is to be seen by the Court of first instance, but the quality, in order to come to correct factual conclusions. Ordinarily, higher Courts would be slow to interfere in finding of facts recorded by the Courts of first instances unless such findings are recorded without any foundation or are perverse in nature.

A perusal of the judgment of the Labour Court would show that the respondent examined himself and stated that he was getting wages on muster roll. He was cross-examined on behalf of employer. The appellant, however, did not adduce oral evidence but filed xerox copies of some muster rolls which were not proved. In these circumstances the Labour Court found the evidence of the respondent/workman about his having worked continuously with the appellant/employer for more than 240 days in a year trustworthy. The learned Single Judge was right in observing that it is not a case where there was no evidence at all on the record. The Labour Court accepted the evidence of the respondent/workman as trustworthy and recorded his finding accordingly. We do not find any infirmity in the judgment of the learned Single Judge in dismissing the writ petition filed by the appellant. There is no substance in the appeal. Hence we pass the following order:

The L.P.A. is dismissed."

In the said judgement, wherein while placing reliance on the judgement of the Hon'ble Apex Court, it has been laid down that the initial burden to substantiate a claim raised by way of reference before the labour court, the burden to prove the same was to be discharged by the workman, who raises a claim before the labour Court, in order to show its sustainability under the law, and he cannot call upon or force the employer to lead an evidence against themselves to prove his effective employment and its period.

Although, this proposition, pertaining to casting or shifting upon the burden on an employer to prove by an evidence contrary to the interest, is not an issue present in the instant case where the employer has come up with specific case that the petitioner was not an employee of the respondent for the aforesaid period as claimed by and hence in view of the findings which has been recorded by the labour court and in view of the reasoning given in the aforesaid judgement of the Division Bench of Bombay High Court, since there is no evidence brought on record to show that he has actually discharged his services with effect from 1st January 1979 till the so-called claim of the date of dispensation of the services i.e. 30th April 1987, the labour court's judgement, which has held by it that it is slightly incapacitated to decide the matter on merits in the absence of there being any evidence led by the petitioner to show his actual effective date of employment, the right claimed by reference cannot be answered by the labour Court.

After having heard the learned counsel for the parties and after going through the impugned award, this Court is of the view that the impugned award does not suffer from any mistake or an apparent error which could call for an interference by this Court, because even as per the ratio of the Bombay High Court, also the High Courts in its jurisdiction in examining an award, it has limited, the scope of interference by the Court under Article 227 of the Constitution of India as against the award rendered by the labour Court. But so far it relates to an interpretation or determination of the evidences, which have already been led by the Court below, because the scope of interference in the exercises of its extraordinary supervisory jurisdiction under Article 227 of the Constitution of India is extremely limited. Consequently, this Court holds that the writ petition lacks merit and the same is accordingly dismissed.