Food Corporation of India vs Presiding Officer and Another

M.L. Singhal, J.—This is a petition under Article 226 of the Constitution of India for issuance of a Writ of certiorari for quashing the award dated August 30, 1994 passed by the learned Industrial Tribunal, Guwahati in Reference No. 13(c)/1992.

The Respondent No. 2, Sri Monohari Kalita worked as casual worker at F.S.D., Tihu Depot of Food Corporation of India on daily wages basis sometime during the year 1981-85. Suddenly, he was asked to stop working from February, 1985, his services were terminated without giving any opportunity of hearing or assigning any reason. He requested the Management of the petitioner to take him in the employment, but to no effect. Thereafter, he approached the Assistant Labour Commissioner, Guwahati for conciliation, the conciliation also failed. Subsequently, the Government of India by notification No. L-22012/166/F92-IR (C.II) dated October 9, 1992 referred an industrial dispute between the petitioner Management and the respondent No. 2 for adjudication by the Industrial Tribunal, respondent No. 1, which was registered as Reference No. 13(c)/1992. The Industrial Tribunal, by its impugned Judgment has found in favour of the respondent No. 2, the employee and against the petitioner/ employer, has found the dispensation of the services of the respondent No. 2 in violation of the provisions of Section 25F and 25H of the Industrial Disputes Act, 1947. Being aggrieved by the verdict of the said Industrial Tribunal, the petitioner employer has preferred this petition.

I have heard Mr. B.K. Das, the learned counsel for the petitioner and also heard Mr. G.K. Bhattacharyya, the learned counsel for the respondent No. 2 at length and have gone through the record of the Writ Petition.

The learned counsel for the petitioner has vehemently argued that there is total non-application of mind on behalf of the Industrial Tribunal, in view of the provisions of Section 25F read with Section 25B, the Respondent No. 2, workman was required to establish that he has been in continuous uninterrupted service for 240 days in a year, before he was entitled to relief prayed for.

The learned counsel for the petitioner referred to the provision of Section 103 of the Evidence Act and argued that the learned Industrial Tribunal was wrong in placing burden of proof on the petitioner employer. The learned counsel also has relied upon the decision of the Hon''ble Supreme Court, State of Haryana Vs. Om Parkash and Another,

The following excerpts of the Judgment recorded by the learned Industrial Tribunal, necessary for the disposal of the present Writ Petition, are extracted hereunder:

"The Management in their written statement contended that the reference is not maintainable and this Tribunal has no, jurisdiction to interfere. The workman was engaged on daily wages basis for 19 days in a month at Tihu F.S.D. for cleaning, sweeping and water carrier work in 1981. He was removed from casual service in 1985 when there was no use of further engagement. Management is not required to follow the provision of Section 25H and 25-F of the Act as the workman was never in continuous service for one year. No other persons are engaged after his retrenchment. As such he is not entitled to the relief claimed.

The witness for the Management deposed that no formal appointment letter is issued to any casual worker engaged on daily wages basis. This witness admitted that the workman worked from 1981-85. The workman deposed that he worked for the whole month but was paid less. It means he was paid for the days he worked. According to management he was engaged for 19 days in a month, but no official record is produced to prove that the workman actually worked 19 days in a month. To prove this contention payment register and the attendance register ought to have been produced before this Tribunal to come to a conclusion that the workman never worked for 240 days continuously in a year. In the absence of the documentary evidence oral evidence or the Management witness could not be accepted.

Exhibit 1 says that the workman was engaged as casual worker during the period from November 1981 to February, 1985 without any mention therein that he was engaged for 19 days in a month. It further speaks that his reinstatement could not be considered as the handling and other depot operations are carried out through workers under "Workers Management Committee", but to this effect no evidence is adduced."

Section 103 of the Indian Evidence Act, on which the learned counsel for the petitioner has placed reliance runs as follows:-

"The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

The learned counsel for the petitioner argued that the respondent No. 2 was in service for 240 days in a year as contended by him, it was a fact within his knowledge and in view of the provisions of Section 103 of the Act, burden lays on him to prove that he was in service for 240 days in a year for claiming the benefit of the provisions of Section 25F and 25H of the Act. A perusal of Section 103 of the Evidence Act clearly reveals that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of the fact shall lie on the particular person. This requires reference to Section 106 of the Indian Evidence Act, which provides as follows:

"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

As revealed by Section 106 of the Indian Evidence Act, if any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In the instant case the fact that the respondent No. 2 was in service of the petitioner for only 19 days in a month and the period never exceeded 240 days was a fact also within the knowledge of the petitioner employer, Food Corporation of India. The burden also lay upon the petitioner by producing the Attendance Register and Pay Register of the respondent No. 2, which would have shown that in fact the respondent No. 2 was in the employment of the petitioner for only 19 days in a month and the period never exceeded 240 days. The learned Industrial Tribunal has rightly observed that the Management of the petitioner did not adduce any official record before the Tribunal to prove that the workman actually worked 19 days in a month. To prove this contention, the two documents, Pay Register and Attendance Register ought to have been produced before the Tribunal to show that the respondent No. 2 never worked for 240 days continuously in a year. Had these two documents been produced by the petitioner Management, the two documents would have shown for how much period the respondent No. 2 worked in the Management of the petitioner, the petitioner having failed to do so, an adverse inference has to be drawn against the petitioner u/s 114, Clause (g) of the Evidence Act which provides that the Court may presume that the evidence which could be and is not adduced and if produced, would be unfavourable to the person who withholds it. The learned Tribunal, on the basis of the evidence before it has concluded that the respondent No. 2 was in the service of the petitioner for more than five years and he worked for 240 days continuously in a year. The learned counsel for the petitioner laid the stress on the fact that it is admitted case of the parties that the respondent No. 2 was a casual worker on daily wage basis in the employment of the petitioner and, so, he could not be held to be in continuous service for a period of 240 days in a year. Section 25F of the Industrial Tribunal Act simply speaks of continuous and uninterrupted service of the employee, and it does not exclude a casual worker on daily wage basis from the purview of Section 25B of the Act. The findings by the learned Industrial Tribunal cannot be said to be not based on record or perverse so as to call for review by this Court.

As regards the decision of the Hon''ble Supreme Court in State of Haryana v. Omprakash (supra), relied on by the learned counsel for the petitioner, the facts of the case were entirely different. In that case the workman worked only for a period of about 10 months, which was less than a year. He never worked for 240 days during 10 months immediately preceding the date of cessation of work. So, the decision of the Hon''ble Supreme Court in State of Haryana v. Om Prakash (supra) does not help the petitioner in the instant case. As shown by the Judgment of the learned Industrial Tribunal after the termination of the service of the respondent No. 2, another man has been given employment by the petitioner Food Corporation of India. The learned counsel for the petitioner also argued that respondent No. 2 is a casual worker on daily wages basis, and, as such, the judgment of the learned Tribunal cannot be implemented. It may be observed that the respondent No. 2 has been in service for about five years from 1981-85, his services have dispensed with in violation of Section 25F and 25H of the Act, the action of the petitioner management is wholly illegal. Respondent No. 2 has to be reinstated with full back wages from the date of the retrenchment.

The Writ Petition has no force and does not call for interference. The writ petition is dismissed.