Mange Ram vs Divisional Forest Officer, Bhiwani & Anr.

KIRTI SINGH, J. (Oral)

The present writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of the Award dated 11.10.2010 (Annexure P-5) passed by the learned Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar, in Reference No.41 of 2007, whereby the reference has been answered against the petitioner-workman and the same has been dismissed.

As per the pleaded case, the petitioner was engaged/appointed by respondent No.1-Divisional Forest Officer, Bhiwani, as a Beldar-cum-Mali in the Loharu and Bawani Khera Range, and claimed to have worked continuously from 25.12.1984 to 30.09.2004. It is the case of the petitioner that on 01.10.2004, when he reported for duty, he was not allowed to resume the same, and his services were verbally terminated, without any notice, notice pay or retrenchment compensation, and while juniors to him were retained in service. Aggrieved thereby, the petitioner served a demand notice dated 10.02.2006, pursuant to which the dispute was referred for adjudication and registered as Reference No.41 of 2007. Respondent No.1-management contested the claim by filing a written statement, wherein it was pleaded that the petitioner was engaged as a daily wage labourer by the Forest Guard concerned, and that as per the official record, he had worked only during the period from December, 1988 to September, 1990, with breaks, and had never worked continuously from 25.12.1984 to 30.09.2004, as claimed, nor completed 240 days of service in any calendar year or in the twelve months preceding his alleged termination.

The learned Tribunal, upon appreciation of the pleadings and evidence led by the parties, held that the petitioner, in his cross-examination, admitted having worked with the respondent-department only from December, 1988 to September, 1990, with breaks, which admission corroborated the record placed on file by the management, and, in the absence of any cogent or clinching evidence to the contrary, held that the petitioner failed to prove that he had completed 240 days of service in any calendar year, or in the twelve months preceding his alleged termination. On the question of retention of junior workmen, the learned Tribunal held that no material had been placed on record to substantiate the plea. Accordingly, vide the impugned Award, the reference was answered against the petitioner and dismissed. Aggrieved thereby, the petitioner has approached this Court by way of the present writ petition.

Learned counsel for the petitioner submits that the impugned Award suffers from illegality, inasmuch as the petitioner had rendered long and continuous service with the respondent-department, and that the finding recorded by the learned Tribunal runs contrary to the settled proposition of law laid down by the Hon'ble Supreme Court in Managing Director, Tamil Nadu State Transport Corporation v. K.V. Krishnan, 2010(4) LLJ 385, and Chandra Kant Narrottam Das Patel v. Vishal Malleables Ltd., and by this Court in General Manager, Haryana Roadways, Hissar Depot v. Raghbir Singh, 2008(1) SLR 638.

Learned State counsel, on the other hand, supports the impugned Award and submits that the finding recorded by the learned Tribunal, that the petitioner failed to prove that he had completed 240 days of continuous service in the twelve months preceding his alleged termination, is a pure finding of fact, based squarely upon the petitioner's own admission in his cross-examination, corroborated by the documentary record placed on file by the respondent-department, and calls for no interference.

I have heard learned counsel for the parties and perused the record.

It is settled law that to claim protection under Section 25-F of the Industrial Disputes Act, 1947, the workman is required to establish that he was in continuous service for the requisite period as contemplated under Section 25-B of the Act, and for the purpose of Section 25-B(2), the workman must establish that he had actually worked for 240 days during the twelve months preceding the date of termination. The burden of establishing the requisite period of service, in the first instance, lies upon the workman. In --3--this regard, a gainful reference can be made to the judgments passed by the Hon’ble Supreme Court in Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25,and in Civil Appeal No.6511 of 2005 titled as Surendranagar District Panchayat Vs. Dahyabhai Amarsinh.

It is equally well settled that, while exercising jurisdiction under Articles 226/227 of the Constitution of India in respect of an Award passed by the Labour Court/Industrial Tribunal, this Court does not sit as a Court of appeal to re-appreciate the evidence or substitute its own view for that taken by the Tribunal. Interference with a finding of fact is warranted only where such finding is shown to be perverse, based on no evidence, or otherwise vitiated by an error of law apparent on the face of the record.

Tested on the aforesaid parameters, no such infirmity is discernible in the impugned Award. The learned Tribunal, after considering the evidence on record, particularly the petitioner's own admission in cross-examination that he had worked as a daily wage labourer from December, 1988 to September, 1990, with breaks, found that the said admission was consistent with the stand of the management and the working record Ex.M1 to Ex.M17. On that basis, the Tribunal concluded that the petitioner had failed to establish that he had worked for 240 days during the twelve months preceding his alleged termination. The said conclusion is thus founded upon evidence available on record and cannot be said to be either perverse or based on conjecture.

Once the petitioner failed to establish the foundational requirement of having actually worked for 240 days during the twelve months preceding the alleged termination, the protection contemplated under Section 25-F of the Industrial Disputes Act could not be invoked. The judgments relied upon by learned counsel for the petitioner, dealing with the consequences of retrenchment in violation of Section 25-F and the relief that may be moulded in such cases, therefore, have no application to the facts of the present case, as the very basis for attracting Section 25-F has not been established.

As regards the plea of retention of juniors, the learned Tribunal noticed that the petitioner had asserted that Ram Singh of Bardu Village, allegedly junior to him, was still working with the respondent, but had failed to summon any record in support of the said assertion. In the absence of cogent material establishing the petitioner's alleged seniority or violation of the principle of "last come, first go", no interference is warranted with the finding recorded by the learned Tribunal.

In view of the aforesaid discussion, the findings recorded by the learned Tribunal are based on appreciation of the evidence available on record and do not suffer from any perversity, illegality or jurisdictional error warranting interference under Articles 226/227 of the Constitution of India. The impugned Award, therefore, calls for no interference.

Accordingly, the present writ petition stands dismissed.

Pending application(s), if any, stand disposed of.