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Judgment
Dipak Misra, J.
In this appeal the M.P. Textbooks Corporation, the Appellant has called in question the legal acceptability of the order dated 26-9-2006 passed by the learned Singal judge in W.P.3222/98.
The facts which are essential to be stated are that the first Respondents, the writ Petitioner, was engaged as a Lower Division Clerk by the Appellant-Corporation by order dated 11-10-1991 and continued to serve till 19-10-1992. Being aggrieved by the order of his termination he raised an industrial dispute under the provision of Industrial Disputes Act, 1947 [for brevity the Act'']. The Lower Court on appreciation of the material brought on record came to hold that the engagement of the workman was only on daily rate basis and, therefore, the termination did not amount to retrenchment. Being of this view he answered the reference in favour of the management. Being dissatisfied with the aforesaid award of the Labour Court the first Respondent invoked the extraordinary jurisdiction of the Court under Articles 226 and 227 of the Constitution of India. The learned Single judge adverted to the termination of retrenchment as engrafted u/s 2(oo) of the Act. He also reverted to Section 25B of the Act which defines continuous service. The learned Single judge appreciating the said provisions came to hold that the Respondent No. 1 had admittedly worked from 1-11-1991 to 19-10-2002 for a period of 240 days in preceding 12 months till the order of his termination and hence, he was entitled to be paid retrenchment compensation and as that had not been paid he was entitled to reinstatement. The learned Single judge declined to grant any back-wage.
Challenging the aforesaid order it is submitted by Mr. A.K. Pathak, learned Counsel for the Appellant that on a scrutiny of Annexure-P/1 to Annexure-P/4 it is crystal clear that the first Respondent was engaged for 89 days and there were breaks in service and hence, the learned Single Judge has fallen into grave error by coming to hold that there was continuous service. It is his further submission that the evidence of the Superintendent examined on behalf of the Management cannot override the documentary evidence as it is well settled in law that documentary evidence shall prevail over the oral evidence. The learned Counsel further contended that the concept of retrenchment is not attracted to the case at hand and, in fact, it is excluded as it will come under the concept of 2(oo)(bb). To bolster his submissions, he has placed reliance on decisions rendered in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, , M.P. Electricity Board v. Hariram etc. 2004 MPSLR 489 and Kalyani Sharp India Ltd. (M/s) v. Labour Court No. 1 Gwalior and Anr. 2001 Vidhibhaswar 299.
Mr. Ajay Mishra, learned senior counsel for the first Respondent resisting the aforesaid submission contended that the workman was engaged continuously and there were artificial breaks and such artificial breaks would not debar the workman to claim the benefit of retrenchment and thereby putforth a claim assailing the order of retrenchment on the ground that there has been statutory violation. It is urged by him that though Annexure - P-1 to P - 4 were passed by the Management to create artificial breaks but from that it cannot be inferred that the Respondent - workman had not worked during that period. The learned Counsel has placed heavy reliance on the Management witness No. 1 to show that he has deposed in clear cut manner that the Respondent No. 1 has worked for 240 days during the calendar year and the same amounted to admission. It is putforth by him that there was no pleading by the Management that the Respondent was not engaged in the work during the period and no endeavour has been made to prove the same. Learned Counsel further canvassed that the services of the Respondent has been terminated on the foundation of unsatisfactory work and since such a plea is advanced, the concept of termination as stipulated u/s 2 (oo)(bb) of the Act does not arise. To buttress his submissions he has placed reliance on the decision rendered in the case of S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka, 2003 (2) MPLJ 529 and M.P. Text Book Corporation v. Krishna Kumar, 1998 MPSLR 369.
To appreciate the submissions raised at the Bar it is apposite to refer to Section 2(oo) and 25-F of the Act as they are relevant for the present purpose. They read as under:
Definitions. In this Act, unless there is any repugnant in the subject or context,-
(oo) ''retrenchment'' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contain a stipulation in that behalf; or
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill - health;
25-E Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until.
(a) the workman has been given one month''s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days'' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
In the case of S.M. Nilajkar (supra) the Apex Court while dealing with the concept of retrenchment and the termination of service under the meaning of sub - Clause (bb) has expressed the opinion as under;
"Retrenchment" in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well settled by a catena of decision that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case doubt or where it is possible to take two views of a provision. It is also well settled that Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term "retrenchment" a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term "retrenchment", and therefore, termination of service of a workman so long as it is attributable to the act of the employer would fall within the meaning of "retrenchment" dehors the reason for termination. To be excepted from within the meaning of "retrenchment" the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within categories (a), (b), (bb) and (c) would fall within the meaning of "retrenchment".
In a case of retrenchment, if the retrenchment compensation is not paid such a retrenchment is void ab initio. The said view has been laid down in the cases of The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, , Workmen of Subong Tea Estate, represented by the Workmen of Subong Tea Estate Vs. The Outgoing Management of Subong Tea Estate and Another, , Commissioner of Income Tax, Bombay City Vs. Bombay Burmah Trading Corpn., Bombay, , H.D. Singh v. Reserve Bank of India and others, AIR 1984 SC 132, Rattan Singh v. Union of India, (1997) 11 SCC 396 , Management Of MCD Vs. Prem Chand Gupta and Another, and Smt. Kusum Gupta alias Kusum Bansal Vs. Haryana State Small Industries and Export Corpn., Chandigarh, .
In the case at hand, admittedly the conditions precedent for retrenchment have not been complied with it is because, as Mr. Pathak would contend, it does not amount to retrenchment but a termination as contained in Section 2(oo)(bb) of the Act. The sole ground urged is that the workman had not worked for 240 days or more in a preceding 12 months. The learned Single Judge has held that the workman has worked for the said period between 01.11.1991 to 09.10.1992. There is no dispute that the workman was appointed on 89 days basis at intervals which is revealable from Annexures - P-1 to P-4. Submission of Mr. Ajay Mishra, learned senior counsel is that though there had been artificial breaks, the workman worked for the said period. He has relied on the deposition of the workman and on the evidence of management witness No. 1 who has deposed that the workman had worked for 240 days in a calendar year.
In the case of Hariram (supra) the Apex Court took note of the muster roll to conclude that the workman was engaged not at regular intervals in the services of the management as there was not continuous need for such work. Their Lordships further held that establishment of factum that the workman worked for 240 days in a calendar year rests with the workman. In that context, in paragraph 11, the Apex Court held thus:
The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas, , wherein this Court disagreed with the High Court''s view of drawing an adverse inference in regard to the non-production of certain relevant documents. This is what this Court had to say in that regard:
A Court of law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a Court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into considerations in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduce by the Respondent.
In Krishna Kant Pancholi (supra). D.M. Dharmadhikari, J. (as his Lordship then was) while dealing with the stand that the workmen were employed for 89 days and were not entitled to the benefit of payment of retrenchment compensation, analyzed the provisions contained in Standard Standing Order applicable to the M.P. Text Book Corporations and took note of the fact that the Lobour Court had found that the act of the employer in continuing the services of the employees on orders of appointment for 89 days with artificial breaks amounted to unfair labour practice and that before the Labour Court no plea was taken that the appointments of the employees were contractual for a fixed duration and come to hold that where unfair lobour practice had been adopted, taking recourse to the provisions of Section 2(oo)(bb) was impermissible.
In the case of S.M. Nilajkar (supra) a two Judge Bench of the Apex Court after scrutinizing the facts in detail expressed the opinion as under:
...... To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of subclause (bb) abovesaid. In the case at hand, the Respondent employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the Appellant were engaged as casual workers or daily wagers in a project. For want of proof attracting applicability of Sub-clause (bb), it has to be held that the termination of the services of the Appellants amounted to retrenchment.
In Kalyani Sharp India Ltd. (M/s) v. Labour Court No. 1 Gwalior and Anr. 2001 (1) VB 299 the Apex Court while considering the stand of the Management that services of the workmen therein would be put to an end to in terms of the employment as contained in Section 2(oo)(bb) of the Act, paragraph 6 has held as under:
The order of employment itself clearly sets out the terms thereafter which makes it clear that the facility of providing training to him could be put to an end at any time without assigning any reason whatsoever and his services could be regularized only on satisfactory completion of his training. If these clauses are read together it is clear that he was under probation during the relevant time and if his services are not satisfactory, the same could be put an end to. It is clear that the Respondent had been appointed as a Trainee Service Technician and for a period he had to undergo the training to the satisfaction of the Appellant and if his work was not satisfactory during that period, the facility could be withdrawn at any time and he would be regularized only on completion of his training. Thus the Respondent''s services were terminated before expiry of the probationary period. In such a case question of notice before terminating the service as claimed by the Respondent does not arise. Excort''s case (supra) is identical with the present case. Following the said decision and for the reasons stated therein these appeals are allowed. The order made by the High Court affirming the award made by the labour Court is set aside and the claim made by the Respondent is dismissed.
In Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, the Apex Court has held as follows:
8 To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less than one year. Section 25-B 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 uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lockout or cessation or work, that is not due to any fault on the part of the workman, shall be said to be 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 u/s 25-B. However, the workman must have been in service during the period i.e. not only on the data 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 not only 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 25-B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B 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 25-F.
In R.M. Yellatti Vs. The Assistant Executive Engineer, it has been held as under:
Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. 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 of proof of payment. Thus in most cases, the workmen (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 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.
In Gangadhar Pillai Vs. Siemens Ltd., their Lordships in paragraphs 23 and 25 have held as under:
The question as to whether an employee had intermittently been engaged as casual or temporary for a number of years is essentially a question of fact. This issue as to whether unfair labour practices had been resorted to by the employer or not must be judged from the entirety of the circumstances brought on record by the parties.
A finding of fact has been arrived at, keeping in view the nature of engagement offered to the Appellant by the Respondent, by the Tribunal. The burden to prove that the Respondent resorted to unfair labour practice indisputably was on the workman. There had been breaks in service but then it has rightly been held that the same were not artificial ones. Requirement to employ employees on a temporary basis is writ large on the face of the nature of the projects undertaken by the Respondent....
In Sriram Industrial Enterprises Ltd. Vs. Mahak Singh and Others, the Apex Court in paragraph 35 has opined as follows:
Having correctly interpreted the provision of Section 6-N of the U.P. Act, the High Court rightly drew an adverse presumption for non - production of the attendance registers and the muster rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer case were watered down by the subsequent decision in R.M. Yellatti case and in our view the workmen had discharged their initial onus by production of the documents in their possession.
The obtaining factual matrix has to be tested on the anvil of the aforesaid enunciation of law. There are documents on record to show that the workman was engaged on interim basis. The submission of learned Counsel for workman is that the said orders were issued to avoid the liability to be faced by the management because of the Standing Order and the provisions contained in other enactments inclusive of liability under the Industrial Disputes Act. The workman had unequivocally stated that he was working during the interregnum period between the issue of two letters of appointment. The management witness No. 1 has deposed that the Appellant was working. The management had not taken the plea of appointment on contract basis for specific duration. The management could have produced the ledger or the attendance register or the muster roll to show that the workman was kept out of work during that period. That has not been done. The pleading was that the Respondent has been terminated on the basis of unsatisfactory work. In the absence of any specific plea to specify that Section 2(oo)(bb) was not attracted and in the backdrop of proponement of positive plea that there has been unsatisfactory work and, therefore, his services have been done away with; and in the absence of production of any document that the workman had not worked during the break period and also in view of the categorical evidence brought on record by the workman by examining himself and eliciting in the testimony of the Supervisor that he had worked for 240 days in a calendar year, we are of the considered opinion that the view expressed by the learned Single Judge in setting aside the award dated 11.11.1997 passed by Labour Court vide Annexure P - 9 to the writ petition cannot found fault with. We held so as we are disposed to think that on the basis of our analysis made hereinabove the initial onus that was required to be discharged by the workman in law had been discharged and it was the obligation on the part of the Management to prove to the contrary. That having not been done, the award passed by the Labour Court is illegal and improper and the leaned Singh Judge has rightly unsettled the same in exercise of jurisdiction under Articles 226/227 of the Constitution of India. The learned Single Judge has correctly not granted backwages. We concur with both the aspects dealt with by the writ court.
In the result, the writ appeal, being sans substratum stands dismissed. However, there shall no order as to costs.