Nagar Palik Nigam, Ujjain vs Rajpalsingh

The petitioner has filed the present petition being aggrieved by award dated 27.2.2017 passed by Labour Court, Ujjain By the aforesaid award, the Labour Ujjain has directed reinstatement of the respondent without back-wages.

The respondent raised an industrial dispute before the Dy. Commissioner u/s. 10 of the Industrial Disputes Act, 1947 (hereinafter, for short, “the Act”) alleging that he was engaged by the Municipal Corporation, Ujjain in the month of April, 2012 as a Driver in Fire Brigade Section. He was paid as per Collector-rate. By way of oral order in the month of September, 2013, his services have been discontinued for want of work. Before such termination, he was not given one month's notice or one month's salary in lieu of such notice. He was not given any charge-sheet and no enquiry was conducted. He has completed 240 days of service in one calender year, therefore, provisions of Section 25-F of the Act would attract. The conciliation proceedings were held and the same ended into failure. Thereafter, the report was submitted to the appropriate Government. The appropriate Government found industrial dispute exists, therefore, the dispute was referred to the Labour Court, Ujjain. The terms of the reference are reproduced below :

“ lUnfHkZr vuqlwph

D;k Jh lsokfu;qDDr ds dk;Z dh vko';drk ugh gksus ij fd;k x;k lsok i`Fkdhdj.k oS/k ,oa mfpr gS \ ;fn ugha rks D;k vkosnu vkS?kksfxd fookn vf/kfu;e 1947 dh /kkjk 25&,p ds vuqlkj iquZfu;qfDr dk ik= gS \ ;fn gksa rks lsokfu;qDr fdl lgk;rk dk ik= gS ,oa fu;kstd i{k dks bl laca/k esa D;k funsZ'k fn;s tkus pkfg, \”

Before the Reference Court, the respondent filed statement of claim and the present petitioner filed the reply. By way of reply, it was specifically pleaded that the respondent was never appointed in the Fire Brigade Section in the month of April, 2012, therefore, question of termination does not

arise. The provisions of the Act are not applicable. The employment in the Municipal Corporation are made under the provisions of M.P. Nagar Palik Nigam (Adhikariyon Ki Sevako Ki Niyukti Tatha Seva Shart) Niyam, 2000 after following due process.

In support of his claim, the respondent examined himself and he was cross-examined by the present petitioner. Thereafter, vide award dated 27.2.2017, the Labour Court has recorded the finding that respondent worked for more than 240 days in one calender year and before termination, the provisions of Section 25-F of the Act were not followed, therefore, the termination is bad in law and directed his reinstatement without back-wages, hence, the present writ petition before this Court.

The respondent, who approached the Labour Court with the plea that he worked from April, 2012 to September, 2013 continuously, therefore, burden lies on him to prove that he worked for more than 240 days in one calender year, but in support of his claim, he has not filed any document or any oral evidence. In crossexamination, he has specifically admitted that he is not having any documentary proof in respect of his employment. He has also not examined any co-worker in support of his claim. He has not filed even the appointment order and the driving licence.

In identical facts and circumstances, this Court in the case of Indore Nagar Palika Nigam V/s. Mukesh (W.P. No.3263/2014) has set aside the order of Labour Court on the ground that the burden is on the workman to prove that he worked for 240 days in one calender year and the said burden cannot be shifted over the employer. Relevant paragraphs of the said judgment are reproduced below :

“02. The facts of the case reveal that the respondent Mukesh has approached the Labour Commissioner u/s 10 of the Industrial Disputes Act, 1947 and the learned Labour Commissioner by the order dated 13-01-2010 forwarded a reference to the Labour Court for adjudication. It was stated by the workman before the Labour Court that he was employee of Indore Municipal Corporation and his services were put to an end, without following the prescribed procedure, meaning thereby without following section 25 of the Industrial Disputes Act, 1947. The Labour Court has decided the matter and has granted compensation to the tune of Rs. 60, 000/- to the workman in question.

The petitioner before this court Indore Nagar Palika Nigam, Indore has filed this present petition being aggrieved by the order dated 29-10-2013 published on 27-11-2013 passed in ID Reference Case No. 22/2010 by the Presiding Officer Labour Court, Indore.

Mr Patwardhan, learned counsel appearing for the Indore Municipal Corporation has vehemently argued before this court that no documentary evidence or any oral evidence was produced before the Labour Court to establish that the workman has put into 240 days and was dis-continued without paying retrenchment compensation. However, Labour Court based upon the statement of claim and statement of workman has passed the impugned order. He has also vehemently argued that an application was preferred before Labour Court by the workman on 16-10-2012 for production of document relating to payment of wages and Labour Court has rejected the aforesaid application on 03-05-2015. His contention is that the Labour Court has erroneously passed the impugned order directing the payment of compensation and therefore the order passed by the Labour Court deserves to be set aside.

Shri Patwardhan has placed reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of R.M. Yellatti Vs. Asstt. Executive Engineer reported in SCC-2006(1)106. His contention is that the workman is required to prove that he had worked for 240 days in a given year. He has further argued that in absence of any evidence, the question of directing monetary compensation to the workman does not arise.

Shri Patwardhan has also placed reliance upon a judgment delivered by the Hon'ble Supreme Court in the case of Range Forest Officer Vs. S.T.

Hadimani reported in SC 2002(3)25 and his contention is that in the aforesaid case, the Hon'ble Supreme Court has held that mere filing of an affidavit of his own statement in his favour by a workman cannot be regarded as sufficient evidence to come to the conclusion that a workman had, infact worked for 240 days in a year and, therefore, the order passed by the Labour Court deserves to be set aside.

Lastly, reliance was placed upon a judgment delivered in the case of Municipal Corporation Faridabad Vs. Siri Niwas reported in SCC- 2004(8)195. His contention is that the Hon'ble Supreme Court in the aforesaid case has held that in case of violation of section 25F of the Industrial Disputes Act, 1947, the workman has to establish that he has worked for 240 days in preceding twelve months prior to his alleged retrenchment.

On the contrary, learned counsel Shri Moyal appearing for the workman has placed reliance upon the judgment delivered in the case of State of Uttar Pradesh and Another Vs. Kum Shashi Joshi reported in 2015 LLR 158 and his contention is that in case a workman has worked as a dailywager for more than 240 days, he is not only entitled for backwages, but he is also entitled for reinstatement in service.

Reliance has also been placed in the case of Jasmer Singh Vs. State of Haryana and another reported in 2015 LLR 225 and the contention of the learned counsel is that in case a workman has completed 240 days of continuous service and the same is established on the basis of evidence on record, he is entitled for reinstatement with full backwages.

Reliance has been placed upon the judgment delivered in the case of K.S. Ravindran Vs. Branch Manager, New India Assurance Company Ltd., reported in (2015) 7 SCC 222 and again the contention of the learned counsel is that in case a workman has been retrenched in violation of 25-F of the Industrial Disputes Act, 1947, he is entitled for reinstatement as well as compensation.

Learned counsel Mr Moyal has further placed reliance upon a judgment delivered in the case of Raj Kumar Dixit Vs. Vijay Kumar Gauri Shanker reported in (2015) 9 SCC 345. In the aforesaid case it has been held that retrenchment of the workman in violation of 25F of Industrial Disputes Act, 1947 entitles a workman to reinstatement.

Reliance has also been placed upon a judgment delivered in the case of Bhuvensh Kumar Dwivdei V.s Hindalco Industries Ltd., reported in 2014

(11) SCC 85. A similar view has been taken by the Hon'ble Apex court. However, in the aforesaid case, an issue of backwages was also under consideration and the apex court has held that proof of having been in gainful employment, post termination of service is upon the employer.

Reliance has also been placed upon the judgment delivered in the case of Director of Horticulture and Anoti Vs. H.A. Kumar reported in 2013 LLR 1162. In the aforesaid case also retrenchment compensation to the workman was ordered as the workman has put in more than 240 days of services.

Lastly, reliance has been placed upon the judgment passed by Division Bench of this court in the case of Sanjay Kumar Vs. Chief Executive Officer, Janpad Panchayat, Ratlam reported in 2010 LLR 1065, wherein the workman has proved that he has worked for more than 240 days and in a rebuttal there was no cogent evidence and in those circumstancesreinstatement of the workman was ordered alongwith 50% backwages.

This court has carefully gone through all the aforesaid judgments relied upon by the learned counsel for the respondent workman. The present case is having distinguishable features.

In the present case, the employee has filed an application for production of documents relating to the alleged engagement of the workman and payment of salary etc. Labour Court has rejected the aforesaid application of the workman on 03-05-2015. The workman except for making a bald statement that he was employed with the employer has not produced any evidence to establish that he was employed for 240 days or for more than 240 days. Paragraphs 14, 15, 16, 17 and 18 of the impugned order also establishes that except for making a bald statement in the statement of fact, the workman has not produced any evidence nor there is any evidence on record to establish his engagement with the Indore Municipal Corporation.

The apex court in the case of Range Forest Officer (supra) in paragraphs 2 and 3 held as under :-

“2. In the instant case, dispute was referred to the Labour Court that the respondent and worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10th August, 1998, came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days, the Tribunal stated that the burden was on the Management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratam Singh Narsinh Parmar, JT (2001) 3 SC 326. In our opinion the Tribunal was not right in placing the onus on the Management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination.

Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today.

The appeals are disposed of in the aforesaid terms.”

In the aforesaid case, the award was set-aside as no proof of receipt of salary or wages nor any record of appointment or engagement was produced by the workman and therefore in light of the aforesaid this court is of the considered opinion that the Labour Court has wrongly awarded compensation to the workman in question. The apex court in the case of Municipal Corporation Faridabad (supra) in paragraphs 7 to 10 held as under :“7. 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 nonproduction of evidence is always optional and one of the factors which is required to be taken into consideration 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 adduced by the Respondent.

No reason has been assigned by the High Court as to why the exercise of discretional jurisdiction of the Tribunal was bad in law. In a case of this nature, it is trite, the High Court exercising the power of judicial review, would not interfere with the discretion of a Tribunal unless the same is found to be illegal or irrational.

8 . In Mahant Shri Srinivas Ramanuj Das vs Surajanarayan Das and Another [AIR 1967 SC 256] this court held :

28.The Mahant has not come in the witness box. All the documents have not been produced. In fact it is the plaintiff alone who produced a number of documents but he had picked and chosen from among the documents in his possession. Some documents which could have thrown some light on the question under determination have not been produced. It is true that the defendant- respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that, therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent's case."" Yet again in Smt. Indira Nehru Gandhi vs Shri Raj Narain (AIR 1975 SC 2299), law has been laid down by this Court in the following terms :

The third and the last and a subsidiary submission on behalf of the election petitioner, on election expenses was that Shri Dal Bahadur Singh not having been produced by the original respondent, some sort of presumption arises against the original respondent. I do not think that it is possible to shift a burden of the petitioner on to the original respondent whose case never was that Shri Dal Bahadur Singh spent any money on her behalf. The case of M. Chyenna Reddy vs Ramchandra Rao, (1972) 40 Ele LR 390 at p. 415 (SC) was relied upon to submit that a presumption may arise against a successful candidate from the non-production of available evidence to support his version. Such a presumption, under Section 114 Evidence Act, it has to be remembered, is always optional and one of fact, depending upon the whole set of facts. It is not obligatory."" Further more a party in order to get benefit of the provisions contained in Section 114(f) of the Indian Evidence Act must place some evidence in support of his case. Here the Respondent failed to do so.

The High Court in support of its judgment has relied upon thedecision of this Court in Gopal Krishnaji Ketkar vs Mohamed Haji Latif and Others [AIR 1968 SC 1413], wherein as regards the income from a Dargah the Court amongst other evidence took into consideration the fact that the Appellant in his evidence admitted that he had been enjoying the income of plot in question but did not produce any account to substantiate his contention. Despite admitting that "he had got record of the Dargah Income and that account was kept separately" the Appellant therein had not produced either on his own account or the account of the Dargah as to how the income from the said plot was dealt with. This Court in Gopal Krishnaji case (supra) did not lay down any law that in all situations the presumption in terms of Section 114(f) of the Indian Evidence Act must be

drawn. The said decision, thus, has no application in the fact of the present case.

Curiously the respondent produced copies of some muster rollsbefore this court. If he was in possession of the said documents, it betrays one's imagination as to why the same had not been produced before the Tribunal. As indicated hereinbefore, he filed some documents before the High Court but the same were not accepted. The High Court, therefore, proceeded to pass the impugned judgment only on the basis of the materials relied on by the parties before the Tribunal. The High Court, in our opinion, committed a manifest error in setting aside the award of the Tribunal only on the basis of adverse inference drawn against the Appellant for not producing the muster rolls.

The apex court in another case ie in the case of R.M. Yellatti (supra) in paragraphs 6, 7 and 8 held as under :-

“6. In the case of M.P. Electricity Board (supra), the workmen were engaged by the board on daily wages for digging pits to erect electric polls. It was the case of the board that on completion of the project, the employment was terminated and whenever a similar occasion arose for digging pits, the workmen were re-employed on daily wages and, therefore, their employment was not permanent in nature nor had the workmen completed 240 days of continuous work in a given year. The project jobs came to an end in 1991 and the workmen were never re-employed by the board. Being aggrieved by the said nonemployment, the workmen filed applications under MP Industrial Relations Act seeking permanent employment, primarily on the ground that they have completed 240 days in a year and their discontinuation of service amounted to retrenchment without following the legal requirements. The board denied the allegations made in the application before the labour court. An application was moved before the labour court by the workmen seeking direction to the board to produce the muster roll for the concerned period. However, no other material was produced by the workmen to establish the fact that they had worked for 240 days continuously in a given year. Some of the workmen were also examined before the labour court. However, no document was produced in the form of letter of appointment, receipt indicating payment of salary etc. After examining the entry in the muster rolls, the labour court came to the conclusion that the workmen had not worked for 240 days continuously in a given year, hence, they could not claim permanency nor could they term their non-employment as retrenchment. Aggrieved by the award of the labour court, the workmen preferred an appeal before the industrial court at Bhopal which took the view that since the board has failed to produce the entire muster roll for the year ending 1990, an adverse inference was required to be drawn against the board and solely based on the said inference, the industrial court accepted the case of the workmen that they had worked for 240 days continuously in a given year. Accordingly, the industrial court granted reinstatement to the workmen with 50% back wages. Drawing of such an adverse inference was challenged before this Court by the MP Electricity

Board. In the light of the aforestated facts, this court opined that the industrial court or the High Court could not have drawn an adverse inference for non-production of the muster rolls for the years 1990 to 1992, particularly in the absence of a specific plea by the claimants that they had worked during the period for which muster rolls were not produced. This court observed that initial burden of establishing the factum of their continuous work for 240 days in a year was on the workmen and since that burden was not discharged, the industrial court and the High Court had erred in ordering reinstatement solely on an adverse inference drawn erroneously. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 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 earner, 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 (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 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 facts of each case. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22.11.1988 to 20.6.1994. This period is the period borne out by the certificate (Ex.W1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex.M4 and Ex.M5, which indicated that the workmen had worked for 43 days during the period 21.1.1994 to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the division bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the labour court and confirmed by the learned single judge vide order dated 7.6.2000 in writ petition no.17636 of 2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and Ex.W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No.1, Athani-591304.

In the present case, the defence of the management was that although Ex.W1 refers to the period 22.11.1988 to 20.6.1994, the workman had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact.

Before concluding, we would like to make an observation withregard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government. Accordingly, we find merit in this appeal. We set aside the impugned judgment of the division bench dated 3.9.2000 and we restore the award of the labour court dated 27.10.1999 in I.D. Reference No.59/97. The name of the appellant will be restored as a daily wager in the nominal muster roll.

Accordingly, the appeal is allowed with no order as to costs.”

The aforesaid judgments makes it very clear that the burden of proof is on the claimant to show that he had worked for 240 days in a given calendar year and the burden is discharged only upon the workman for adducing cogent evidence, both oral and documentary and in the present case the labour court has erred in law and facts and granted compensation to the workman in question. Resultantly, the writ petition stands allowed. The impugned order passed by the Labour Court is hereby set aside.”

Besides above, in the similar facts and circumstances, the award of the Labour Court has been set aside by this Court by order dated 23.3.2018 in the case of Nagar Palik Nigam V/s. Banshi (M.P. No.69/2017); Nagar Palik Nigam V/s. Govardhan (M.P. No. 70/2017); and Nagar Palik Nigam V/s. Hussain (M.P. No.72/2017)

In the present case, vide order dated 9.12.2015, the Additional Labour Commissioner, Indore has referred the dispute, whether the termination of the respondent for want of work is legal and if not, then whether he is entitled for reappointment under the provisions of Section 25-H of the Act.

According to the terms of the reference, the Labour Court was required to decide whether the respondent is entitled for reappointment, but by the impugned award dated 27.2.2017, the Labour Court has directed for reinstatement in service which is beyond the terms of reference. On this count also, the impugned award is not sustainable.

Accordingly, this petition deserves to be and is hereby allowed and the impugned award dated 27.2.2017 is hereby set aside.

No order as to costs.