AI Structured Summary
Not yet generated for this judgment
Judgment
Honorable Mr. Justice K. Chandru
The petitioner has filed the present writ petition challenging an Award passed by the second respondent Second Additional Labour Court,
Chennai made in I.D. No. 611 of 2004, dated 28.4.2008. By the impugned Award, the labor court had declined to grant any relief to the
petitioner and dismissed the industrial dispute raised by him.
The writ petition was admitted on 3.4.2009. Though the first respondent management was served, they have not chosen to appear either in
person or through counsel.
The case leading to passing the Award are as follows:
The petitioner was employed as a Trailer Driver in the first respondent management. According to the petitioner, he had worked from 10.7.1999.
On 5.12.2003, he was orally informed that his services were no longer required. He had raised an industrial dispute before the Government
Labour Officer-2, Chennai. The said officer as he could not bring about mediation, had submitted his failure report dated 2.4.2004. On the
strength of the failure report, he failed a claim statement, dated 15.12.2004. The labor court had registered the dispute as I.D. No. 611 of 2004
and issued notice to the first respondent. The first respondent had filed a counter statement, dated 11.8.2005. In the counter statement, it was
stated that the petitioner was taken only as a Cleaner on temporary basis. But his services were never satisfactory. The petitioner was not eligible
for any employment. He had already got employment in some other establishment.
Before the labor court, the petitioner examined himself as W.W.1. On the side of the management, one N. Viswanathan was examined as
M.W.1. The petitioner produced two documents and they were marked as Exs.W.1 to W.2. Ex.W.1 was the copy of the legal notice and Ex.W.2
was the copy of the failure report. Since the documents filed before the Labour Court were not filed before this court, this court directed the
original records to be summoned. The Labour Court found that the petitioner has not proved his total length of service in the establishment.
Therefore, no relief can be given to him. The Labour court also relied upon two judgments of the Supreme Court in The Range Forest Officer Vs.
S.T. Hadimani, wherein it was stated that the length of service has to be proved by the workman and that the onus is on him to prove the same.
Mere filing of the affidavit was not sufficient. Further reference was also made to H.U.D.A. Vs. Jagmal Singh, . In that case, it was stated that for
claiming benefit u/s 25-F, the workman has to establish his length of service.
The records produced shows that the petitioner has not taken out any application for production of documents from the first respondent
management. On the other hand, in the cross examination, he had stated that he was not sure when he was taken driving license and that only in
2006, he had renewed the driving license. In the evidence of the first respondent management it was stated that though the petitioner''s service was
unsatisfactory, no memos were given.
On the question of the burden of proof in proving the service of a person who had worked with the employer for specified number of days, the
Supreme Court vide its judgment in Chief Engineer, Ranjit Sagar Dam and Another Vs. Sham Lal, had held as follows:
In a large number of cases the position of law relating to the onus to be discharged has been delineated. In Range Forest Officer v. S.T.
Hadimani it was held as follows: (SCC p. 26, paras 2-3)
In the instant case, dispute was referred to the Labour Court that the respondent had 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 10-8-1998 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. Pratamsingh Narsinh Parmar. 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 favor 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 said decision was followed in Essen Deinki v. Rajiv Kumar.
In Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan the position was again reiterated in para 6 as follows: (SCC p. 163)
It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It
was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an
affidavit. It is only his own statement which is in his favor and that cannot be regarded as sufficient evidence for any court or tribunal to come to the
conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani.
No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a
particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed.
In Municipal Corpn., Faridabad v. Siri Niwas it was held that the burden was on the workman to show that he was working for more than 240
days in the preceding one year prior to his alleged retrenchment. In M.P. Electricity Board v. Hariram the position was again reiterated in para 11
as follows: (SCC p. 250)
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 Municipal Corpn., Faridabad v. 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: (SCC p. 198, para 15)
A court of law even in a case where provisions of the 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 consideration is the background of facts involved in the lies. 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.
In Manager, Reserve Bank of India v. S. Mani a three-Judge Bench of this Court again considered the matter and held that the initial burden of
proof was on the workman to show that he had completed 240 days of service. The Tribunal''s view that the burden was on the employer was
held to be erroneous. In Batala Coop. Sugar Mills Ltd. v. Sowaran Singh it was held as follows: (SCC pp. 484-85, para 13)
So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officer v.
S.T. Hadimani the onus is on the workman.
The position was also examined in detail in Surendranagar District Panchayat v. Dahyabhai Amarsinh and the views expressed in Range Forest
Officer1, Siri Niwas5 and M.P. Electricity Board6 cases were reiterated.
In R.M. Yellatti v. Asstt. Executive Engineer the decisions referred to above were noted and it was held as follows: (SCC p. 116, para 17)
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 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 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.
The above position was again reiterated in a recent judgment in ONGC Ltd. v. Shyamal Chandra Bhowmik.
In the light of the above, the impugned Award cannot be found fault with. There are no merits in the case filed by the petitioner. Hence the writ
petition will stand dismissed. No costs.