Public Health Engineering Department and Others vs Ambika Prasad Yadav

K.K. Trivedi, J.—This petition under Article 227 of the Constitution of India is directed against the order dated 23.6.2000 passed by the Labour Court and order dated 5.12.2000 passed by the Industrial Court. By the said orders, the Labour Court allowed the application filed by respondent -workman u/s 31(3) of the MP. Industrial Relations Act, 1960 (hereinafter referred to as the Act for brevity) and directed the petitioners herein to classify the respondent as a permanent employee. The appeal filed against the said order has been dismissed by the Industrial Court and, therefore, this writ petition is required to be filed. Facts giving rise to filing of the writ petition in brief are that the respondent was engaged as a daily wager and he worked with the petitioners. Since he has completed more than 240 days in a calendar year, he approached the Labour Court Jabalpur by making an application u/s 31(3) read with section 61 of the Act in the year 1996 for his classification. The Labour Court entertained the application of the respondent, issued notices to the petitioners and a written statement was filed by the petitioners denying the claim made by the respondent. The Labour Court recorded the evidence and thereafter came to the conclusion that though specifically the respondent could not adduce any evidence that he has worked for more than 240 days in a calendar year, but from the documents produced by the petitioners, it was proved that the respondent has worked for more than 240 days in a calendar year at least in the year 1995 and was in the employment continuously, therefore, allowed the application of the respondent and directed that the respondent be classified as a permanent employee after six months with effect from 1.7.1991 and to pay him the wages of a permanent employee from the date of filing of the application before the Labour Court i.e. with effect from 24.5.1996. The petitioners herein being aggrieved by this order, filed an appeal before the Industrial Court. The said appeal was heard by the appellate authority and was decided by order dated 5.12.2000. However, nothing was done thereafter by the petitioners and they kept quite. The order passed by the Labour Court was not complied with though according to the petitioners certain correspondence was going on and certain orders were issued that the respondent would not be entitled to any arrears of salary since he was already paid the salary fixed for a permanent labourer. When the respondent was not being granted the benefit of the order passed by the Labour Court, he approached the Labour Court for execution of its order and when the proceedings were initiated in that respect, certain objections were raised. Ultimately, the matter came up in a writ petition before this Court at the behest of the respondent where the order was passed by the Division Bench of this Court to implement the order and decide such claim. As this was not being done, a writ petition was required to be filed by the respondent before this Court being Writ Petition No. 10430/2010 and as soon as the notices of the said writ petition were issued to the respondents in the said writ petition, they thought it better to challenge the order of the Labour Court and Industrial Court and they have filed this writ petition.

This Court has entertained the writ petition though the same was filed belatedly and issued notices to the respondent. A Division Bench of this Court has granted an interim stay subject to the compliance of provisions of section 65(3) of the Act. This is how both the writ petitions were tagged together and heard together.

The respondent has been served and an application for dismissal of the writ petition has been filed stating that in view of the order passed by this Court in another writ petition, wherein while considering the submission made with respect to the non-implementation of the order of the Labour Court for want of vacancy or post was rejected by this Court and such an order has been affirmed by the Apex Court and thus, it is contended that in fact on lame excuses, the order of the Labour Court was not implemented and unnecessarily to harass the respondent, the present writ petition has been filed only when the respondent has sought the implementation of the orders of the Labour Court and Industrial Court by way of filing a writ petition before this Court. It is, thus, contended that the writ petition is misconceived apart from the fact that it is hopelessly delayed and is liable to be dismissed on account of laches on the part of petitioners, with costs.

Heard learned Counsel for the parties at length and perused the record.

True it is that once the petition is admitted, the same is not to be dismissed only on the ground of delay and laches on the part of petitioners, but it is also true that the fact relating to inordinate delay in approaching this Court against the orders of the Labour Court and Industrial Court, are required to be taken note of while considering the claim made by the petitioners, even on merits of the writ petition.

Learned Government Advocate has contended that in view of the law well settled, it was necessary on the part of the respondent to prove his own case as claimed in the application filed before the Labour Court. Reading the application submitted by the respondent, contained in Annx.P/1 at page 48 of the paper book, learned Government Advocate has tried to emphasize that the respondent himself was claiming that he was working as a driver, but he was being shown in the office record as a daily rated cleaner. It was contended by the respondent that in terms of the circular of the State Government, the respondent was required to be regularised, but he was not regularised. On the other hand, he was attached in the office of District Magistrate. It was necessary on the part of the respondent to prove such a claim by adducing evidence. These facts as alleged by the respondent were denied in written statement filed by the petitioners wherein it was said that the respondent had not worked for more than 240 days continuously with effect from 1.7.1991 The circular said to be issued by the State Government were not applicable in case of the respondent as his appointment was after the cut off date. The allegations as were made with respect to asking the respondent to work in other department were specifically denied. Thus, in absence of any such evidence available on record of the Labour Court it was not open to the Labour Court to hold that the respondent had worked for more than 240 days in a calendar year and, thus, was entitled to regularisation. Referring to the findings recorded by the Labour Court in para 6 of the impugned order of the Labour Court, learned Government Advocate has tried to show that there was absolutely no evidence produced by the respondent with respect to his working and, therefore, finding with respect to issue No. 1 could not have been given in favour of the respondent.

In fact, two issues were framed by the Labour Court, one whether the workman before the Labour Court was appointed in the services of the petitioners and whether he was entitled to be classified and if yes, from which date. The Labour Court has taken note of the documentary evidence produced by the petitioners as Ex.D/1 which is in fact a chart of working with respect to the respondent herein. The said chart is proved by the evidence of the petitioners. The period of working of the respondent was indicated in the said chart which is available on record of the writ petition as Annx.P/3, Page 57 of the paper book, which indicates that in the year 1995 according to the petitioners themselves, the respondent has worked for 281 days. This chart further indicates that the respondent has worked in the year 1996 for 270 days, in the year 1997 for 358 days, in the year 1998 for 356 days and again in the year 1999 to 2000 for 358 days. It was said that he was still working. If this was the situation indicated in the chart, which was said to be produced before the Labour Court by the petitioners, how could it be said that such an evidence was not admissible or that it was not to be relied on. If it was claimed by the respondent that he was working with effect from 1.7.1991 and if there was a statement made on oath by him that he was paid the wages by the petitioners which documents were available with the petitioners, there was nothing indicated in the evidence that such documents were not available with the petitioners or that such documents were never maintained by them in their office. In fact, a definite statement was required to be made, but instead of making such a statement, the reliance was placed on a document prepared and submitted by the petitioners themselves. If such a document was accepted by the Labour Court in support of the claim made by the respondent, how could it be said that such a finding recorded by the Labour Court was perverse.

Learned Government Advocate has relied on the case of Krishna Bhagya Jala Nigam Ltd. Vs. Mohammed Rafi, and has contended that there was a folly on the part of the Labour Court in considering that the evidence as placed by the petitioners herein was sufficient to prove the claim made by the respondent. It is contended that the burden of proving such a fact was on the respondent which he utterly failed to discharge and, therefore, in absence of cogent evidence, such a decision could not have been rendered in favour of the respondent by the Labour Court. With great respect to the law laid down by the Apex Court, it is to be held that the facts and circumstances in the case relied on by the learned Government Advocate and the present case in hand are quite different. The Apex Court was dealing with such cases where there was no evidence produced by the workman and there was no evidence in respect of working of the workman produced by the employer. Herein in the case in hand though the respondent-workman has completely failed to produce such evidence, but he was helped by the employer by producing such evidence on his behalf not only orally, but by way of chart of working duly certified by the employer before the Labour Court. If such a piece of evidence was taken note of and the contentions of the workman were accepted by the Labour Court, in the considered opinion of this Court, the Labour Court was justified in giving such a finding. In none of the cases, the Apex Court has said that if such contentions raised by the workman though denied in the written statement are proved by the documentary evidence produced by the employer, the same cannot be taken note of by the Labour Court. In view of this, the Law laid down by the Apex Court in the case of Krishna Bhagya Jal Nigam Ltd. (supra), would not be attracted in the present case.

Similarly, in the case of G.M., B.S.N.L. and Others Vs. Mahesh Chand, again the same facts were there where it was denied that the workman has worked for more than 240 days and there was no evidence produced by the workman or the employer with respect to the said working. Again in view of the law laid down by several cases in the similar facts and circumstances, the Apex Court has said that there was no evidence produced by the workman in respect of working and, therefore, it was not open to the Labour Court to accept the pleas of the workman. As has been pointed out herein above, in fact the workman was helped by the petitioners themselves by producing the evidence and by withholding the other piece of evidence by them by which they could have demonstrated that the workman has not worked for 240 days in a calendar year. By the chart produced by the petitioners themselves, since it was proved that particular in the year 1995 and onwards, the respondent-workman has worked for more than 240 days in a calender year, if his application made for classification was allowed by the Labour Court, again in the considered opinion of this Court, no wrong was committed by the Labour Court. Thus, the reliance placed by the learned Government Advocate in the aforesaid laws laid down by the Apex Court is totally misconceived in view of the peculiar facts and circumstances of the present case.

These aspects were taken note of by the Appellate Court and the Industrial Court has categorically held that there was no wrong committed by the Labour Court in passing the order in favour of the respondent. Since such findings were rightly affirmed, this Court is not required to interfere in the well reasoned finding of the Industrial Court. Consequently, the writ petition fails and is hereby dismissed. However, the respondent would be entitled to the payment of wages from the date of making of the application before the Labour Court as has been ordered by the Court below. Now the order passed by the Labour Court be complied with. There shall be no order as to costs.