Pushpa vs The Labour Court, Bikaner

The subject matter of assailment in the instant appeal is the judgment and order dated 12.7.2013 passed in S.B. Civil Writ Petition No. 8668/2013 negating the impeachment of the award dated 17.8.2012 passed by the learned Labour Court, Bikaner in Reference Case No. 49/2000.

We have heard Mr. Kuldeep Mathur, learned counsel appearing on behalf of the appellants and Mr. S.S. Ladrecha, learned Additional Advocate General.

The skeletal facts are that the appellants/writ petitioners were appointed as Sweeper (Class IV employee) with the respondent Municipal Council on 1.1.1995 on daily wage basis and as alleged by them, their services were terminated verbally on and from 31.8.1995. Contending that meanwhile though they having completed 240 days of service in a calendar year preceding 31.8.1995, the respondent Council did do away with their services without complying with the mandatory requirements of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 (for short hereinafter referred to as "the Act") and Rules 77 & 78 of the Industrial Disputes Rules, they raised an industrial dispute, which was eventually referred to the learned Labour Court, Bikaner as above. While they reiterated these averments before the learned Labour Court, the respondent Council in its written statement in substance asserted that the appellants/writ petitioners had not completed 240 days of service in a calendar year prior to 31.8.1995 as claimed. According to the respondent Council, they were appointed on recommendation of one ward member and their services stood terminated after April, 1995.

In the reference proceedings, both sides adduced evidence, oral and documentary and eventually, by the award referred to hereinabove, the learned Labour Court, Bikaner answered the reference in the negative holding that the appellants/writ petitioners had failed to prove that they had served for a period of 240 days or above in a calendar year prior to 31.8.1995 and that thus, the termination of their services did not amount to retrenchment within the meaning of Section 2(oo) of the Act. It held with reference to the evidence on record that it was not established that the appellants/writ petitioners had been rendering their services after April, 1995 and it was not proved as well that their services were terminated on and from 31.8.1995. Being aggrieved, the appellants/writ petitioners invoked the writ jurisdiction of this court for redress.

The learned Single Judge, as the impugned judgment and order would reveal, on an exhaustive analysis of the pleaded facts and documents on record as well as the legal principles applicable, sustained the award. In course of the adjudication, the learned Single Judge noted that the learned Labour Court had, with due regard to the evidence on record, held that the appellants/writ petitioners as daily wage employees had rendered service for 84, 82 �, 67 �, 84 and 68 days between January, 1995 to April, 1995. That the appellants/writ petitioners had failed to prove by producing any credible evidence that they had completed 240 days of service in a calendar year preceding 31.8.1995 was recorded as well. Referring to the decisions of the Hon''ble Apex Court in The Range Forest Officer Vs. S.T. Hadimani, and R.M. Yellatti Vs. The Assistant Executive Engineer, , the learned Single Judge concluded that burden of proving that they had worked for 240 days or above in one calendar year in the facts & circumstances of the case, was on the appellants/writ petitioners and they having failed to discharge the same, their plea of being retrenched in violation of the provisions of Sections 25F, 25G and 25H of the Act was untenable.

Mr. Mathur, learned counsel for the appellants/writ petitioners, has emphatically argued that the appellants/writ petitioners having been engaged on daily wage basis, had no access to the relevant records of the respondent Council to procure the same and prove that they in fact had worked for 240 days or more in a calendar year prior to 31.8.1995 and, thus, the learned Labour Court and the learned Single Judge ought to have, in view of the omission on the part of respondent Council to produce the relevant official record to the contrary, drawn an adverse inference against it (respondent Council) qua this aspect of dissension. According to the learned counsel, in the attendant facts & circumstances of the case, it having been admitted by the respondent Council that the appellants/writ petitioners had been engaged by it with effect from January, 1995, their plea of having worked for 240 days or more in a calendar year prior to 31.8.1995, ought to have been sustained and their retrenchment in violation of Sections 25F, 25G and 25H of the Act ought to have been adjudged illegal, null and void.

Mr. S.S. Ladrecha, learned A.A.G., has argued that the appellants/writ petitioners having failed to prove that they had worked for 240 days or more in a calendar year prior to their termination of service, the learned Labour Court was perfectly justified in answering the reference in negative. According to the learned counsel, the findings recorded by the learned Labour Court and the learned Single Judge are based on records and having regard to the constricted scope of scrutiny in the instant appeal, no interference with the impugned judgment and order is called for.

Upon hearing learned counsel for the parties and on a consideration of the pleadings and the documents on record, we are inclined to sustain the contentions raised on behalf of the respondent Council. A bare perusal of the award rendered by the learned Labour Court would ex facie reveal that the conclusions, as adverted-to hereinabove, are not only founded on the materials on record but also on a correct appreciation thereof. It is inter alia evident from the testimony of the witness of the respondent Council made with reference to the attendance register that none of the appellants/writ petitioners had worked for 240 days or more in a calendar year and that in fact they had been engaged as daily wage ''Safai Karamchari'' upto the month of April, 1995. That after April, 1995, the respondent Council had not engaged any such daily wage ''Safai Karamchari'', had been stated by this witness in the categorical terms. The witness, thus, claimed that the engagement of the appellants/writ petitioners ceased automatically after April, 1995 and that as no muster roll for the period during May, 1995 to August, 1995 was, thus, available vis-a-vis them, the same could not be produced in the court.

The Hon''ble Apex Court in Range Forest Officer''s case (supra), while dwelling on the aspect of 240 days in the context of Section 25B and 25F of the Act, did enounce that filing of an affidavit by a claimant to the effect that he had worked for such number of days in a calendar year per se cannot be regarded as sufficient evidence for any court or tribunal to record its conclusion on the basis thereof. Elaborating further, their Lordships in R.M. Yellatti''s case (supra) following an intense survey of the various judicial pronouncements in this regard, not only did reiterate the above enunciation but also deduced that mere non-production of the muster roll in absence of any imputation of suppression by the claimant workman would not provide a ground for the tribunal to draw an adverse inference against the management. That the burden of proof is on the claimant to show that he had worked for 240 days in a given year, was reiterated.

On a cumulative consideration of all essential aspects, both factual and legal, we are thus of the unhesitant opinion that the adjudication administered by the learned Labour Court, Bikaner and affirmed by the impugned judgment and order does not warrant reversal. To reiterate, both the forums have analytically scrutinized the materials on record and the findings are fully founded thereon. No error of any fundamental principle of law vitiating the determinations made, is decipherable.

In this view of the matter, in our estimate, the appeal lacks in merit and is, thus, dismissed.