Radhey Sham vs Presiding Officer, Industrial Tribunal-cum-Labour Court and Another

The challenge in this petition filed under Articles 226/227 of the Constitution of India is to the award dated 16.11.2005 passed by the Labour Court, dismissing the claim of the petitioner-workmen of reinstatement with back wages.

It is the case of the petitioner-workman that he served respondent No. 2-department w.e.f. 6.3.1992 till his services were illegally terminated on 9.6.1993. The petitioner-workman challenged the action of the department of terminating his service before the Labour Court. His stand was that since he had completed more than 240 days of service with the department, therefore, his services were terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short the Act). His claim was contested by the respondent-department. Their stand was that the petitioner had in fact worked with it from March 1992 to July 1992 and thereafter from December 1992 to June 1993. He had never completed 240 days of continuous service with the department, as such, there was no requirement of complying with the provisions of the Act.

The Labour Court vide the impugned award held that the petitioner-workman had not completed 240 days of service preceding the date of his termination, as such, he is not entitled to any relief. Accordingly, as noticed above, the claim of the workman has been dismissed. We have heard learned Counsel for the parties and have carefully gone through the paper-book as also the impugned award.

The contention of learned Counsel for the petitioner is that the Labour Court has erred in not taking into account the period of service rendered by the petitioner during the period August 1992 to November 1992. The record for the said period though was sought to be produced by the petitioner, but it was not produced by the department on the ground that the said record is missing. Thus, on account of non-production of record, which the department is obliged to maintain in due course, an adverse inference has to be drawn against the department and in favour of the workman.

The argument seems to be attractive in the first instance, but when it is considered in the light of evidence adduced before the Labour Court, we are afraid that the same is of any avail to the petitioner. It is now well settled proposition of law as held in The Range Forest Officer Vs. S.T. Hadimani, , Manager, R.B.I., Bangalore Vs. S. Mani and Others, and R.M. Yellatti Vs. The Assistant Executive Engineer, , that burden of proof is on the workman to show that he had in fact worked for more than 240 days in the year preceding his termination. This burden is discharged upon the workman adducing cogent and sufficient evidence. However, in the instant case, nothing of that sort has been done by the petitioner. Rather a perusal of application dated 20.6.1995 (Annexure P-4), though not properly proved before the Labour Court, it reveals that it was allegedly written by the petitioner to the Executive Engineer, Horticulture Sub Division HUDA, Gurgaon, much before the reference. There is nothing on record which is suggestive of the fact that any such application was moved by the petitioner before the Labour Court seeking production of any record. Muster rolls Ex.M-1 to M-12 were produced by Ronki Ram JE (MW-2) showing that the petitioner had only worked from March 1992 to July 1992 and from December 1992 to June 1993. The version of the department''s witness, supported by the said documents has not been controverted by the petitioner by leading any cogent evidence. Moreover, TMR Nos. 186, 247, 272 and 353 relating to the period August 1992 to November 1992, which were relied upon by the petitioner and so as documents WW-2/A, WW-2/B to WW-2/E were found pertaining to tractor No. HRU-2833 and its driver.

Thus, the same were not related to the petitioner, in any manner. In this backdrop of the situation, the Tribunal has rightly concluded that the petitioner-workman had not worked with the respondent-department from August 1992 to November 1992. Except his statement and that of his coworker WW-3 Sri Chand which is out of guess only, nothing substantial has been produced by the petitioner-workmen either before the Labour Court or before this Court to prove that he had completed 240 days of service with the department. Accordingly, the Labour Court has rightly held that the petitioner is not entitled to any protection as provided u/s 25-F of the Act

In view of the above, we are of the considered opinion that the Labour Court has rightly declined the indulgence. The appeal is wholly without merit and the same is accordingly dismissed, leaving the parties to bear their own costs.