Sardar Alias Tuti vs The Presiding Officer, Industrial Tribunal-Cum-Labour Court-1, Gurgaon & Ors.

KIRTI SINGH, J. (Oral)

This petition under Articles 226 and 227 of the Constitution of India has been filed seeking quashing of the award dated 05.05.2014 (Annexure P-1) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court-1, Gurgaon, in Reference No.522 of 2008, whereby the claim of the petitioner for reinstatement in service with continuity and back wages was dismissed, and for a further direction to respondents No.2 and 3 to reinstate the petitioner in service as a labourer with all consequential benefits.

The pleaded facts of the case are that the petitioner was appointed by respondents No.2 and 3 in the month of June, 1984, on the post of Mali/Forest Guard, and that despite repeated requests, no appointment letter was ever issued to him. He was paid wages at the rate of Rs.16/- per day as applicable to daily wagers. It is his case that during the tenure of over 20 years of his service, he worked with entire satisfaction of the respondents without ever giving them any occasion for complaint, but his services were illegally terminated in the year 2005 without complying with the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947, inasmuch as neither was any enquiry held nor was any compensation granted to him. Aggrieved, he served a demand notice upon the respondents, which yielded no result. Conciliation having failed, the dispute was referred for adjudication, and on the pleadings of the parties, the learned Labour Court framed the issues:- (i) whether there was any relationship of employee and employer between the parties to the dispute? (ii) if issue No.1 is proved in the affirmative, whether the services were dispensed with in an illegal manner and he is entitled to reinstatement in services of respondent with back wages? (iii) whether the workman was gainfully employed? and (iv) Relief.

On an appreciation of the evidence so led, the learned Labour Court held that the onus lay squarely upon the workman to prove that he had remained under the employment of the respondents during the period claimed by him, and that in order to claim the benefit of the provisions of the Act, it was further necessary for him to establish that he had rendered at least 240 days of continuous service in the preceding twelve months. It was found that the documents relied upon by the workman, namely the demand notice (Ex.PW-1/2), the legal notice dated 29.02.2008 (Ex.PW-1/3), the postal receipt (Ex.PW-1/4), and the report of the Labour-cum-Conciliation Officer (Ex.PW-2), did not, in any manner, establish that the workman had remained under the employment of the respondents at any point of time. The plea raised on behalf of the workman that the record pertaining to him had been wrongly weeded out/destroyed by the respondents was also repelled, on the ground that the said plea could avail the workman only if he first established that any such record had, in fact, existed in the custody of the respondents, which he had failed to do. Holding that the case law relied upon by the workman could not advance his case in the absence of proof of the basic fact of his employment, the learned Labour Court answered the reference against the workman and in favour of the respondents, and dismissed his claim vide impugned award dated 05.05.2014.

Learned counsel for the petitioner submits that the termination of the petitioner's services, after more than 20 years of continuous and satisfactory service, without any enquiry, without issuance of any show cause notice, and without payment of retrenchment compensation, is in patent violation of the mandatory provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. It is further submitted that the learned Labour Court committed an error in placing the entire onus upon the workman while ignoring the admitted fact that the respondents themselves failed to produce the service and attendance record of the petitioner, which was in their custody, and that an adverse inference ought to have been drawn against the respondents on this count.

Per contra, learned State counsel supports the impugned award and submits that there never existed any relationship of employer and employee between the parties, the labourers engaged by the forest department being purely casual and seasonal in nature, engaged only when plantation work was available. It is further submitted that the petitioner neither produced any appointment letter nor any other document, such as a muster roll, attendance record or wage register, to substantiate his claim of continuous employment, let alone for the qualifying period of 240 days in any period of twelve months. Accordingly, the absence of any proof, the question of any illegal termination, much less entitlement to reinstatement or back wages, does not arise.

I have heard learned counsel for the parties and perused the paper book with their assistance.

In the present case, the impugned award records a specific finding that it was for the petitioner to have placed on record cogent material, in the nature of an appointment letter, muster roll, attendance record, wage register, or otherwise to establish that he had, in fact, remained under the employment of the respondents, and more particularly, that he had rendered the qualifying period of 240 days of continuous service in the twelve months preceding the date of termination which onus remained undischarged. It was consequently held by the learned Labour Court that the plea of adverse inference for non-production of record by the respondents was also untenable, given that the initial burden of establishing his claim remained unfulfilled by the petitioner.

It is well settled that this Court, while exercising supervisory jurisdiction under Articles 226/227 of the Constitution of India over awards of Labour Courts/Industrial Tribunals, does not sit in appeal over findings of fact, nor does it re-appreciate the evidence to test whether a different view was possible; interference is warranted only where a finding is shown to be perverse, based on no evidence, or vitiated by an error of law apparent on the face of the record. Learned counsel for the petitioner, despite his able assistance, has been unable to point to any such infirmity in the impugned Award. The findings recorded by the learned Tribunal are based on a fair appreciation of the evidence on record and call for no interference.

For the reasons recorded above, this Court finds no ground to interfere with the impugned award dated 05.05.2014 (Annexure P-1). The writ petition is accordingly dismissed.

Pending application(s), if any, stand disposed of accordingly.