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Judgment
Valmiki J Mehta, J.
W.P. (C) No. 96/1997
The challenge by means of this writ petition under Article 226 of the Constitution of India is to the impugned Award dated 16.8.1996 passed by the Labour Court dismissing the claim of the workmen on the ground that the workmen have failed to discharge the onus that they have worked for 240 days with respondent No. 2.
Admittedly, the only proof relied upon by the workman of having worked for 240 days is a self-serving affidavit. It has been held by the Supreme Court in the case of Chairman, Oil and Natural Gas Corporation Ltd. and Another Vs. Shyamal Chandra Bhowmik, that mere affidavit of self serving statement made by the workman is not sufficient to discharge the burden on the workman that he has completed 240 days of service. The Supreme Court has held that in such a case there is no question of shifting of onus and which would arise only when the evidence is led by the workman. Since in the present case, no evidence has been led by the workmen of having worked for more than 240 days, a fact which was denied by the respondent No. 2, I do not find any ex-facie illegality or perversity in the Award for interference for exercising the jurisdiction of this Court under Article 226 of the Constitution of India. I may also note that since the Award is way back of the year 1996, the workmen would obviously in the meanwhile sought and obtained employment elsewhere. Since they would have been gainfully employed elsewhere it is for this reason that they are not contacting their Advocate who has argued the case on the basis of the record available.
In view of the above, I do not find any merit in the petition which is therefore dismissed, leaving the parties to bear their own costs.
W.P. (C) No. 881/1997
The challenge by means of this writ petition is by the Management to the same impugned Award whereby respondent No. 3 herein succeeded and whose reinstatement was directed by the impugned Award.
The only piece of evidence relied upon by the Labour Court to hold that the workman has worked for 240 days is self serving affidavit. As already stated above, Supreme Court in the case of Chairman, Oil and Natural Gas Corporation Ltd. (supra) has held that a self serving affidavit is not evidence in the eyes of law to discharge the proof of onus to work for 240 days. It is not understood as to how the Labour Court arrived at a finding on the basis of mere ipse dixit and self serving affidavit. There is clear case of illegality in the impugned Award when it holds that the workman has discharged its onus of proof. The impugned Award is therefore liable to be set aside and is therefore set aside as such.
I may note that even in this case, the respondent No. 3 has not contacted his Advocate who has argued on the basis of the record. A peculiar fact is that although the workman succeeded, no application was filed u/s 17(b) for taking benefit of the Award. This is surely for the reason that the workman would be gainfully employed elsewhere and that too may be at better terms. It is for this reason that neither the application u/s 17(b) was filed nor the workman has chosen to contact his Advocate.
The petition is therefore allowed and the impugned Award dated 16.8.1996 is set aside to the extent that it grants reinstatement with full back wages to Sh. Gir Raj Kishore/respondent No. 3.
The petition is therefore disposed of as allowed leaving the parties to bear their own costs.