Telu Ram vs Municipal Committee, Bathinda & Ors.

KIRTI SINGH, J. (Oral)

The present writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of the Award dated 31.08.2000 (Annexure P-3) passed by the learned Presiding Officer, Labour Court, Bathinda, in Reference No.238 of 1995, whereby the reference has been answered against the petitioner-workman and the same has been dismissed.

As per the pleaded case, the petitioner joined as a Labourer with respondent No.1-Municipal Committee, Bathinda, in March, 1982, against a permanent job, at a monthly salary of Rs.1,000/-. It is the case of the petitioner that his services were illegally terminated by the respondents on 03.09.1992, without any notice, chargesheet, enquiry or compensation, and that juniors to him were retained in service. Aggrieved thereby, the petitioner served a demand notice, pursuant to which the dispute was referred by the Government for adjudication to the learned Labour Court concerned. Respondent No.1-management contested the claim by filing a written statement, wherein it was admitted that the petitioner was engaged as a daily paid labourer; however, it was denied that his services were ever terminated on 03.09.1992, and it was pleaded that the petitioner had, of his own accord, absented himself from duty without leave or permission, and had thereby abandoned his service, and that consequently no notice, chargesheet, enquiry or compensation was required to be extended to him.

The learned Labour Court, upon appreciation of the pleadings and evidence led by the parties, held that since the petitioner had failed to step into the witness box and state his case on oath despite opportunities granted to him, he had failed to prove that his services were, in fact, terminated by the management. Accordingly, the reference was answered against the petitioner and the claim was dismissed vide the impugned Award. Aggrieved thereby, the petitioner has approached this Court by way of the present writ petition.

Learned counsel for the petitioner submits that the learned Labour Court has failed to appreciate that the Labour Court was bound to decide the reference on merits, on the basis of the material otherwise available on record, notwithstanding the absence of a party or non-leading of evidence by it. In support of his submissions, reliance is placed upon the judgment passed in K.K. Rattan v. Presiding Officer, Labour Court, U.T., Chandigarh, 1993(1) R.S.J. 423 (D). Reliance is also placed upon Norton Engineering Works v. Presiding Officer, Labour Court, Amritsar, 1997(2) SCT 715 to submit that once it stands admitted by the management that the workman was in its service, the plea of resignation or abandonment set up by it has to be affirmatively established by the management, failing which retrenchment in violation of Section 25-F of the Industrial Disputes Act, 1947 is liable to be presumed, and that the said burden cannot be shifted onto the workman merely because he did not step into the witness box. It is accordingly submitted that the impugned Award, having proceeded merely on account of non-production of evidence by the petitioner, without adverting to the material otherwise available on the record, is unsustainable and deserves to be set aside.

Per contra, learned State counsel as also learned counsel for respondent No.1, on the other hand, support the impugned Award and submit that the petitioner never raised challenge to the orders dated 11.08.1999 and 24.08.2000, whereby the evidence of the parties was closed, and is, therefore, estopped from assailing the final Award passed on the basis thereof. It is further submitted that, be that as it may, the reference was not decided against the petitioner merely on account of his absence, but on account of his failure to lead any evidence to even prima facie establish his claim

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

The principal contention raised on behalf of the petitioner is that the Labour Court could not have dismissed the reference merely because the petitioner failed to appear and lead evidence. There can be no quarrel with the proposition that a reference made to the Labour Court is required to be adjudicated on its merits and cannot be dismissed for default simpliciter. The authorities relied upon by learned counsel for the petitioner, including K.K. Rattan (supra), have to be understood in that context. The impugned award, however, does not suffer from the vice sought to be remedied by the said judgments. The Labour Court did not dismiss the reference on account of the petitioner's absence. Rather, repeated opportunities were afforded to both sides to lead evidence. While respondent No.1-Management failed to produce its evidence, resulting in closure thereof on 11.08.1999, the petitioner too failed, despite repeated opportunities, to lead his evidence, which was ultimately closed on 24.08.2000. The Labour Court thereafter proceeded to consider the pleadings and the material available on record and returned a finding on the substantive issue. The reference was thus adjudicated on merits and was not dismissed for default. The principle enunciated in K.K. Rattan (supra), therefore, does not come to the aid of the petitioner.

The more fundamental difficulty in the petitioner’s case lies elsewhere. Respondent No.1, in its written statement, admitted that the petitioner had worked with it as a daily-paid labourer, but specifically pleaded that he had himself remained absent from duty without leave or permission and had thereby abandoned his employment. Thus, the management’s case was not that the petitioner’s service never ended, but that it ended due to his own conduct and not because of any action on the part of the management.

However, before considering who was required to prove abandonment, the petitioner was required to prove the basic facts on which his claim for relief rested, namely, that he had rendered continuous service for 240 days in the preceding twelve months and that his services had actually been terminated by the management on 03.09.1992. The said principle has been settled by Hon’ble the Supreme Court in Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25, and reiterated in R.M. Yellatti v. Executive Engineer, (2006) 1 SCC 106. The mere failure of the management to produce its records or lead evidence does not, by itself, discharge this burden. The petitioner was required, at the least, to step into the witness-box and support his case on oath.The petitioner, however, failed to discharge even this basic burden. Despite the specific stand taken by the management, he neither entered the witness-box nor led any oral or documentary evidence to support his assertion that his services had been terminated on 03.09.1992. The Labour Court, therefore, cannot be faulted for holding that the petitioner had failed to prove that his services were ever terminated. The finding was not based merely on his absence from the proceedings, but on his failure to produce any evidence in support of the very basis of his claim.

The reliance placed by learned counsel for the petitioner upon M/s Norton Engineering Works (supra) also does not advance his case. The said judgment applies where the factum of cessation of service is not in dispute and the management seeks to justify it by pleading resignation or abandonment; in such a case, the burden of proving abandonment lies upon the management. Independently of that principle, however, it is the workman who must first establish, at least by his own testimony, that he had rendered continuous service for 240 days and that an act of termination had in fact taken place a burden settled by the Supreme Court in Range Forest Officer (supra) and one that does not depend on, or await, the question of who must prove abandonment. In the present case, the petitioner failed to discharge that anterior burden. The principle laid down in Norton Engineering Works (supra) cannot, therefore, be used to dispense with it.

It is also significant that the petitioner has not challenged the order dated 11.08.1999 whereby the evidence of respondent No.1 was closed, or the order dated 24.08.2000 whereby his own evidence was closed. He was given sufficient opportunity to prove his case but failed to do so. Having failed to avail the opportunity before the Labour Court, the petitioner cannot now seek to reopen the evidentiary stage in proceedings under Articles 226/227 of the Constitution.

In these circumstances, the finding of the Labour Court that the petitioner failed to prove that his services had been terminated cannot be said to be perverse or vitiated by any material irregularity. The Labour Court considered the pleadings and the material available on record and thereafter returned a finding on the issue which went to the root of the petitioner’s claim. No ground for interference in exercise of the limited writ jurisdiction of this Court is, therefore, made out.

Consequently, finding no merit in the present petition, the same is dismissed. No order as to costs.

Pending miscellaneous application(s), if any, shall also stand disposed of.