Vinod Kumar vs M/s Escorts Ltd. & Anr.

Kirti Singh, J.

The present writ petition has been filed under Articles 226/227 of the Constitution of India for quashing of the Award dated 6.11.2012 (Annexure P-9) passed by the learned Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad (hereinafter referred to as, ‘the Labour Court’), in Reference No.83/2005, whereby the claim of the petitioner-workman for reinstatement in service with continuity and full back wages has been dismissed.

As per the pleaded facts, the petitioner was appointed as Helper on 1.10.1988 on daily wages by respondent No.1-management. He was initially posted in the canteen and was thereafter shifted to other places of work, such as the machine shop and the paint shop. He continued to work till 30.4.1999, on which date his services were allegedly terminated illegally, without notice, retrenchment compensation or any opportunity of hearing, and in violation of the mandatory provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as, ‘the Act’). His last drawn wages were stated to be Rs.3,500/- per month. A demand notice was raised on his behalf, which culminated in Reference No.83/2005 before the Labour Court, seeking reinstatement with continuity of service and full back wages.

Respondent No.1-management contested the reference and, in its written statement, pleaded that the petitioner was never engaged on 1.10.1988 as alleged. It was pleaded that the petitioner had earlier worked intermittently, as a casual worker under the canteen contractor, up to 6.3.1993, and that thereafter he was for the first time engaged directly by the management on 14.11.1995, as a casual/temporary worker on daily wages, pursuant to a Casual Employee Check List. His engagement was purely temporary, extended from time to time depending upon the exigencies of work, and came to an automatic end by efflux of time on each occasion, namely, on 15.5.1996, on 31.3.1998 and finally on 30.11.1998. It was denied that the petitioner was ever paid wages of Rs.3,500/- per month; it was pleaded that he was paid on daily wages, lastly at the rate of Rs.72/- per working day. It was further pleaded that the petitioner never worked continuously and that, in no calendar year, had he completed 240 days of service, as required under Section 25--B of the Act.

In the rejoinder filed on behalf of the petitioner, the specific pleadings of the respondent-management regarding his earlier casual engagement with the canteen contractor, and the dates on which his temporary engagements with the management came to an end by efflux of time, were not specifically traversed; the relevant paragraphs were merely denied as “wrong”, without any further particulars.

On the pleadings of the parties, the following issues were framed by the learned Labour Court:-

On issue Nos.1 and 2, the learned Labour Court held that the petitioner had failed to prove that he was in the continuous employment of the respondent-management with effect from 1.10.1988, as alleged. The casual employee check lists produced by him, Ex.W1/A to Ex.W1/F, did not establish continuous work from 1988 onwards, and the copies of the attendance registers relied upon by him were found to be neither authentic nor conclusive. Relying upon the law laid down by the Hon’ble Supreme Court in Range Forest Officer v. S.T. Hadimani, 2002 LLR 339, and Rajasthan State Ganganagar Sugar Mills Ltd. v. State of Rajasthan and another, 2004 SCC (L&S) 1055, the learned Labour Court held that mere filing of an affidavit, by way of a self-serving statement, is not sufficient to discharge the burden of proving 240 days’ continuous service in the year preceding the alleged date of termination. It was further observed that since the specific pleadings of the respondent-management, regarding the petitioner’s earlier casual engagement with the canteen contractor and the dates on which his temporary engagements ended by efflux of time, had not been specifically denied in the rejoinder, the same amounted to an admission. On this basis, the learned Labour Court held that it was not proved that the petitioner was directly employed by the respondent-management on 1.10.1988, and that he was to be taken as an employee of the company only with effect from 14.11.1995.

On the question of illegal termination, the learned Labour Court held that, apart from the petitioner’s own bare statement, there was no independent proof to establish that his services were illegally terminated. On the contrary, the documents on record showed that the petitioner had worked intermittently, which was consistent with his status as a casual employee whose engagement came to an end, on each occasion, by efflux of the period for which he had been engaged; there was, therefore, no question of illegal termination.

As an additional and independent ground, the learned Labour Court noticed that though the termination was alleged to have taken place on 30.4.1999, the demand notice was admittedly raised only in or around September, 2004, i.e., after a delay of about five-and-a-half years, which delay remained wholly unexplained. Relying upon Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd., Sirhind Mandi and another, 1999(1) LLJ 767, the learned Labour Court held that such inordinate and unexplained delay was, by itself, an additional factor warranting rejection of the claim.

It was further noticed that, as per the Certified Standing Orders of the company, Ex.M-1, the management was entitled to engage casual workers from time to time, depending upon the exigencies of work; the petitioner did not belong to any other category of employment and held no appointment letter. On issues No.1 and 2, it was accordingly held that the petitioner was not an employee of the respondent-management prior to 14.11.1995 and that his services had not been illegally terminated. Issues No.3 and 4 were answered against the respondent-management, holding that the petitioner was a “workman” within the meaning of Section 2(s) of the Act and that the reference was maintainable; however, in view of the findings on issues No.1 and 2, the claim was dismissed by the impugned Award.

Learned counsel appearing for the petitioner has assailed the impugned Award, inter alia, on the ground that the petitioner had, in fact, worked continuously with respondent No.1 from 1.10.1988 onwards, initially in the canteen and thereafter in other departments of the factory, and that the learned Labour Court has erred in discarding the material produced by the petitioner and in placing undue reliance upon the delay in raising the demand, which delay, it is submitted, was neither material nor sufficient to defeat an otherwise just claim.

Learned counsel appearing for the respondents, on the other hand, has supported the impugned Award and submitted that the findings recorded by the learned Labour Court are based on a proper appreciation of the pleadings and the evidence on record; that the petitioner failed to discharge the burden of proving 240 days’ continuous service preceding the alleged date of termination, in the year immediately preceding 30.4.1999; that the specific pleadings regarding the petitioner’s casual engagement, first with the canteen contractor and thereafter directly with the management, having gone unrebutted in the rejoinder, were rightly treated as admitted; and that the inordinate and unexplained delay of over five years in raising the demand was an independent and sufficient ground for rejection of the claim.

I have heard learned counsel for the parties and have perused the impugned Award as well as the material available on record.

This Court, while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, does not ordinarily sit in appeal over the findings of fact recorded by the Labour Court. Interference is warranted only where the findings are shown to be perverse, based on no evidence, or suffer from an error of law or jurisdiction. A different view on appreciation of evidence, by itself, would not furnish a ground for interference in writ jurisdiction.

In the present case, the principal claim of the petitioner was that he had been continuously employed by respondent No.1-management with effect from 1.10.1988 and that his services were illegally terminated on 30.4.1999. The learned Labour Court, upon consideration of the evidence led by the parties, found that the petitioner had failed to establish continuous employment from 1.10.1988. The casual employee check lists relied upon by him did not establish such continuous employment and the attendance records produced by him were also found to be neither authentic nor conclusive.

The finding of the learned Labour Court cannot be said to be perverse. The management had specifically pleaded that the petitioner had initially worked intermittently under the canteen contractor and that he was engaged directly by the management only with effect from 14.11.1995 as a casual/temporary worker on daily wages, with his engagements being extended from time to time and coming to an end on the dates specifically pleaded by the management. These material averments were not specifically traversed in the rejoinder. The absence of a specific traverse was a relevant circumstance which the learned Labour Court was entitled to take into consideration while appreciating the rival versions of the parties. On an overall consideration of the pleadings and evidence, the Labour Court consequently concluded that the petitioner had failed to establish that he was directly employed by the management from 1.10.1988.

Even otherwise, the petitioner also failed to establish the requisite continuous service for attracting the statutory protection available in case of retrenchment. The Hon'ble Supreme Court in Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25, has held that a mere statement or affidavit of a workman is not, by itself, sufficient to establish completion of 240 days of service. The principle was reiterated in Surendranagar District Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC 750. In the present case, the Labour Court did not reject the petitioner's claim merely on the basis of a bald denial by the management; rather, it considered the documentary material produced by both sides, including the casual employee check lists and attendance records, and found that the petitioner had failed to establish the requisite period of continuous service preceding the alleged termination. No perversity or error of law has been shown in this finding.

Once the petitioner's assertion of continuous employment from 1.10.1988 was not established, his further assertion that his services were illegally terminated on 30.4.1999 could not be accepted merely on the basis of his own statement. The Labour Court noticed that the material on record disclosed intermittent casual engagements and that there was no satisfactory independent evidence establishing an illegal termination by the management on the date alleged. The conclusion that there was consequently no illegal termination warranting relief under the Industrial Disputes Act, 1947, is a finding based upon appreciation of evidence and does not call for interference in exercise of writ jurisdiction.

There is also an additional circumstance which weighs against the petitioner's claim. The alleged termination took place on 30.4.1999, whereas the demand notice was raised only in or around September, 2004, after a lapse of about five-and-a-half years. No satisfactory explanation for such delay has been furnished. In Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd., Sirhind Mandi and another, 1999 (1) LLJ 767, the Hon'ble Supreme Court considered the effect of delay in raising an industrial dispute, while in Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455, it was held that an inordinate and unexplained delay may render an industrial dispute stale and may constitute a relevant consideration in declining relief, notwithstanding the absence of a prescribed period of limitation under the Industrial Disputes Act.

The aforesaid principle, however, is being applied in the present case only as an additional circumstance and not as an independent statutory bar to the reference. The primary reason for upholding the Award remains the petitioner's failure to establish the alleged continuous employment and illegal termination on the basis of the evidence available on record. The unexplained delay of about five-and-a-half years further reinforces the conclusion reached by the learned Labour Court.

The findings recorded by the learned Labour Court, therefore, emerge from a proper consideration of the pleadings and evidence and cannot be characterised as perverse, based on no evidence or suffering from any jurisdictional error. The petitioner has failed to demonstrate any violation of a settled principle of law warranting interference by this Court under Articles 226 and 227 of the Constitution.

For the reasons recorded above, this Court finds no ground warranting interference with the impugned Award dated 6.11.2012 (Annexure P-9) passed by the learned Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad, in Reference No.83/2005.

Consequently, the present writ petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.