Calcutta High Court (Appellete Side)
Ekramul Haque And Others vs The State Of West Bengal & Others on 18 May, 2017
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 5878 (W) of 2013
Ekramul Haque and Others
Vs.
The State of West Bengal & Others.
For the petitioners : Mr. Sujash Ghosh Dastidar, Advocate
Ms. Sankari Roy, Advocate
Md. Adnan Ahmed, Advocate
For the State respondents : Mr. Narayan Chandra Bhattacharya,
Advocate
Mr. Satanu Mitra, Advocate
For the respondent no. 2 : Mr. Sundarananda Pal, Advocate
Mr. L. K. Pal, Advocate
Heard on : 24.02.2017, 20.03.2017, 24.03.2017,
12.05.2017
Judgement on : 18.05.2017
Sambuddha Chakrabarti, J.:
Petitioners no. 1 to 37 and the husbands of the petitioners no. 38 and 39 joined M/s. Indian Iron and Steel Company Limited (IISCO, for short) at Kulti in October 1971 as workmen. In the year 1972, it became a subsidiary of Steel Authority of India and a Government of India enterprise.
The petitioners state that all the workmen were employed as dependent members of the family of the existing employees. After appointment they were posted as unskilled labourer in different departments. Their names were notified in the notice board without, however, any separate letters of appointment. But they were given separate identity cards. The petitioners submitted the relevant forms under the Payment of Gratuity Act nominating the person for getting gratuity in the event of their death.
By an order dated January 1, 2003, IISCO circulated a Voluntary Retirement Scheme (VRS, for short) for the employees at the Kulti works. Subsequently by another circular time to file applications for voluntary retirement was extended up to March 31, 2003. It was further notified that employees who would not opt for voluntary retirement by the last date would be eligible only for the retrenchment compensation as per the Government of India memorandum, dated May 5, 2000. The petitioners no. 1 to 37 and husbands of the petitioners no. 38 and 39 had to apply under the VRS. IISCO informed that their applications had been accepted and they were to retire with effect from March 31, 2003.
The VR compensation and gratuity were paid in May, 2003, counting service period of the petitioners no. 1 to 37 and the husbands of the petitioners no. 38 and 39, from 1974 instead of 1971 till their retirement on March 31, 2003. The short payment would be evident from the payment vouchers made by IISCO. After making protests, these workmen approached the labour commissioner for conciliation proceedings. The conciliation proceeding failed and, thereafter, the Government made a reference of the dispute before the 9th Industrial Tribunal, Durgapur, for adjudication on the point whether the claim of workmen during the alleged apprenticeship period in the company should be taken into account for calculation of their retirement benefits.
Before the Tribunal, both the parties filed their respective documents pleadings, and adduced evidence. The Industrial Tribunal passed an Award, dated July 10, 2012, dismissing the proceeding under Section 10 of the Industrial Disputes Act on contest. The Tribunal found that the workmen had failed to substantiate their case and were not entitled to get any Award as sought for. The said Award by the Tribunal is the subject matter of challenge in the present writ petition.
On behalf of IISCO, i.e., the respondent no. 2, the Deputy General Manager (Law) of the Steel Authority of India Limited, (SAIL, for short) IISCO Steel Plant, affirmed an affidavit-in- opposition. He has taken a point that after the merger of IISCO with the SAIL it has become a unit of SAIL and has been renamed as Steel Authority of India, IISCO Steel Plant. According to the respondent no. 2, the petitioners including the husbands of petitioners no. 38 and 39, like about 350 more such employees, were engaged as Full Term Apprentices (FTA, for short) between 1974 and 1978. They submitted copies of their appointment letters as FTA as per the provisions of the Apprenticeship Act, 1961. Since, they were engaged as apprentices, they get stipend during such period of apprenticeship. After completion of the period they were absorbed by the company as fresh entrants. It had been submitted that since such employees who joined as FTA and remained as apprentices till completion of such period, the period spent as apprentices was not taken into consideration for the purpose of giving them retiral benefits.
It has been a further contention of the respondent no. 2 that since all the petitioners have taken their retiral benefits and were satisfied about it, they did not raise any objection in any manner whatsoever about the calculation and after the master and servant relationship between them had ceased, they could not raise any industrial dispute. In the written statement filed by the respondent no. 2 in the Tribunal, it was specifically mentioned that these employees had submitted their VR applications. It was found that the petitioners submitted copies of their appointment letters showing that they were FTAs for a period of four years and after completion of that period they were engaged on the company's roll as fresh entrants. After about a lapse of three years all of a sudden they raised an industrial dispute alleging that they might be treated as regular employees during the apprenticeship period and claimed for full retiral benefits to be given to them for the said apprenticeship period.
From perusal of the service record cards it appears that the petitioners were regularized in the permanent roll of the company after they had completed the apprenticeship period. All the relevant documents and cards were issued by the security personnel manually at the gate without verifying any data from the company's records. Blank portion of the identity cards were filled up by the security personnel on the request of and on the basis of the particulars furnished by the petitioners.
The respondent no. 2 has specifically alleged that the petitioners joined the service of the erstwhile IISCO and were paid their stipend during the period of apprenticeship. Since, the petitioners joined as FTAs, they were paid stipend only during their apprenticeship period and were never treated as workmen. As such, during the period in question they were not entitled to any service benefit.
The respondent no. 2 has referred to the case of one Jitendra Tapadar who lodged a claim for the full benefit of gratuity and the appellate authority had held that apprentices appointed under Apprenticeship Act, are not entitled to the benefit of gratuity during the period of their apprenticeship. The present petitioners stand at par with the said employee. The respondent no. 2 prayed for dismissal of the writ petition.
Thus, the whole question involved in the present writ petition is about the dispute raised by the petitioners whether they are entitled to the retirement benefits for the period for which the management of the respondent no. 2 claims that they were apprentices.
The Tribunal has held that no document has been filed regarding the appointment of these workmen. A vague statement has been averred in the written statement that the company did not consider their retiring benefits for three to four years but without perusing any document it cannot be actually ascertained from which date to which date their retiring benefits have not been considered by the company. The Tribunal further noted that the employer also did not file any document to show that the workmen joined the organization as apprentices and made statutory agreements to that effect. It is interesting to mention that neither party filed any document calculating which date the workmen got their retiral benefits from the company.
The Tribunal under the circumstances observed that in terms of Section 103 of the Evidence Act the burden of proof about a particular fact lies on a person who wishes the court to believe its existence. From some of the service record cards filed by the employer the Tribunal held that employer's case could not be negatived. The apprenticeship should not be taken into consideration in calculating the retirement benefit of the workmen. The learned Judge of the Tribunal concluded that the workmen had failed to substantiate their case and are not entitled to get an Award as sought for and the proceeding under Section 10 of the Industrial Disputes Act was dismissed on contest.
In the written statement on behalf of the employers before the Tribunal a very specific statement was made that about 350 ex-employees, engaged as FTAs in between 1974 and 1978, submitted their applications for voluntary retirement on or before March 31, 2003. During the checking and verification of these applications, it appeared that some of the ex-employees submitted the copies of their appointment letters as FTAs under the Apprenticeship Act, 1961 and they got stipend during the said period.
Thus, it is very clear that the company never claimed that any apprentice was engaged in the year 1971. Such has also been its stand in this Court as well. The learned Judge of the Tribunal appears also to have been keenly aware that in spite of the claim made by the company, it could not produce any document to substantiate that the workmen actually "got their service by way of joining as apprentice and made statutory agreement to that effect".
It appears after examination of all the materials, documents and evidence that the learned Judge of the Tribunal had committed a very serious mistake in coming to the conclusion that the petitioners no. 1 to 37 and the husbands of the petitioners no. 38 and 39 worked as apprentices in the concerned company between 1971 and 1974. This has not been a case of the company in its written statement either. At most the company refers to the period of apprenticeship in respect of 350 employees during a totally different period.
This is a case where the burden of proof cannot be decided by a straight jacket formula. The petitioners could not produce any document of their employment since 1971 or from any year. If the case had been dismissed on that ground itself, there might not have been an occasion for any observation than what the company wanted the Court to believe. The petitioners have given explanation for not being able to produce any appointment letters as their names were hung in the notice board of the company. This is a fact which has not been controverted by the respondent no. 2. At the time of termination of employment whatever document that had in their custody or in their possession, they produced.
But we have to look at it not from an over-simplified point of view of burden of proof, as if having a universal applicability. Had it been a case that the company totally denied their any employment at all, that would have been one thing. It is a case where the company has admitted the association of these petitioners with the company from 1971, but with a rider that from 1971 to 1974 they worked as apprentices. Once the company alleges that they were the apprentices, they have to establish the same by cogent evidence and the onus immediately shifts to the company to prove the existence of it as the petitioners cannot prove the negative.
There is no doubt that even if the Evidence Act per se does not apply to an industrial adjudication, the basic principles of law enunciated in the Act relating to burden of proof most certainly does apply. The issue has been set at rest more than four decades ago by a Division Bench judgment of this Court in the case of Ramendra Narayan Deb vs. Eighth Industrial Tribunal and Others, reported in 78 CWN 787, wherein it has been held that the principles relating to burden and onus of proof apply to an industrial dispute.
The learned Judge of the Tribunal has also quoted Section 103 of Evidence Act in holding that the petitioners failed to establish their case. In the process there has been a misapplication of Section 103 of the Act which deals with burden of proof as to a particular fact which is very different from the general burden of fact in Section 101 of the Evidence Act. If Section 101 deals with the general burden of fact in respect of a litigant's legal rights and liabilities, dependent upon the existence of facts which he asserts, the onus to prove the same must be on him, whereas Section 103 of the Evidence Act says that burden of proof as to a particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Thus, the burden of proof lies on the person which asserts the affirmative of existence of a particular fact.
The illustration appended to the Section 103 of the Evidence Act makes the position very clear: if A prosecutes B for theft and wishes the Court to believe that B had admitted it to see, A must prove the admission. Again, if B wishes the Court to believe that at the relevant time he was elsewhere B must prove it. The matter may further be clarified with reference to a criminal case while the whole of facts which go to make up the guilt of an accused, must be proved by the prosecution. If the accused wants to take a particular alibi, he must prove the same. Reference may also be made to a civil action where despite the initial burden of proof being upon the plaintiff, the onus may shift to the defendant if he wants to rely on a certain fact. In the case of Vaisakhi Ram Vs. Sanjeev Kumar Bhatiyani, reported in AIR 2008 SC 1585, it had been held that the burden of proof of subletting is on the landlord. But if the landlord proves that the sub-tenant is in exclusive possession of the suit premises the onus is shifted to the tenant to prove that such was not the case.
It is a settled principle of law that there is a very subtle distinction between burden of proof and onus of proof. The burden of proof lies upon a person who likes Court to believe in certain fact which never shifts; but the onus shifts. In a given case overall burden lies on the plaintiff or the petitioner or the prosecution, as the case may be, and this burden never shifts. If on the other hand, the defending party seeks to destroy the case brought against him by the existence of a particular fact, he has to discharge the onus and this onus is shifted to him. Such a shifting of onus is a continuous process which runs through the entire trial or a proceeding in the evaluation of evidence.
It is true that in a case where both sides have failed to prove their respective case that party upon whom the initial burden lay must fail. The Tribunal while applying this very general principle of law to the facts of the present case ought to have been more circumspect about the latent dangers of its application and should have addressed itself to the more subtle shifting of onus in the process of the trial itself. True, it was for the workmen to prove their employment which they said they could not for reasons mentioned. But once the company admitted their employment from a certain date and an anterior apprenticeship, the onus immediately shifts to the respondent no. 2 to prove how the petitioners were appointed as apprentices. This onus has never been discharged by the management of the respondent no. 2 by any evidence, far less unimpeachable, and the learned Judge of the Tribunal below also made a significant departure from the settled principle of law in not placing the onus of proving the apprenticeship upon the respondent no. 2.
Given the fact that the workmen had alleged that they had no appointment letters and also the fact that the company had asserted the engagement of the workmen as apprentices, it was only expected that the company asserting the positive of its statement was required to prove its case by evidence. The workmen having specifically denied their engagement as apprentices documents relating their apprenticeship were required to be produced by the respondent no. 2. Nothing of that has done by the company. The learned Judge had held that Exhibits E and E1 were the letters of appointment for FTA in respect of one Awadhes Kumar Chowdhury and Others. The Tribunal had recorded that they used to get a consolidated stipend per month during the training period. The Tribunal has also referred to various other exhibits which were notices to the ex-workmen regarding their training in company. Exhibits P and Q have been particularly referred to which are the agreements of some ex-workmen about engaging them as apprentices. Again reference has been made to other exhibited documents which were the copies of the contract of apprenticeship of the ex-workmen. From this, it was concluded that the workmen involved in this case were appointed as apprentices.
The inherent limitation of relying on the documents in support of the case of the respondent no. 2 is far too obvious to ignore. The learned Judge had, as observed by us earlier, recorded that the employer did not file any document to show that these workmen joined as apprentices and made statutory agreements to that effect. After observing this, the question of relying on various exhibits did not arise. The kind of caution expected of the Tribunal in process of sifting evidence is lacking in the award impugned. The Tribunal in that case equally ought to have recorded and satisfied itself that the documents relied on by it in turning down the case of the workmen actually related to these persons and that they were not some documents produced from the archives of the management to which the present set of workmen were not the privies.
A more careful examination of the documents exhibited by the company would have convinced the Tribunal that they were immaterial for deciding the facts in issue in the present case. Most of the service records produced by the company were not in respect of these workmen at all. It has been alleged by the petitioners that out of 25 service record cards produced by the company only three related to the three petitioners viz., petitioners no. 8, 28 and 37. The Tribunal should not have relied on Exhibit E at all. This is an incomplete letter of appointment as a FTA, addressed to Md. Hazib-Ur-Rahaman who is not a petitioner in the present case. Therefore, whatever might have been written to him does not bind the present set of workmen. Even that apart, it was an incomplete letter which prevents the court from examining the contents of it. Only one page of that letter had been exhibited on objection from the side of the workmen. Moreover, the letter was issued on September 20, 1971. If the case of the respondent no. 2, is that the petitioners worked as apprentices between 1974 and 1978, it is immaterial whether any such letter was issued to any other person and before the period mentioned by them.
The Tribunal had not examined carefully the applicability of the documents to the present workmen before holding that the fact of apprenticeship had been proved.
Again Exhibit G is not a document which can bind the petitioners. It was a document at the instance of a person of the management without any counter-signature of the petitioner to lend credence to its worth and probative value. D. W. 1 submitted a bunch of documents whose admission was objected to by the workmen. Once admissibility of a document is objected to, the onus is entirely on the party to prove the document by adducing evidence. DW1, the sole witness for the respondent no. 2, did not even prove the signature of the Training Officer. Such a document is plainly of no value even as a collateral piece of evidence to establish the apprenticeship of the petitioners. Exhibits Z, AA, BB, CC, EE, and FF are contracts of apprenticeship between the management and six workmen in the year 1968. It goes without saying that it could not be in respect of the petitioners and the learned Judge without even considering this very fundamental aspect had accepted these documents as proof of the present petitioners' or the husbands' of the petitioners no. 38 and 39 being appointed as apprentices by the respondent no. 2. At least, it was expected of the Tribunal to observe that the contract of apprenticeship made in the year 1968 could not, either by the case of the workmen or by that of the respondent no. 2, apply to the petitioners. It is nobody's case that the petitioners were engaged in the year 1968 as apprentices. The respondent company cannot put up any defence relying on documents wholly unconnected with the petitioners.
The petitioners have very strongly argued that the service record cards, except in respect of three of them, related to other workmen. They were admitted into evidence with objection from the side of the workmen. Here also, because of the objection by the present petitioners, the onus entirely lay upon the party producing the documents to prove their content and to prove those documents to the satisfaction of the Court. The learned Judge seems to have been totally oblivious of the legal implication of a document admitted upon objection. Without appreciating the same, one wonders, how he could observe from those documents, being Exhibits 2 and 2, that the case of the employer has not been negatived. Apart from anything else, of the service record cards of 25 workmen, three were only of the petitioners. The service record cards in respect of other workmen have neither any nexus to nor have any bearing upon the case sought to be made out by the respondent no. 2 company in the present case.
The learned Judge of the Tribunal should also have considered that the endorsement on the service record cards of petitioners no. 8, 28, and 37 that from October 12, 1971 till October 12, 1994 were the period of Full Term Apprenticeship could not be taken into consideration as being against the pleading of the company itself. In the written statement of the company's specific case was that 350 employees taking voluntary retirement were initially engaged as full term apprenticeship between 1974 and 1978. That being the specific pleading any evidence contrary to it, either oral and documentary, was clearly not admissible and no importance to the same could be attached.
Moreover, the payment vouchers did not show that they were accepted by those petitioners in full and final settlement of their respective claim. Therefore, the question of estoppel cannot be applied against them. This is also not a case where the doctrine of approbate and reprobate can be made applicable nor can the principle of promissory estoppel. The Management of the respondent no. 2 company cannot come and say that they would not have been allowed to take voluntary retirement if three years' additional employment were to be put on them.
It must be borne in mind that after the company circulated the Voluntary Retirement Scheme on January 1, 2003, on March 10, 2003 they issued another circular containing a frank threat that all those employees who would not opt for voluntary retirement by March 31, 2003 would be eligible only for retrenchment compensation as per the memorandum of the Government of India. Thus, in the name of the voluntary retirement practically compulsory retirement was imposed upon the petitioners by the company as, otherwise, they would have had to remain contended with only the retrenchment compensation. Faced to with the grim consequence of getting merely the retrenchment compensation any employee will prefer voluntary retirement as the monetary compensation is far better in the latter case.
It is not a case that the petitioners agreed to forego the first three years of their service period in consideration of getting a lumpsum amount under the voluntary retirement scheme in one go. They had no better alternative. There was no promise held out to company as result of which it can be said that the company had agreed to accept the applications for voluntary retirement of the petitioners. The workmen had no other way than to accept what was offered to them. It was not possible for them to sacrifice what was being paid to them at that point of time. These workmen never enjoyed an equal bargaining power with a mighty public corporation. The situation is reminiscent of Central Inland Water Transport Corporation and Another Vs. Brojo Nath Ganguly and Another, reported in AIR 1986 SC 1571, where the Supreme Court had observed the inequality of bargaining power as the result of great disparity in the economic strength of the contracting parties. The Supreme Court observed that it will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means to livelihood only upon the term imposed by the stronger party or go without them.
The Tribunal had observed and has attached great importance to it that PW 2 Sri Jagabondhu Dey had admitted in his cross-examination that they were all appointed as full term apprentices, but there is no document to show that they were apprentices. From this, the Tribunal concluded that once the workmen had admitted apprenticeship there is nothing to disbelieve it.
While relying on this part of the statement of PW 2 and drawing the conclusion based thereon the learned Judge failed to appreciate that this was an offbeat statement made against the overwhelming totality of the case throughout his evidence. The Tribunal had also recorded the statement made by PW 2 that they were never appointed as apprentices, but did not attempt to weigh the evidentiary value of these statements in the context of the overall case of the workmen. The learned Judge failed to attach due importance to the statements made by PW 2 in examination- in-chief and a stray sentence cannot be read in isolation as demolishing the material fabric of the evidence adduced by a witness. It is equally to be kept in mind that PW 2 has also stated in his cross-examination that there was no agreement between the workmen and the management with regard to the full term apprentice. He categorically stated that it was not a case that workmen admitted their apprenticeship. His specific statement was, "none was an apprentice". That he was supporting the case of the workmen appears very clearly from almost all the statements made by him. The statement 'it is fact that we claimed as full time apprentice' has to be read in the backdrop of the totality of the case and not picked up to the exclusion of all other statements made by PW 2. That will be a failure of proper appreciation of evidence.
It is quite possible and as it also appears that PW 2 might not have been able to make a distinction between the probation period and the period of apprenticeship at times. Otherwise he would not have specifically said that none of them was an apprentice or the present reference was valid and that the workmen are entitled to get the reliefs as prayed for.
The Tribunal had failed to appreciate that a single statement which is clearly against the weight of evidence adduced by PW 2 himself cannot wipe out the entire testimony of the witness which is otherwise clear and cogent; at most that was a contradiction and discrepancy. This is a discrepancy which does not corrode the credibility of the case of the workmen. In the case of State of Maharashtra Vs. Siraj Ahmed Nisar Ahmed, reported in (2007) 5 SCC 161, the Supreme Court had occasion to observe that a hyper-technical approach by taking a sentence out of the context here and there from the evidence could not ordinarily permit rejection of the evidence as a whole. In the view of the persistent case made out by PW 2, a statement that they were appointed as apprentices, when just the reverse is the case made out by him throughout the deposition, would not dilute an otherwise cogent evidence.
If the Tribunal had attached undue importance to this statement made by PW 2, it was also expected to explain why the subsequent statements made by him was so completely ignored. It appears from the evidence of PW 2 that simultaneously with claiming that they were employed as full term apprentices, he had stated that there was no agreement between the workmen and the management in regard to the full term apprenticeship and there was no contract between the workmen and the management over apprenticeship.
It was equally important for the Tribunal to examine the issue of the apprenticeship of the petitioners from the point of view of its legal feasibility in the absence of any agreement or contract to that effect. The Tribunal cannot pick and chose statements from the deposition of a witness and attach disproportionate importance to it without further appreciating that even if the statement was correct it could not have been legally possible and without any formal contract of apprenticeship no apprentice could be engaged by any employer. The learned Judge of the Tribunal referred to definitions of 'apprentice' and 'workmen' as provided in the Apprentices Act, 1961 to establish that an apprentice is not a worker. In the process the Tribunal entirely overlooked that Section 4 (1) of the said Act specifically says that no person shall be engaged as an apprentice to undergo apprenticeship training in a designated trade unless such a person or if he is a minor his guardian has entered into the contract of apprenticeship with the employer. Section 4(5) of the Act prohibits an apprenticeship advisory from registering a contract of apprenticeship unless he is satisfied that the person described as an apprentice in the contract is qualified under the Act for being engaged as an apprentice to undergo apprenticeship training in the designated trade specified in the contract. Designated trade has been defined in Section 2(e) of the said Act as meaning any trade or occupation or any subject field in engineering or technology or any vocational course which the Central Government after consultation with the Central Apprenticeship Council may by notification in the official gazette specifies as a designated trade for the purpose of the Act. Section 19 requires every employer to maintain records of the progress of training of each apprentice undergoing apprenticeship training in the establishment in such form as may be prescribed. It further requires every such employer to furnish such information and returns in such form to such authorities and at such intervals as may be prescribed.
Mr. Pal argued that apart from the oral admission of the PW 2 there is documentary evidence also by which the fact of apprenticeship has been admitted by the petitioners. He, in particular, referred to Exhibit D which is in the nature of a representation made by a certain, purportedly containing signatures of a large number of workmen.
The impropriety of relying on a solitary statement of a witness against the totality of the evidence adduced by him has already been noted. So far as Exhibit D is concerned, it must be held to be without any probative value. It is an unsigned document. A sheet of paper containing several signatures has been annexed to the said document in a manner as if the names appearing therein were making the representation in Exhibit D. If one carefully looks it containing certain signatures, one is bound to raise one's eyebrows as the signatures start from serial no. 45 or 46. The respondent no. 2 company should have come up with an explanation what happened to the signatures from nos. 1 to 44 or 45. Where the first page containing signatures? In the absence of continuous pages containing signatures it is difficult to accept that these signatures referred to the purported representation of Exhibit D. The respondent no. 2 company has not taken any step to remove the doubt that the piece of paper containing various signatures could as well have been made on a very different occasion and context and has been annexed to Exhibit D. After all, D.W. 1 did not identify and prove the signatures. He, in fact, said nothing about the document.
Thus, one thing stands out very clearly that by mere admission apprenticeship of any person cannot be inferred by the Court, far less concluded. There must be a valid contract and that contract should be brought to the knowledge of the appropriate authority. If any such condition is violated, the employer is liable to be proceeded against as an offender under the law.
Sri Babulal Dhawan, D.W. 1, also says that about 350 ex- employees were engaged as full term apprentice between 1974 and 1978. If the relevant service record cards are to be accepted the three petitioners in respect of whom records could be produced do not fall within this period. There is a distinct possibility, I would say a plausibility, that the company was talking of some other set of workmen than the present petitioners. DW 1 has specifically admitted that since he was appointed in the year 1979, he has no knowledge as to what had happened in the year 1979. He could say it on perusal of the papers and documents. If the papers and documents relating to the present petitioners were not available or if he is not aware of them, a large body of the evidence of D.W.1 must either be rejected or taken to be based on hearsay.
This takes us to the consideration of what DW 1 said about the contract. He categorically stated that all employees signed the contract on apprenticeship. He filed only some papers.
This is a very significant statement. If all the employees had signed their respective contracts for apprenticeship, it was obligatory on the part of the respondent company to produce those documents in respect of the petitioners. The company cannot absolve itself of its liability by merely saying that only the available papers have been filed. It is also required to explain simultaneously the reasons for not being able to file the relevant documents in respect of the petitioners. Moreover, the company could not produce any paper showing acceptance of apprenticeship by any employee. Thus any document produced by it remained unilateral document without any force.
Since the respondent company did not provide any reason for not producing any relevant document a presumption adverse the case of the company must have to be drawn. It is not to be very easily accepted that if contracts with all the apprentices had been entered into none relating to those of so many petitioners would be available. After all, this was a company which had a regular establishment and an office where records are preserved. If the records were not available with the company, it has to answer what made it mention in the service record cards of three of the present petitioners that between 1971 and 1974 they worked as apprentices. If the records were not available it was expected of the company to come up with an explanation for their non-availability and the steps they taken about it. If any record or document is in if the custody of a party or a person and if the same is not produced a valid explanation for their non-production is the least that is expected to be given by him.
From the absence of any explanation for not producing the relevant records relating to the petitioners the Court is certainly entitled to draw a presumption adverse to the case sought to be made out by the respondent no. 2 company on the principle analogous to the one contained in Section 114 (g) of the Evidence Act. That provision of law empowers a Court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. When a party who is in possession of certain documents does not produce the same and at the same time does not say why they are not produced and why not available, the court may always treat it as willful withholding of evidence and may raise a presumption from the same. In the case of Mussauddin Ahmed Vs. State of Assam, reported in (2009) 14 SCC 541, the Supreme Court held that it is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114 (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such a party and it was not called upon to produce the said evidence.
This principle also applies to industrial dispute with equal force. In the case of Sriram Industrial Pvt. Ltd. Vs. Mahak Singh, reported in AIR 2007 SC 1370, the workmen claimed to have been appointed by the petitioner in certain years. They filed the documents relating to their attendance in their possession. The employer did not file the attendance registers and the muster rolls for the years 1991 onwards but produced only records of twelve months immediately preceding date of retrenchment. The Supreme Court held that as the best evidence was not filed, the High Court was justified in drawing an adverse inference against the employer.
In the present case when the relevant records have not been produced without any valid justification which under normal circumstances should have been produced and when no reason for the same has been provided by the company, the only inference that a Court may legitimately draw is that the records relating to alleged apprenticeship of the petitioners, if produced, would have gone against the company.
When no such explanation was forthcoming it was imperative for the Tribunal draw a presumption adverse to the company. This is a case where respondent no. 2 having asserted that the petitioners were engaged as apprentices the onus to prove the same was upon the company which it had failed to discharge. The company was the custodian of the best evidence and they had failed to produce the same without any explanation whatsoever. But in spite of it the Tribunal had erroneously placed the onus on the workmen and concluded that they had failed to discharge the same.
Even if one most generously tries to accept the contention of the company that it engaged the petitioners as apprentices, such apprenticeship cannot be said to have been in terms of the relevant provisions of law. A company may designate somebody as an apprentice; but if no valid contract is entered with them and if the provisions of Apprentices Act, 1961 are not followed such workmen cannot be treated as apprentices recognized by law. There is no evidence about the annual returns being submitted by the company to the appropriate authority about the number of apprentices it maintained and whether they included the names of the petitioners. Thus, the claim that the petitioners served the company as Full Term Apprentice must fail.
I thus find the Award passed by the Tribunal to be vitiated by non-consideration of material evidence, wrong assessment of evidence, wrong placing of onus and a perverse finding about the merits of the case of the workmen. The learned Judge was wrong in holding that the workmen failed to substantiate the case or they were not entitled to get an Award.
For the reasons aforesaid, I, set aside and quash the Award impugned and I direct the respondent no. 2 company to take the period of three years which the company had described as the period of apprenticeship into account while calculating the amount payable by the company at the time of the petitioners' taking the voluntary retirement on March 31, 2003. The company shall recalculate the amount payable by it to each of the petitioners or their predecessors-in-interest, as the case may be, within the period of six weeks from the date of communication of the order and to make payment of the balance amount to each of the petitioners after adjusting the amount paid to them at the time of taking voluntary retirement.
The writ petition is allowed and there shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee