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[Cites 12, Cited by 1]

Gujarat High Court

Morbi Muncipality vs Rejesh Narandas on 25 March, 2004

Author: H.K. Rathod

Bench: H.K. Rathod

JUDGMENT

 

 H.K. Rathod  

 

 1. Learned Advocate Ms.D.N.Nanavati appearing on behalf of the petitioner and Learned Advocate Mr.A.K.Clerk appearing on behalf of the respondent. 

 

 2. In this group of petitions, the petitioner Morbi Nagarpalika has challenged the order passed by the Labour Court, Rajkot in Reference No.61/85, 55/85 and 59/85 decided on 6th October 1995, wherein Labour Court, Rajkot has set aside the termination order and granted the reinstatement with continuity of service with 20% backwages for interim period.

 

 3. Learned Advocate Ms.D.N.Nanavati appearing on behalf of the petitioner submitted that the respondent workman engaged/appointed by Morbi Nagarpalika has a back door entry without following the recruitment procedure or without following the statutory rules for the appointment. She also submitted that the respondent workman has not completed 240 days continuous service and not worked regularly and he was a daily wager. As and when the work was available, he was called by the Nagar palika and, as the work was not available, his service has been terminated by the Nagar palika. She also raised contention that it is the burden upon the workman to prove that he has completed 240 days continuous service and not upon the Nagarpalika. She relied upon the decision of Learned Single Judge in Special Civil Application No.10556 of 2003 dated 16/2/2004 and submitted that the Learned Single Judge has relied upon the decision of the Division Bench of this Court in case of Halvad Nagarpalika and Ors. vs. Jani Deepakbhai Chandravadanbhai & Ors. reported in (2003) 2 GHJ (307) that Section 25-F is not applicable in respect to the workman those who are not regularly selected and appointed by the Nagarpalika. Therefore, relying upon the observations made by the Division Bench, she submitted that here also it is not the case of the workman that he was selected by following the procedure, he was daily wager and accordingly Section 25-F is not applicable and, therefore, the award passed by the Labour Court is illegal and contrary to the provisions of the I.D.Act, 1947. The same decision of the Division Bench has been challenged by the workman before the Apex Court and SLP has been admitted but there is no stay against the said Division Bench judgement granted by the Apex Court, matter is pending as referred to the larger bench.

 

 4. Learned Advocate Mr.A.K.Clerk submitted that along with the statement of claim of the workman the documents were called from the petitioner, wherein seniority list upto March 1985, muster roll for the period 1983 to 1985, length of service, last salary, but none of the documents were produced by the petitioner and, therefore, he submitted that adverse inference against the petitioner has been rightly drawn by the Labour Court and passed an award and for that the Labour Court has not committed any error. He also submitted that the contention raised by the petitioner for the first time before this Court that respondent was appointed by back door entry and therefore, 25-F is not applicable, was not raised by the petitioner before the Labour Court and this was raised for the first time raised by the petitioner before this Court, therefore, contention not raised before the Labour Court and raised for first time before this Court should not be entertained. He also submitted that it is the burden upon the employer to disprove the evidence of the workman that he has not completed 240 days continuous service because employer is having the original record that, in comparison to that, workman not having any documentary evidence from which he can satisfactorily prove the continuous service of 240 days. Therefore, he submitted that Labour Court has rightly relied upon the evidence of the workman, oral evidence, wherein he deposed before the Labour Court that he completed 240 days continuous service. Other side has not led any evidence to disprove the said oral evidence of the workman. No evidence have been produced by the petitioner before the Labour Court, therefore, Mr.Clerk submitted that the Labour Court has rightly passed an award that no error has been committed and, therefore, no interference is necessary. Learned Advocate Mr.Clerk relied upon two decision in case of Rajkot District Panchayat Vs.Jayaben Mavjibhai reported in (2003) 3 GLH page 435 and Division Bench of this Court has decided in case of Surendrangar District Panchayat Vs. Dahyabhai Amarsinh reported in (2003) 3 GLH page 735.

 

 5. I have considered the submissions made by both the learned advocates. I have perused the records as well as the award in question. Before the Labour Court statement of claim has been filed by the workman, wherein the averment is made that workman was working for more than one year with Nagarpalika and his services has been terminated on 19th August 1984 without complying with the provisions of Section 25-F of the I.D. Act 1947. As against that, reply has been filed by the Nagarpalika vide Exh.5 and contention is raised that respondent workman was a daily wager and he has not worked continuously and, therefore, there is no need to comply with the provisions of Section 25-F of the I.D.Act, 1947. The workman was engaged as and when work was available, therefore, when work was not available, the service of the workman was terminated. The workman was examined vide Exh.7 and Nagarpalika has also examined their witness. In the deposition of the workman he specifically deposed that he had worked with the Nagarpalika for more than one year continuously and he also deposed that he had completed continuous service of 240 days. He also deposed that at the time of terminating the service, he has not received any retrenchment compensation notice pay or notice. As against that the witness of the Nagarpalika has deposed that workman had worked only 168 days means not more than 240 days continuously. He was daily wager and as and when work was available, he was called by Nagarpalika, therefore, no breach has been committed by the Nagarpalika. The Nagarpalika has relied upon certain decisions and submitted that the termination is legal and valid. Certain records about last months for counting about the working days of the workman has been produced by the Nagarpalika. But before the Labour Court, muster roll and pay register were not produced by the Nagarpalika. The Labour Court has come to the conclusion that once the workman has deposed before the Labour Court that he had worked continuously for more than 240 days with the Nagarpalika then it is the burden of the Nagarpalika to produce the oral evidence or documentary evidence. Undisputedly Section 25-F has not been complied and, therefore, ultimately the Labour Court has set aside the termination order and considered him the gainful employment admitted by the workman, Labour Court has granted 20% backwages. 

 

 6. The contention which has been raised by Learned Advocate Ms.Nanavati that because of the back door entry and daily wager and relying upon the decision of the Division Bench in case of Halvad Nagarpalika Section 25-F is not required to be complied and Section 25-F is not applicable to the daily wager. In respect to this contention the Apex Court has an occasion to consider in case of Rattan Singh Vs. Union of India & Ors. reported in (1997) 11 Supreme Court Cases 396, where the Apex Court has considered that Section 25-F is also applicable to termination of even a daily rated workman who had continuously served for the requisite statutory minimum period in a year. Therefore, termination of service of such workmen without complying Section 25-F is held illegal. The relevant observations made by the Apex Court in paragraph 3 is quoted as under: "3. We find merit in the said submission of Shri Ashri. From the dates mentioned in the judgment of the first appellate court dated 22-1-1985, it appears that the appellant had continuously worked for more than 240 days in a year. Since he was a workman, he was entitled to the protection of Section 25-F of the Act and the said protection could not be denied to him on the ground that he was a daily-rated worker. it is not the case of the respondents that the provisions of Section 25-F of the Act were complied with while terminating the services of the appellant. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of Rs.25,000/- be paid to the appellant in lieu of compensation for back wages as well as reinstatement. This amount is being paid in full and final settlement of all the claims of the appellant. The said amount shall be paid within two months. The appeal is disposed of accordingly. No costs. 

 

 7. The question whether daily wager is entitled the benefit of Section 25-F of the I.D.Act, 1947 or not? As above referred decision of Apex Court has considered that daily wager are covered and entitled the benefit of Section 25-F of the I.D.Act if, they completed statutory minimum period specified in Section 25-F of the I.D.Act, 1947. Why the daily wager is excluding from the protection under Section 25-F of the I.D.Act. I fail to understand the purpose and meaning. The definition of workman is given under Section 2(s) of I.D.Act 1947. In definition there is no exclusion of daily wager, casual labour, ad hoc employee, stop gap employee, but only exception has been made about workman those who are working in supervisory capacity or having managerial powers receiving salary of more than 1600 and Government employees working in Air Force, Police Force, Navy and Army. Total four exceptions are mentioned in the section. Even dismiss, discharge or retrenched workmen are also included in the definition of workman. Workman means any person including an apprentice employee in any industry means any person including daily wager, ad hoc, stop gap, casual and etc. Why daily wager are not covered within the definition of workman for that no discussion has been made by the Court. Simply relying upon the decision of the Appellate Court by the Single Bench is not enough. When Court examining the issue in respect to any subject matter of any law then it is a legal obligation upon the Court to consider the past law and existing law including recent decision on the subject matter then Court should have to decide the matters and to give finding in respect to subject matter. Merely considering one or two decision on the subject of the Apex Court is not proper for the Court to decide the issue, then it will create unnecessary further litigation between the parties and it will increase the litigation in the Court which ultimately not in the interest of either the parties or the judicial institution. The decision which has been referred before me simply rely one paragraph from order of Appellate Bench that daily wager are not covered under Section 25-F of the I.D.Act, 1947. The definition of workman had been covered, Section 25-F also apply to the workman. In I.D.Act number of places the workman word has been used having the same meaning as defined under the Section 2(s) of the I.D.Act, 1947. Looking to the definition of workman even back door entry workman are also covered and, if, any workman who was not employed by following recruitment procedure but he completed 240 days continues service then he is entitle the protection under Section 25-F of the I.D.Act 1947, because back door employee is also a person which include in the definition. Therefore, if any decision curtail the definition then it means to curtail a legal right of the person which has been guaranteed and granted by the statutory provisions. It is not the function of the Court to curtail and control the legal right of the person which has been guaranteed and granted under the statutory provisions. Therefore, the section 2(s) were workman have been defined is quoted as under: "2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

   

  (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

 

  (ii) who is employed in the police service or as an officer or other employee of a prison; or

 

  (iii) who is employed mainly in a managerial or administrative capacity; or

 

  (iv) who, being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature" 

 

 8. In light of this definition this Court in case of Medical officer, District Health Centre Vs. Savjibhai Trikambhai Kansagra reported in 2002 LAB I.C. page 2659 has held that daily wager is covered by definition of workman and he entitled the protection under Section 25-F of I.D.Act, 1947. In case of Management of MCD Vs. Premchand Gupta reported in AIR 2000 SC page 454, a Section Officer was appointed on temporary post completed more than 1 1/2 years service terminated by the employer then also his service has been considered as a workman and benefit under Section 25-F has been granted by the Apex Court in above referred case. If any workman those who are satisfying the definition under Section 2(s) of the I.D.Act and completed continues service of one year within the meaning of Section 25B read with section 25-F then he entitled the benefit of Section 25-F as a condition precedent before terminating the services of such workman. Similarly in case of Madhya Pradesh Text Book Corporation Vs. Krishna Kant Pancholi & Anr. reported in 1998 (80) FLR page 54, the Single Judge of that Court (Coram:D.M.Dharamadhikari,J then he was) has also examined the same question and come to the conclusion that "the provisions of Section 25-F are applicable to all categories of employees including those employed on a daily rated basis or for assigning work of intermitted nature. All categories of employees put in more than one year continues service are entitled to payment of retrenchment compensation as a condition precedent for their retrenchment under Section 25-F of the Industrial Dispute Act."

 

 9. Even Apex Court also in case of Samishta Dube Vs. City Board, Etawah reported in 1999 LAC I.C. page 1125 held that provisions of Section 6-P, 6-N and of U.P. Industrial Disputes Act applies even to a daily wager. This sections are similar to Section 25-F of I.D.Act, 1947. Considering the above referred decisions, if, any person covered under the definition of Section 2(s) then he entitled the benefit under Section 25-F of I.D.Act provided he remains continues service for a period of one year and completed 240 days continues service. Therefore, the decision which has been relied by learned advocate on behalf of the petitioner of Special Civil Application No.10556 of 2003 is not accepted by me in light of the decision of Apex Court and other High Court on the same subject matter. In case of Haresh Kumar J. Pandit, Dy.Executive Engineer, Dhoraji decision of Division Bench of this Court reported in 1990(2) GLH (UJ) 3 were daily wager is covered by definition of Section 2(s) and held that daily wager is also entitled the benefit of Section 25-F of the I.D.Act when specified condition incorporated in the section.

 

 10. The observation is to the fact that protection of Section 25-F should not be denied to the workman on the ground that he was daily rated workman. Now in respect to the contention about the back door entry the view taken by the Apex Court in case of Vikramaditya Pandey Vs. Industrial Tribunal and Anr. reported in 2001 AIR SCW 310. The Apex Court has observed that termination of the services of the workman found to be illegal. Then benefit of relief of reinstatement with backwages should not denied on the ground that his recruitment was not as per service rules as their service rules prevail over labour laws. Then it has held that service regulation do not prevail over the Industrial Disputes Act. Before the Apex Court the facts of an employee who was appointed as a clerk on ad hoc basis without following the recruitment rules he remained in service upto 19th July, 1985 and his service was terminated. He raised Industrial Disputes and Tribunal come to the conclusion that retrenchment procedure was not followed, therefore termination has been held to be illegal. But Tribunal has refused the relief of reinstatement on the ground that regular appointment to the post held by him could not be made by the U.P. Corporation Institutional Service Board as per U.P.Corporate Societies Employees Service Regulation, 1975 and as such he could not be reinstated in service as a regular employee. However, Tribunal has granted the benefit of retrenchment with 12% for the relevant period and denied the relief of reinstatement and full backwages to the employee. The said order of the Tribunal has been challenged before the High Court and High Court has dismissed the matter of the workman and ultimately the matter came to the Apex Court. In light of this background, the Apex Court held that because of the fact that workman was not regularly appointed, termination is illegal because of noncompliance of Section 25-F of the I.D.Act, then right of reinstatement cannot be denied to the workman only on the ground that he was not regularly appointed after following the due procedure of the Rules. In this facts also Apex Court has not disturbed the finding that an employee who has not been regularly recruited and worked for more than 240 days continuously, his termination is set aside only on the ground of noncompliance of Section 25-F of the I.D.Act. Therefore, considering the Apex Court decision, the contention raised by Ms.Nanavati that as the respondent was appointed as a daily wager, Section 25-F is not applicable, cannot be accepted. The relevant discussion in paragraph 6, page 312 is quoted as under: 

  " By plain reading of the said Regulation it is clear that in case of inconsistency between the regulations and the provisions of the Industrial Disputes Act, 1947, the State Act, the Workmen's Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any co-operative society or class of co-operative societies, to that extent Regulations shall be deemed to be inoperative. In other words, the inconsistent provisions contained in he Regulations shall be inoperative,not the provisions of the other statutes mentioned in the Regulation 103. The Tribunal in this regard correctly understood the Regulation but wrongly refused the relief on the ground that no reinstatement can be ordered on a regular employment in view of the provisions contained in the said Regulation. But the High Court read the Regulation otherwise and plainly misunderstood it in saying that if there is any inconsistency between the Regulations and the Industrial Disputes Act, 1947 and other Labour laws for the time being in force the Regulations will prevail and the Industrial Disputes Act, 1947 and other labour laws shall be deemed to be inoperative. This misreading and wrong approach of the High Court resulted in wrong conclusion. In the view it took as to Regulation 103 the High Court proceeded to State that eve if there was retrenchment in view of Regulation 5 of the Regulations the Labour Court was not competent to direct reinstatement of the appellant who was not recruited in terms of Regulation 5 because the Labour Court had to act within the ambit of law having regard to the Regulations by which the workman was governed. In this view the High Court declined relief to the appellant which in our view cannot be sustained. The Tribunal felt difficulty in ordering reinstatement as the appellant was not a regular employee. The appellant ought to have been ordered to be reinstated in service once it was found that his services were illegally terminated in the post he was holding including its nature. Thus in our opinion both the Tribunal as well as the High Court were no right and justified on facts and in law in refusing the relief of reinstatement of the appellant in service with back wages. But, however, having regard to the facts and circumstances of the case and taking note of the fact that the order of termination dates back to 19-7-1985 were think it just and appropriate in the interest of justice to grant back wages only to the extent of 50%. 

 

 11. This aspect also examined by this Court in case of Nalinkumar A.Thakar & Ors. Vs. Gujarat State Civil Supplies Corporation Ltd. & Ors. reported in 2003 I CLR 278. Relevant para 30 is quoted as under:

  30. "The respondent is having discretion and the same is required to be exercised in accordance with the reasons and fair-play and not capriciously. Bereft or rationality and fairness, discretion, degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of daily-rated employee may itself constitute denial of equal protection and offend the equality clause in Ats.14 and 16(1) of the Constitution of India. It is borrowed from the archaic common law concept that employment was matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to employees of the Government or Sate Authority. Secondly, with regard to private employment, much of it has passed into the fossils of time. Therefore, the respondent is not entitled to terminate the services of temporary or daily-rated employees in violation of mandate of Arts. 14 and 16 of the Constitution of India. It is not the case of the respondents that there was no vacancy or the post in question has been abolished or the work which was performed by the petitioners have come to an end. No such exigency has been pointed out by the respondent. It is also not the case of the respondent that the petitioners are surplus employees, and therefore, their services have been terminated. Therefore, considering the entire aspect of the matter which is almost undisputed and the facts which are on record and also considering the reply and rejoinder, according to my opinion, the termination orders which have been passed by the respondent which has been by Arts. 14 and 16 of the constitution of India and it is arbitrary, capricious and colourable exercise of powers and victimisation and mala fide on the part of the respondent while passing such termination order. When juniors to the petitioners were continued in service and new persons were also subsequently recruited and some of them are made permanent, and therefore, the impugned order of termination are required to be quashed and set aside." 

 

 12. The Division Bench of this Court in case of Sarabhai Chemicals Vs. Subhas N.Pandhy reported in 1984 2 LLJ page 75, Chief Justice Poti held that Badli workman has also fall within the definition of workman under Section 2(s) of I.D.Act 1947. Similarly temporary employee, casual employee would fall within the ambit of definition workman. The definition does not state that a person in order to be a workman should have been employed in a substantive capacity or on temporary basis in the first instance or after he is found suitable for the job after a period of probation. In other words every person employed in an industry irrespective of his status temporary, permanent or probation would be a workman within the meaning of Section 2(s) of the I.D. Act, 1947. The case law relative to above proposition of law are as under:

   

(e) Chief Engineer (Irrigation) Chepauk, Madras v. N. Natesan, [1973] II L.L.J 446 (447) (Mad.) (D.B.), per Veeraswami, C.J.; Management of Crompton Engineering Co. (Madras) Private Ltd. v. Presiding Officer, Additional Labour Court, [1974] 1 L.L.J. 459 (Mad.), per Ismail, J.

(f) Elumalai v. Management of Simplex Concrete Piles (India) Ltd., [1970] II L.L.J. 454 (Mad.), per Ismail, J.; Tapan Kumar Jena v. General Manager Calcutta Telephones, [1981] Lab. I.C. (NOC) 68 (Cal.) (D.B.)

(g) Hutchiah v.Karnataka State Road Transport Corporation, [1983] 1 L.L.J.30 (37) (Kant.) (D.B.), per Rama Jois, J.

Recently Andhra Pradesh High Court has also held that Badli worker employees working in Cement factory fall within the definition of workman under Section 2(s) of I.D. Act 1947 reported in 2004 I CLR page 872.

13. I have considered the decision of the Apex Court as well as this Court as referred above. The contention raised by petitioner that back door entry employee are not entitled for any protection as their appointment itself is bad and contrary to the statutory provisions. Therefore, they are not entitled for any protection under the provisions of I.D.Act, 1947 and, therefore, their termination cannot be challenged by the employee under the provisions of I.D.Act. The question of back door entry is now a days has been highlighted by the employer in light of some decisions of the Apex Court on different angle. This question have been repeatedly raised in case of Corporation, Municipality, Panchayat and other statutory body. When statutory body acted accepting the application from any candidate with a request to appoint employee in a particular post and such applications has been processed by the authority of statutory institution and appointment has been given to such candidate. Some time such appointment is given in writing, sometime such appointment is given orally. There are number of persons who are working in statutory bodies without following recruitment rules such persons has been appointed by statutory bodies. After considering his application or oral request knowing fully that for appointment of any candidate any post in statutory body require to follow statutory recruitment rules. So once the authority of statutory corporation or body appointed or allow to engage such candidate and such person is working with the statutory body for number of years receiving the wages not equivalent to regular employee, so not paying regular salary to such back door person. Taking the work similar to the regular employee from back door employee, not paying the equal salary to the back door employee and paying some meagre amount and exploited such back door person for number of years. This system continues in Gujarat since number of years. Why at the time of giving appointment or engagement of such back door employee any officer who is higher than appointing person raising the question about appointment of such employee of such back door person in statutory body without following statutory recruitment rules. Why the State Government or respective department remains silent and permit the statutory body to exploit such back door person not paying regular salary, then if the service of such back door person is terminated and he raised Industrial Dispute before the proper forum at that occasion the contention raised by the statutory body that such person was not appointed through statutory recruitment procedure and, therefore, he is not entitled the protection of Section 25-F and also not entitled to any relief against the statutory body. At this occasion whether it is open for statutory body to raise such contention before the concerned authority that this back door entry person are not entitled any relief on the ground that he was not appointed after following due process of law. According to my opinion once the statutory body offer the employee or candidate offer his service to the statutory body and ultimately that offer either side has been accepted by other side and accordingly such employee remain in service for number of years and thereafter his services terminated and at that time when challenged to termination such contention raised by statutory body then principle of estoppel must have to be applied in such cases and statutory body must have to be estopped to raise such contention before the proper forum, otherwise exploitation was permitted, nobody raised question against exploitation but when question of liability arise then legal contention has been raised to the effect that persons may not able to get relief for which they are already stopped by giving appointment to such back door person. Back door employee are also a workman within the meaning of Section 2(s) of I.D.Act 1947. They also entitled the protection if they satisfy the condition of Section 25-F of the I.D.Act, 1947 then not to grant reinstatement because he was employed as a back door entry. Then it amounts to great injustice to such person. The Apex Court has referred above and has given clear answer to such question in reported decision 2001 AIR Supreme Court Weekly page 310. Therefore, according to my opinion the question of back door entry arise because statutory body has opened the back door and allow the entry to such person otherwise no question would arise of back door entry. Once the statutory body allowed the entry opening the back door and then to raise contention that they entered in service by back door entry naturally they should have to be estopped from raising such useless contention before the proper forum. In the system of back door recruitment the statutory body committing default violating the statutory rules and ultimately statutory body has not to suffer because of the contention that such appointment is dehors the statutory rules but ultimately in such cases looking to unemployment in our country the sufferer is the poor employee or a poor person that aspect has not been properly diluted. In such cases human approach is necessary from Court of justice. If the Court not examined the matter of merits of such back door person and only on the ground that appointment is de hors the rule reject the case then Court will do injustice to such a person when there is no fault on his part. Such person is requested to the statutory body to employed him. The statutory body accepted the request and accordingly such person is working with statutory body, therefore, if Court is not able to do justice between the party then atlest Court should not have to do injustice to the party.

14. As regards the next contention raised by Ms.Nanavati that it is a burden upon the employee to prove the 240 days continuous service with the Nagarpalika and it is not the burden upon the Nagarpalika to disclose the facts, when Nagarpalika has engaging the daily wager, on that occasion Nagarpalika is not giving any appointment orders to the workman, no identity card is being given, no pay slip is being given to the workman and considering the service of the workman, none of the documents have been given by the Nagarpalika to the workman under which he can prove 240 days continuous service with the Nagarpalika. In such circumstances when Nagarpalika having the original records of presence register, pay slip and muster wherein the name of the workman and working days, salary had been recorded and in that circumstances, if the relevant records inspite of the demand not produced by the Nagarpalika before the Labour Court, then Labour Court has rightly drawn adverse inference against the Nagarpalika. Whether it is the burden upon the employer or employee, it is the question of fact which required to be examined in the light of the fact that whether any documents had been given by the employer to the employee at the time of engagement. If none of the documents is given, then it is very difficult for the workman to prove the continuous service of 240 days. Therefore, according to my opinion the burden is upon the employer to disprove the facts which has been deposed by workman in his oral evidence. In the facts of this in oral evidence he remained in continues service for more than one year and had completed 240 days continuous service. This fact is not disproved by Nagarpalika by producing the relevant record before the Labour Court. This record have been demanded by the workman along with the statement of claim but not produced by the Nagarpalika and that is how the Labour Court has rightly drawn the adverse inference against the Nagarpalika. The same view has been taken by this Court in above referred decision relied on by Mr.Clerk that in such circumstances, adverse inference must have to be drawn against the employer. This Court has considered the decision of the Apex Court in case of M/s.Tannery and Footwear Corpn of India Vs.Raj Kumar and Anr.reported in 2002 Supreme Court page 508. In both the decision the Division Bench of this Court as well as the Single Bench of this Court has taken view that adverse inference must have to be drawn. In such circumstances each workman has deposed before the Labour Court in his evidence that he remained in continues service for more than one year and had completed 240 days. Therefore, the contention raised by Ms.Nanavati is also rejected.

15. The view taken by Apex Court in such cases reported in M/s. Tannery and Footwear Corporation of India Vs. Rajkumar and other reported in 2002 AIR SCW 44. Relevant paragraph 3 & 4 are quoted as under:

3."Learned counsel for the appellant submitted that the burden of proof lay upon the respondent to establish that he was in the employment of the appellant and had worked for a period of 240 days in a year before termination of his services and no such material was made available. It is clear that neither the respondent produced any material in support of his case, nor to rebut the claim made by him any material was produced by the appellant. It is in these circumstances that the Labour Court came to the conclusion that on appreciation of the material on record such as Exhibit E-1 (Appointment letter) and Exhibit E-4 (the order of termination that the services of the respondent are not required from 20-7-1976) that the respondent had worked with the appellant for 240 days in a year. If that was the material on which the Labor Court placed reliance as no other material was placed by the appellant in rebuttal of the same, we think that the view taken by the Labour Court is in order. Therefore, the High Court was justified in not interfering with the award made by the Labour Court.
4.In as much as material has been made available before us that the respondent was in employment from 27-9-1979 to 16-9-1997, it would not be appropriate to grant any backwages for that period. The respondent will be entitled to backwages from 17-9-1997 onwards. Therefore, in modification of the award made by the Labour Court and affirmed by the High Court with 75% of backwages, the respondent shall be reinstated with backwages from 17-9-1997 onwards and not for the earlier period. The appeal is partly allowed by modifying the award made by the Labour Court in these terms. Order accordingly."

16. The contention raised by Mr.Clerk that the plea which has not been raised by the Nagarpalika before the Labour Court such plea cannot be allowed to be raised first time before this Court in question of fact. This aspect is undisputed between the parties that Nagarpalika has not raised contentions before the Labour Court that respondent workman was appointed as a back-door entry and daily wager and, therefore, 25-F is not applicable. This view has been taken by the Apex Court in Krishi Utpadan Mandi Samiti through its Secretary, Anand Nagar And Arvind Chaubey and Another reported decision (2003) 1 LLJ 507. The relevant observation in paragraph 2 is quoted as under:

"Learned senior counsel for the appellant contended that the appellant Mandi Samiti is not an "industry" governed by the provisions of the U.P. Industrial Disputes Act, 1947. The High Court has held against the appellant on the ground that such a contention was not canvassed before the Industrial Tribunal and also following an earlier decision of another Bench, the High Court dismissed the writ petition. Once the appellant did not raise such a contention before the Industrial Tribunal, it was not available to be canvassed higher up.

17. Therefore, considering all the submissions made by both the respective parties, according to my opinion in the light of the Apex Court decision that daily wager are covered by Section 25-F, the decision of the Division Bench of this Court relied upon by Ms.Nanavati cannot be accepted by this Court. Therefore, the decision which has been relied by Learned Single Judge in Special Civil Application No.10556 of 2003 dated 16th February 2004 also cannot be accepted in light of the decision given by the Apex Court on the same subject and question.

18. I have perused the award passed by the Labour Court and Labour Court has rightly discussed the evidence and come to the conclusion that workman had completed 240 days continues service and facts has not been disproved by the Nagarpalika before the Labour Court and daily wager are covered by Section 25-F of the I.D.Act, 1947, and noncompliance is not in dispute of Section 25-F of the I.D.Act, 1947. Therefore, the Labour Court has rightly set aside the orders of termination and after considering some part of gainful employment admitted by the workman, Labour Court has rightly passed the order of 20% backwages for interim period, for that Labour Court has not committed any error in passing such order which not require any interference of this Court while exercising the issue under Article 227 of the Constitution of India. Therefore, all the three petitions are not having any substance, therefore dismissed. Rule discharged. Interim relief if, any, stands vacated.