Gujarat High Court
Geb And Anr. vs Maganbhai Chhaganbhai Patel on 7 September, 2006
Author: H.K. Rathod
Bench: H.K. Rathod
ORDER H.K. Rathod, J.
1. Heard the learned Advocate, Mr. A.D. Oza, on behalf of petitioners and learned Advocate, Mr. M.K. Patel, appearing on behalf of respondent in one group. In Rest of the matters, this Court has not issued any notice.
2. In SCA No. 19145/2006, the petitioners have challenged the award passed by Labour Court, Valsad in Reference No. 848/1990 dated 21.1.2006, whereby, the Labour Court has granted reinstatement with continuity of service with 20 % back wages of interim period.
In SCA No. 19146/2006, the petitioners have challenged the award passed by Labour Court, Valsad in Reference No. 849/1990 dated 23.1.2006, whereby, the Labour Court has granted reinstatement with continuity of service with 20 % back wages of interim period.
In SCA No. 17971 to 17986 of 2006, the petitioners have challenged the award passed by Labour Court, Valsad in Reference No. 832/1990, 839/1990, 824/1990, 844/1990, 847/1990, 833/1990, 834/1990, 835/1990, 843/1990, 836/1990, 837/1990, 842/1990, 840/1990, 841/1990 and 845/1990 dated 14.12.2005, whereby, the Labour Court has granted reinstatement with continuity of service with 20 % back wages of interim period.
In SCA No. 10306 to 10319 of 2006, the petitioners have challenged the award passed by Labour Court, Valsad in Reference No. 816/1990 dated 27.10.2005, whereby, the Labour Court has granted reinstatement with continuity of service with 20 % back wages of interim period.
2.1 The award passed by Labour Court Valsad in different references and different date of award are under challenge before this Court. But in all the awards, contention raised by petitioners are same and statement of claim / demand made by workmen are almost same. In all the references, the Labour Court has granted similar relief in favour of respondents workmen granting reinstatement with 20% back wages. Therefore, against this challenge, learned Advocate, Mr. A.D. Oza, submitted that workmen were working as NMR from 1982 to 1985 in different divisions namely Dharampur-Valsad and they were joined as a daily wagers between 1982 to 1987 and accordingly, they were working with the Board. He submitted that none of the workmen had completed continuous service of 240 days with the petitioners. He also submitted that relevant muster rolls were produced by petitioner before the Labour Court, Valsad. Even looking to the muster roll itself, none of the workmen had completed continuous service of 240 days in a year. He also submitted that these are the workmen working on casual basis, as and when work is available, work has been given to such employee. Each Division is having different muster. Therefore, continuity of the number of musters may not be there which has been considered by Labour Court, Valsad against the petitioners. Therefore, according to him, the Labour Court has committed gross error in coming to such conclusion. The muster has to be allotted by head office to Division office which ultimately return to the head office. According to him, some of the workmen have left the job as a daily wager and discontinued from Valsad Division because the work was not available for that certain period. Whatever the period workmen were not on job or worked, for that period muster was not produced before the Labour Court. So the decision of the Labour Court to have adverse inference against the petitioners is contrary to law. He submitted that workmen have been examined before the Labour Court and cross-examined by the petitioners. He read over before this Court the evidence of the workmen as well as cross-examination of the workmen and evidence of the witnesses of the petitioners and cross-examination of such witnesses before this Court. He also submitted that if the workmen have not completed continuous service of 240 days in a year, then, it is not necessary for the petitioners to comply with Section 25F of the Act. Written arguments were placed on record by the petitioners wherein number of judgments were referred. But, according to him, the Labour Court has not considered the said decisions. He read over certain portion and relevant paragraphs of the award passed by Labour Court, Valsad and pointed out that Labour Court has committed error in coming to conclusion that it is a burden upon the employer and not upon the workmen to prove 240 days continuous service. He also submitted that none of the workmen has given any evidence rebutting the documentary evidence which has been produced by petitioners. He also submitted that statement which has been placed before this Court for perusal, wherein, none of the workmen has completed continuous service of 240 days and NMR system has been discontinued from 1987. Therefore, there is no possibility of reinstatement of any of the workmen. He also submitted that onus is on the workmen to prove continuous service and 240 days in a year, which the workmen failed to do so and, therefore, Labour Court has committed gross error in coming to such conclusion. He relied upon the following decisions in support of his submissions; (i) 2005 (8) Scale 627 and 631 (ii) 2005 LLR 1211 SC, (iii) 2006 LLR 65 SC and (iv) 2004 LLR 255 (Gujarat High Court). He also submitted that as per establishment circular No. 446 NMR becomes permanent employee if he completed continuous service of 960 days in a four years' period or 240 days continuous service in a year. He submitted that the system to absorb employees under this circular has been discontinued. So at the relevant time, when the circular was in effect, none of the workmen concerned in the reference has completed 240 days in a year or 960 days in a four years' period. Therefore, presumption that workmen have not completed 240 days in a year. Except this, no other submission is made and no other decision is relied by him.
3. Learned Advocate, Mr. M.K. Patel, appearing on behalf of respondent, supported the award passed by Labour Court, Valsad in respect to one group of the petitions. He submitted that these are the finding of fact and appreciation of facts by the Labour Court, therefore, this Court cannot disturb such finding which is based on factual aspect considering evidence on record while exercising the power under Article 227 of the Constitution of India. He submitted that Labour Court has rightly dealt with the matter and has considered that workmen remained in continuous service from date of engagement till the date of their termination. In between, there is no termination by the petitioners of the workmen. Meaning thereby that workmen concerned remained in service for more than 1 years' period with the petitioners and in between no termination by the petitioners of the workmen, then workmen is entitled the benefit of Section 25F of the Act. However, he submitted that each workman has given deposition before the Labour Court that they remained in service for more than 1 year, completed 240 days by discharging the onus upon the workmen to prove 240 days continuous service, then, the burden is shifted upon the employer to disprove these facts by positive evidence which has not been proved by petitioners, therefore, the Labour Court has rightly appreciated the oral and documentary evidence and not committed any error which requires any interference by this Court.
4. I have considered the submissions made by both the learned Advocates and have also perused all the relevant awards in different references. award passed by Labour Court, Valsad. The dispute has been raised by workmen immediately from the date of termination w.e.f. 1.6.1987. The dispute referred for adjudication on 4.2.1988 by the appropriate Government. According to workmen, they were working as a labourer for more than 10 years with the petitioner Board and Board has not given any documents, namely, muster card, pay slip, earned leave card and identity card while working with the petitioners. There is no appointment order issued by petitioners and there is no order of termination issued by petitioners. So, according to the workmen, they do not have any documentary evidence in their possession to prove continuous service of 240 days unless and until positive evidence is produced by petitioners before the Labour Court. According to workmen, their services were terminated on 1.6.1987 and provisions of Section 25F of the Act has been violated. Therefore, the prayer is made to reinstate them with continuity of service with full back wages of interim period. Reply has been filed by the petitioners before the Labour Court denying the averments made in the statement of claim. The stand was taken by petitioners before the Labour Court that these workmen were working as a casual labourer in a different time, for different period, at different station and in different division. The services of the workmen were not terminated by petitioner. Lastly, on 15.2.1987, they were in service and from 16.2.1987, they were not in service. Thereafter, certain documents were produced by petitioners before the Labour Court. The oral evidence was led by respondent workmen and petitioners before the Labour Court. The petitioners have cross-examined the workmen. Similarly witnesses of petitioners was also cross-examined by the workmen. Thereafter, the Labour Court has framed the issue and decided the matters on merits. The Labour Court, after appreciating the oral evidence as well documentary evidence produced by petitioners vide Exh.44 to Exh.69 and considering the oral evidence in support of such documentary evidence on behalf of petitioner, ultimately, come to conclusion that whatever the musters have been produced by the petitioners are not complete musters for the entire period in which workmen were remained in service with the petitioners. The only musters for limited period were produced. The Labour Court is having little doubt due to different number in musters roll because in between the work was remained continued but, musters were not produced for relevant period. Therefore, the Labour Court was having impression that there is something suppressed or hide by the petitioners and, therefore, certain musters were not produced by the petitioners to rebut the evidence of the workmen. The Labour Court has observed the musters which were produced by petitioners wherein in certain musters, names of the workmen were not noted by the petitioners. Date of termination which has been suggested by the petitioners has also credited a doubt in light of the evidence on record. The stand which has been taken by the petitioners that workmen were themselves not reported for work w.e.f. 16.2.1987, has not been believed in light of the musters which has been examined by the Labour Court. The work was available which facts are proved on the basis of the musters. Therefore, though work was available but names of the concerned workmen were not available in the musters which were produced by petitioners before the Labour Court. The Labour Court has considered that initially it is a burden upon the employee to prove 240 days continuous service and not of the employer. But Labour Court has considered that in light of the facts that when workmen deposed before the Labour Court that they remained in service with the petitioners for more than 10 years and they were cross-examined by the petitioners, then, initial onus on the workmen has been discharged, then, it is for the petitioners to disprove such facts by producing positive evidence before the Labour Court. The Labour Court has appreciated the facts based on record and also appreciated the oral evidence led by both the respective parties. The Labour Court has rightly appreciated difficulty and hard reality on the part of the workmen. If the workmen not having any documentary evidence with them and it is admitted by the petitioners that no documents were given to the workmen by the petitioners from the date of engagement till the date of termination, then, on what basis workmen can prove 240 days continuous service, except the oral evidence which is available with them by deposing before the Labour Court. This aspect has been rightly appreciated by the Labour Court that though, according to law and decision of the Apex Court, burden is upon the workmen to prove continuous service of 240 days, but in light of this factual background, when workmen were not having any documentary evidence, then, their oral evidence should have to be considered to be a proof of continuous service of 240 days in a year. Then, burden is shifted upon the employer to disprove these facts by producing oral and documentary evidence before the Labour Court. In light of this aspect, the Labour Court has examined the matter and come to the conclusion that looking to the evidence of the workmen who have completed continuous service of 240 days, remained in service continuously for 10 years as per their evidence and though cross-examined by the petitioners, no adverse factors have been brought to the notice of the Labour Court. Therefore, the Labour Court has come to the conclusion that petitioners have failed to produce all the musters rolls in respect to each workman for relevant period. The submissions made by petitioner that if the workmen have not satisfied the condition of Circular No. 446 dated 14.2.1985, therefore, the presumption must be against the workmen that they have not completed 240 days continuous service, otherwise they were asked for benefit under said the circular. This contention has been rightly rejected by the Labour Court on the ground that it is not proved on record, whether this circular was brought to the notice of the workmen or not. For that, no evidence was produced by petitioners on record. Thereafter, the Labour Court has considered cessation of work means not to provide the work for some days or number of days during the continuance of service, cannot be considered to be a termination by employer. The Labour Court has also considered the contention raised by petitioners that it is a day-to-day appointment because in the morning workmen were engaged and evening, their services were terminated. Again, in the morning they were engaged and evening, their services were terminated. The Labour Court has considered this day-to-day engagement theory which has been developed by the petitioners which is an afterthought on the ground that salary / wages were paid to the workmen on monthly basis. There is no written appointment order and termination orders were issued to workmen on day to day basis produced on record by petitioners. Therefore, workmen were remained in service and contention of day-to-day engagement has been rightly rejected by the Labour Court. The Labour Court has also considered that there was no justification to terminate the service of the workmen. According to evidence of the witness of the petitioner, the reason given by the witness that service has been terminated because the work which was carried out by the workmen has been entrusted to the contractor and that is how it resulted into termination of workmen. It is clear evidence of the witnesses of the petitioner which are on record and that has been rightly considered by the Labour Court and on that basis, the Labour Court has come to conclusion that workmen remained in service continuously for more than 1 year within the meaning of Section 25(B)(1) of the Act and they entitled the benefit under Section 25F of the Act, not complied with undisputely by petitioners which vitiate the order of termination means termination order becomes void ab-initio. This finding of fact after appreciating oral and documentary evidence which are on record and thereafter, the Labour Court has considered the decision which has been relied by petitioners before the Labour Court and considering the contradictory stand taken by petitioner before the Labour Court and also inferred contradictory facts from the record. The Labour Court has ultimately come to conclusion that termination of the workmen amounts to retrenchment which violated the provisions of Section 25F of the Act and, therefore, workmen are entitled the reinstatement.
5. Thereafter, the Labour Court has considered the question of back wages. After considering the fact that reference of 1988, termination of 1987, affidavit was filed in the year 1999 and the matter remained pending before the Labour Court for more than 17 years for no fault of either party, therefore, the Labour Court has considered that only 20% back wages of interim period has been granted with cost of Rs. 1500/-.
6. I have perused the award and reasoning given by Labour Court, as referred above. The whole dispute which has been adjudicated by the Labour Court, Valsad based on facts. The Labour Court has considered oral as well as documentary evidence produced by both the parties and arrived at conclusion which is clearly a finding of fact based on record. The finding of fact recorded by the Labour Court, this Court cannot disturb such finding of fact while exercising the power under Article 227 of the Constitution of India unless the finding is baseless and perverse. Therefore, according to my opinion, the Labour Court has given reasoned order with application of mind, discussed each and every contention raised by petitioner giving answer to contention and for that, Labour Court has not committed any error which requires interference by this Court while exercising the power under Article 227 of the Constitution of India.
6.1 The decisions which are relied by learned Advocate, Mr. Oza, are not applicable to facts of the present case. Section 25(B)(1) and (2) of the Act are relevant. Section 25(B)(1) provides continuous service of 1 year without interruption or authorized interruption. Then, workman entitled benefits of Section 25F of the Act. There, there is no need to prove continuous service of 240 days as under Section 25(B)(2). In this case, each workman completed more than 1 year service with authorized interruption. Meaning thereby, workmen satisfied Section 25(B)(1). No contrary or rebuttal evidence produced by petitioner. The initial burden upon workman to prove Section 25(B)(1) or (2). If that is discharged then onus shifts upon the employer to disprove the facts. In this case, it is not disproved by petitioner. The petitioners have not produced total musters before the Labour Court. This aspect has been considered by this Court in SCA No. 5566 of 1999 in the case of Gujarat State Forest Development Corporation Ltd. v. Budhabhai Kamjibhai Nizama dated 31.8.2006. The relevant para.11, 12 and 15 are quoted as under:
11. It is not the case of the petitioner Corporation that such kind of termination is covered by exception of Section 2(oo) of the I.D. Act, 1947. Therefore, such kind of termination is satisfied the requirement of Section 2(oo) of the I.D. Act, 1947 and, therefore, it amounts to retrenchment. If workman day-to-day engaged and each day appointment and termination, then, Corporation has to pay daily payment to workman. But in this case payment was not made. The monthly payment made to the workman. So the defence of Corporation about day-to-day engagement is false and afterthought as well as contrary to record. The provision of Section 25(B)(1) of the I.D. Act, 1947 has been considered by this Court in case of Moti Ceramics Industries v. Jivuben Rupabhai 2000 II CLR 156, wherein it is held that the cessation of work cannot be considered to be termination as decided by this Court in case of D.S. Vasavada v. Regional P.F. Commissioner, Gujarat reported in 1985 (1) GLR 499. The decision of Single Judge in S.R. Bharai v. Union of India reported in 2006 II CLR 167. Section 25B(1) of the I.D. Act, 1947 is satisfied by the workman remaining in service from January, 1986 to 3.12.1987. It is not the case of petitioner Corporation that during this period from January, 1986 to December, 1987, for even a single day, the service of workman was terminated by the corporation or interrupted being an unauthorized absence or any other reason. If the cessation of work during this entire period is not due to fault on the part of workman, then, it amounts to continuous service as defined under Section 25B(1) of the I.D. Act, 1947. The period of one year continuous service has been completed by the workman while remaining in service from January, 1986 to 3.12.1987. Therefore, Section 25F of the I.D. Act, 1947 requires that if the workman is remained in continuous service not less than one year, then, his service cannot be terminated without complying with the provisions of Section 25F of the I.D. Act, 1947. The provision of Section 25F I.D. Act, 1947 has not made clear that 240 days continuous service is necessary. Section 25F where no workman employed in any industry who has been in continuous service for not less than on year under employer, shall be retrenched by that employer unless and until Clause (a), (b) and (c) is required to be complied with by Corporation. From the perusal of record produced by petitioner Corporation, the respondent workman was employed by petitioner Corporation, who has been in continuous service from January, 1986 to 3.12.1987 for not less than one year under the petitioner Corporation, whose service has been terminated by way of retrenchment and non compliance of Section 25F of the I.D. Act, 1947 itself render the termination ab initio void. In such circumstances, merely declaration is enough, not required to be even set aside the termination order. The condition precedent must have to be satisfied under Section 25F of the I.D. Act, 1947 if it is not satisfied, then, that itself is enough to declare that termination order is ab initio void. Therefore, considering this fact from record, not less than one year service has been proved within the meaning of Section 25B(1) of the I.D. Act, 1947.
12. Recently also, the Division Bench of Delhi High Court has considered the scope of Section 25(B)(1) of the I.D. Act, 1947 in case of Surajpal Singh v. The Presiding Officer and Anr. reported in 2006 Lab.I.C. 601. Relevant Para. 27, 28, 29 and 30 are quoted as under:
27. Sections 25B(1) of the Act being beneficial and welfare provision has to be liberally and broadly interpreted, yet at the same time we cannot amend and modify a statutory provision by incorporating and adding words. Out role is to interpret the law as it exists and not to add and subtract words already used by the Legislature or usurp the role of the Legislature. The Legislature in Section 25B(2) has referred to period of 240 days in the preceding year following the date of termination as the criteria to determine and decide whether a workman has been in continuous service for a period of one year. The Legislature, however, has deliberately not mentioned the period of 240 days during the period of one year as the criteria in Section 25B(1) of the Act. Section 25B(1) no where specifies that if a workman has worked for a period of 240 days in a period of one year, he is deemed to be in uninterrupted service for one year. The period of 240 days specified in Section 25B(2), cannot be legislated and read into Sub-section (1)We cannot, therefore, legislate and incorporate the words 240 days into Section 25B(1) of the Act. Our judicial pen cannot write these words into the aforesaid sub-section and read then in Section 25B(1), when the Legislature has consciously and deliberately not used those words. The requirement of Legislature, as far as Section 25B(1) of the Act is concerned, is clear and unambiguous. It refers to continuous or uninterrupted service for a period of one year i.e. 12 consecutive months. We cannot by judicial interruption decrease this period of 365 days to 240 days. Of course the period of one year should be interrupted liberally as has been done in the present judgment. The two judgments, in the case of Moti Ceramic Industries (2000 Lab IC 1921)(Guj)(supra) and Metal Powder Co. Ltd. (1985 (2) Lab LJ 376) (Mad)(Supra) support and have similarly interpreted Section 25B(1) and (2) of the Act. Bombay High Court in the case of New Great Eastern Spinning and Weaving Co. Ltd. v. Vasant Mahendeo Bidia reported in 2005(1) Cur LR 50 has also taken a similar view.
28. We wish to further clarify that the above interpretation is not against workmen. The Legislature has been careful and cautious to include certain periods like authorized leave, legal strikes, lock outs, periods during which the employer illegally refuses to permit the workman to do work etc. as a period during which the workman is deemed to be in continuous or uninterrupted service. Therefore, in a given case, a workman may have worked for in fact less than 240 days, but after including the specified periods mentioned in Section 25B(1), his continuous or uninterrupted service might be for a period of 12 consecutive months. Accordingly, we hold that period of 240 days is not relevant as far as Section 25B(1) is concerned as the figure 240 days is not mentioned in the said sub-section and is mentioned only in Sub-section (2). It is not possible for this Court to legislate and add the words 240 days in Section 25B(1) of the Act.
Section 25B(2) of the Act:
29. Sub-Section (12) of Section 25B also incorporates a deeming fiction. As per Sub-section (2) to Section 25B, if a workman has worked for 240 days or 190 days (in case he is employed below ground in a mine) during the period of 12 calender months preceding the date with reference to which calculation is to be made, he shall be deemed to be in continuous service for a period of one year. In case of retrenchment, the reference date will be the date on which the retrenchment order is passed. Therefore, if a workman has worked for 240 days (190 days in case he has worked below ground in a mine) during the period of 12 calender months preceding the date of his retrenchment, the said workman is deemed to have rendered continuous service for a period of one year. Section 25B(2) refers to a period of 12 months immediately preceding and counting back wages from the relevant date and not to any other period of employment. If a workman has worked for more than 240 days during this period of 12 months prior to his retrenchment, he is deemed to be in continuous service for a year. The words preceding the date with reference to which calculation is to be made are not redundant or otiose. The period of 12 months mentioned in Section 25B(2) is not therefore any period of 12 months but the immediately preceding 12 months with reference to which calculation is to be made.
The two Clauses 25B (1) and 25B (2) in operation.
30. Section 25B(2) as per the clause itself, comes into operation when a workman has not been in continuous service within the meaning of Sub-Section (1) for a period of one year. However, in practice and for all practical purposes a workman will be entitled to protection under Section 25F of the Act, if conditions mentioned in either of the two clauses are satisfied. The Sub-Sections are therefore in alternative. Requirement of Section 25B(1) is uninterrupted service for a period of one year and Sub-Section 2 requirement is service for a period of 240 days (or 190 days in case worker is employed below ground in a mine) during the preceding 12 calendar months prior to the date of termination/ retrenchment. By deeming fiction in Section 25B(2), the workman who has worked for aforesaid period in the preceding 12 calendar month prior to the date of termination/retrenchment is deemed to have been in continuous service for not less than one year. The two provisions, namely, of Section 25B(1) and 25B(2) are separate and distinct. The requirements and conditions to be satisfied to some extent are also different.
15. In view of both the aspects, the workman has satisfied the requirement under Section 25(B)(1) and (2) of the I.D. Act, 1947 and non-compliance of Section 25F of the I.D. Act, 1947 is undisputed before the Labour Court. Therefore, natural consequence has to be reinstatement with continuity of service. Certain decisions have been relied by learned Advocate, Mr. Mehta. The Surendranagar District Panchayat v. Dahyabhai Amarsinh . Relevant Para.8 which is quoted as under:
8. To attract the provisions of Section 25F, one of the condition required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workmen shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in Sub-Section (1). The workmen must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of Sub Section (1) of Section 25B is that the workmen should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in Clause (a) and (b) of Sub-s(2). By the legal fiction of Sub-s 2(a)(i), the workmen shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workmen has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.
7. The decision which has been relied by learned Advocate, Mr. Oza, of Apex Court as well as this Court. I have considered that decision which has been relied and cited by learned Advocate, Mr. Oza. The decision of the Apex Court or High Court is applicable to the facts of each case. The Apex Court has considered the particular facts and come to the conclusion which conclusion straightway cannot applicable to the different facts on record. Looking to the facts on record before the Labour Court, the burden upon the employee to prove 240 days continuous service is right being a settled law laid down by Apex Court but, in such circumstances, when workmen were not having any documents with them from appointment order till the date of termination order, identity card, muster roll or any other documents, then, how to discharge such initial burden except by oral evidence of the workmen. Except that workmen are not having any proof to prove 240 days continuous service before the Labour Court. This aspect has been considered by Apex Court in recent decision in case of R.M. Yellatti v. Assistant Executive Engineer . This decision of Apex Court is delivered by three Judges Bench of Apex Court. However, the decision which has been relied by learned Advocate, Mr. Oza, are of two Judges Bench of Apex Court. The Apex Court has in the aforesaid decision considered almost earlier decision relating to the question and then come to conclusion that in public body / State Government it is difficult to observe the principle which has been laid down in other cases by the casual / daily wager employee in absence of documentary evidence. Therefore, in such circumstances, the oral evidence before the Labour Court of the workmen is enough to discharge the initial burden for proving 240 days continuous service before the Labour Court. Thereafter, it is burden upon the employer to disprove this fact by oral evidence or by producing cogent documentary evidence. This discussion is in Para. 17, 18 and 19 which is quoted as under:
17. Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22.11.1988 to 20.6.1994. This period is the period borne out by the certificate (Ex.W1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex.M4 and Ex.M5, which indicated that the workmen had worked for 43 days during the period 21.1.1994 to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the division bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the labour court and confirmed by the learned single judge vide order dated 7.6.2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and Ex.W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani-591304. In the present case, the defence of the management was that although Ex.W1 refers to the period 22.11.1988 to 20.6.1994, the workman had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact.
19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government.
8. In view of these observations made by Apex Court which is applicable to facts of this case. However, this is a decision of three Judges Bench of Apex Court which is binding precedent under Article 141 of the Constitution of India. The Apex Court has examined the same question being a ratio applicable to the facts of this case. Therefore, according to my opinion, the Labour Court has rightly appreciated the evidence and come to right conclusion with application of mind by giving cogent reasons in support of its conclusion. For that Labour Court has not committed any error which requires any interference by this Court.
9. This Court is having very limited jurisdiction under Article 227 of the Constitution of India, therefore, the finding of facts cannot be disturbed unless it perverse. This aspect has been considered by the Apex Court in Laxmikant Revchand Bhojwani and Anr. v. Pratapsing Mohansingh Pardeshi . Relevant observations made by the apex court in para 9 of the said judgment are therefore reproduced as under:
9. The High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
10. In Ouseph Mathai and Ors. v. M. Abdul Khadir , the Apex Court observed as under in para 4 and 5:
4. It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. In fact power under this Article cast a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.
5. In Waryam Singh v. Amarnath 1954 SCR 565 this Court held that power of superintendence conferred by Article 227 is to be exercised more sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors. This position of law was reiterated in Nagendra Nath Bose v. Commr. of Hills Division 1958 SCR 1240. In Bhahutmal Raichand Oswal v. Laxmibai R. Tarta this Court held that the High Court could not, in the guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the Legislature has not conferred a right of appeal. After referring to the judgment of Lord Denning in R v. Northumber Compensation Appeal Tribunal, Exparte Shaw 1952 (1) All ER 122, 128 this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam held : (SCC p.460 para 20)
20. It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and not based on any material evidence or it resulted in manifest injustice (see Trimbak Gangadhar Teland 1977 (2) SCC 437). Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the Appellate Bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error.
11. In case of Roshan Deen v. Preeti Lal , the Apex Court observed as under in paragraph 12:
12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned Single Judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it (vide State of UP v. District Judge, Unnao ). The very purpose of such constitutional powers being conferred on the High Court is that no man should be subjected to injustice by violating the law. The lookout of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-produce of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law.
12. Therefore, according to my opinion, the Labour Court has rightly dealt with the matters comprehensively and considering each and every contention of the petitioners, the Labour Court has given cogent reasons in support of its conclusion. It is not a perverse finding which has been given by the Labour Court. On the contrary, this view is based on legal evidence which are on record. Therefore, according to my opinion, the Labour Court has not committed any error which requires any interference by this Court while exercising the power under Article 227 of the Constitution of India. This Court is having very limited jurisdiction under Article 227 of the Constitution of India, cannot act as an appellate authority. This Court cannot re-appreciate the evidence which has been appreciated by the Labour Court. In case when two views are possible, even though interference by this Court is unwarranted under Article 227 of the Constitution of India. This view has been taken by the Apex Court in case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr. reported in AIR 2000 SC 1508. Relevant observations are in Para. 19 which is quoted as under:
19. The learned single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly one taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned single Judge and in ordering restoration of the Award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of re-assessing the evidence and arriving at findings of ones own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below.
13. Hence, there is no substance in the present petitions. Accordingly, present petitions are dismissed.