Gujarat High Court
Kanubhai Khodabhai Parmar (Civil And ... vs Makwana Mohanbhai Motibhai on 18 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4121 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4122 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4123 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4124 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4126 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4127 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4128 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4129 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4130 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4133 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KANUBHAI KHODABHAI PARMAR (CIVIL AND ELECTRIC CONTRACTOR)
Versus
MAKWANA MOHANBHAI MOTIBHAI
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Appearance:
MR ANIL D TRIVEDI(5836) for the Petitioner(s) No. 1
MR. RISHIN R PATEL(7222) for the Petitioner(s) No. 1
MR DARSHIL THAKKAR for MR ASHISH H SHAH(2142) for the
Respondent(s) No. 1
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C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 18/07/2022
COMMON ORAL JUDGMENT
1. Rule. Learned advocate Mr. Darshil Thakkar, learned advocate appearing for the respondents waives service of notice of Rule in all these petitions.
2. With the consent of the learned advocates for the respective parties, these petitions are taken up for final hearing today.
3. Heard Mr. Rishin R. Patel, learned counsel appearing for the petitioners and Mr. Darshil Thakkar, learned advocate for Mr. Ashish H. Shah, learned advocate for the respondent - Workmen.
4. In all these petitions, the employer has challenged the awards of the Labour Court, Palanpur dated 30.10.2018, by which, the respondent - workmen, by the award has been directed to be paid compensation as set out in the respective awards. Page 2 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022
5. Before the Labour Court, the respondent - workmen had filed Statement of Claim. It was their case that they had worked for 18 years as Sweepers and were being paid Rs.131/- per day. That, they had completed 240 days in each year of service and their discontinuance from service / engagement by the petitioners was in violation of provisions of Section 25(F) of the Industrial Disputes Act. The petitioner had filed Written Statement at Exh.10 denying the statement of the workmen. It was their case that they were engaged as Contractors for a limited period of time by the Indian Oil Corporation. The workman had examined himself at Exh.12 and had produced documents at Exhs.9 to 25.
6. Mr. Rishin Patel, learned advocate for the petitioners would assail the award of the Labour Court primarily on the ground that though it was the case of the workmen that they had worked for 240 days in each year of service, no documents or Page 3 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 evidence had come on record to prove their case of they having worked for 240 days in each year of service.
6.1. In fact, Mr. Patel would draw the Court's attention to the cross-examination of the workmen, which clearly indicated that they had admitted that they had no evidence to suggest that they had worked continuously for 240 days in each year of service. That in the examination and the cross examination, in fact, it was their case that they were employees of the IOC.
6.2. Mr. Patel would further submit that the Labour Court committed an error when the employer had produced evidence in terms of muster rolls for the years 2007-08, 2008-09 and 2009-10, the period for which the contract was invoked clearly indicating that the respondent - workmen had not completed 240 days and the Labour Court misleading this evidence held that it was the Page 4 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 employer who had failed to deny the case otherwise by evidence of the workmen having not worked for 240 days and the liability therefore was fasten on the employer.
7. Mr. Darshil Thakkar, learned advocate appearing for Mr. Ashish H. Shah, learned advocate for the respondent - workmen in all these petitions would extensively read the findings of the labour Court and submit that the labour Court had rightly on the basis of the documents at Exh.19 come to the conclusion that insufficient evidence was produced by the employer to deny the case of the workmen and they having completed 240 days in service. The Labour Court in Mr. Thakkar's submission had rightly relied on a decision of the Hon'ble Supreme Court in the case of R.M. Yellatti v. Assistant Executive Engineer reported in 2006(1) SCC 106 and held that the employer had failed to produce evidence to the contrary and, therefore, the award directing the petitioners to pay compensation was just and Page 5 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 proper.
8. Perusal of the award would indicate that it was the statement of claim of the respondent - workmen which was filed by them asserting that they were working with the Office of the employer of the petitioner for the past 18 years on Daily Wage of Rs.131/-. A statement was made in the Statement of Claim that they had completed 240 days in each year of service. The oral evidence of the workmen which is produced on record indicates that in fact it was a case of the respondent workmen that he had been working for a period of over 18 years as a regular workman of the IOC. It is noted that IOC was not made a party to to the Reference. When the employer raised an objection, the burden of the omission of the IOC not being made a party was taken as omission on the part of the employer. 8.1. Secondly, on record, the employer had brought evidence in terms of muster roll for the Page 6 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 periods from the years 2007 to 2009 to substantiate their case that they were engaged as Contractors for a period from the year 2007 and, therefore, the stand of the workmen that they were working since 18 years cannot be believed.
8.2. Perusal of the oral evidence of the workman also indicates that they had admitted before the Labour Court that they had no proof to suggest that they worked for 240 days in each year of service.
9. Well settled it is, by the decisions on which Mr. Patel. Learned advocate for the petitioners would rely on to suggest that it is the initial burden on the workmen to prove that they had worked for 240 days in each year of service. He would rely on the following decisions:
a) Krishna Bhagya Jala Nigam Limited v.
Mohammed Rafi reported in 2009(11) SCC 522
b) Range Forest Officer v. S.T. Hadimani Page 7 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 reported in 2002(3) SCC 25
c) Krishna Bhagya Jal Nigam Limited v. Mohd. Rafi reported in 2006(9) SCC 697
d) Rajasthan State Ganganagar S. Mills Limited v. State of Rajasthan reported in 2004(8) SCC 161
e) Municipal Council, Sujanpur v. Surinder Kumar reported in 2006(6) SCC 173 &
f) R.M. Yellatti v. Assistant Executive Engineer reported in 2006(1) SCC 106.
10. Coming to the decision in the case of R.M. Yellatti (Supra), which the Labour Court has considered as the Judgment helping the workmen is a clear misleading of the law. When the judgment is read, the Hon'ble Supreme Court has clearly held that though the provisions of the Evidence Act in terms d0 not apply to the proceedings under Section 10 of the Industrial Disputes Act, the repeated view that is taken is 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 workmen stepping into the witness box and adducing cogent evidence both; Oral as well as Page 8 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 Documentary. In the facts on hand, what is evident is that a bone statement is made in the statement of claim that the respondent workmen had worked for 240 days in each year of service. In fact, when workmen had stepped into the witness box in the cross-examination, he had admitted that he had no proof to show that he had completed 240 days in each year of service. This case, would therefore, specifically is a case where the Labour Court had clearly misapplied the law laid down by the decision in the case of R.M. Yellatti (Supra).
11. Even recently, the Hon'ble Supreme Court in the case of State of Uttarakhand and others v. Sureshwati reported in 2021(3) SCC 108 had held that it is the onus upon workman to prove that he / she had worked continuously for 240 days in twelve months.
12. However, it will be in the fitness of things to reproduce the relevant paras of the citations which Page 9 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 read as under:
[1] Krishna Bhagya Jala Nigam Limited (Supra):
"8. In a large number of cases the position of law relating to the onus to be discharged has been delineated. In Range Forest Officer v. S.T. Hadimani (2002 (3) SCC 25), it was held as follows:
"2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10.8.1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar (2001) 9 Page 10 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 SCC 713. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."
The said decision was followed in Essen Deinki v. Rajiv Kumar (2002 (8) SCC 400).
8. In Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr. (2004 (8) SCC 161), the position was again reiterated in paragraph 6 as follows: Page 11 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022
C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 "6. It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit.
It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year.
These aspects were highlighted in Range Forest Officer v. S.T. Hadimani (2002 (3) SCC 25). No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-
production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed."
9. In Municipal Corporation, Faridabad v. Siri Niwas (2004 (8) SCC 195), it was held that the burden was on the workman to show that he was working for more than 240 days in the preceding one year prior to his alleged retrenchment. In M.P. Electricity Board v. Hariram (2004 (8) SCC 246) the position was again reiterated in paragraph 11 as follows:
"11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of Page 12 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of Municipal Corporation, Faridabad v. Siri Niwas JT 2004 (7) SC 248 wherein this Court disagreed with the High Court's view of drawing an adverse inference in regard to the non-production of certain relevant documents. This is what this Court had to say in that regard:
"15. A court of law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non- production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw Page 13 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 any adverse inference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent."
10. In Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. (2005(5) SCC 100) a three-Judge Bench of this Court again considered the matter and held that the initial burden of proof was on the workman to show that he had completed 240 days of service. Tribunal's view that the burden was on the employer was held to be erroneous. In Batala Cooperative Sugar Mills Ltd. v. Sowaran Singh (2005 (7) Supreme 165) it was held as follows:
"13. So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officer v. S.T. Hadimani (2002 (3) SCC 25) the onus is on the workman."
The position was examined in detail in Surendranagar District Panchayat v. Dehyabhai Amarsingh (2005 (7) Supreme 307) and the view expressed in Range Forest Officer, Siri Niwas, M.P. Electricity Board cases (supra) was reiterated.
11. In R.M. Yellatti v. The Asst. Executive Engineer (JT 2005 (9) SC 340), the decisions referred to above were noted and it was held as follows:
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C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 "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 Page 15 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 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."
The above position was again reiterated in ONGC Limited v.
Shyamal Chandra Bhowmik at SCC pp. 340-43, paras 7-11 and Ranjit Sagar Dam v. Sham Lal."
(2) Sureshwati (Supra):
"25. On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work. The Respondent has failed to discharge the onus to prove that she had worked for 240 days' in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days' in the twelve months preceding the date of her alleged termination on 8.3.2006, which she failed to discharge.
(3) R.M. Yellatti (Supra):Page 16 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022
C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 "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 Page 17 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022 C/SCA/4121/2019 JUDGMENT DATED: 18/07/2022 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."
13. For all the aforesaid reasons, the petitions are allowed. The awards passed by the labour Court in the respective References by the Labour Court are hereby quashed and set aside.
14. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No order as to costs.
(BIREN VAISHNAV, J) VATSAL S. KOTECHA Page 18 of 18 Downloaded on : Wed Jul 20 21:00:43 IST 2022