Orissa High Court
Jatia Behera And Others vs Presiding Officer on 15 September, 2021
Author: B.P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16720 of 2011
Jatia Behera and Others .... Petitioners
Mr. S.S. Mohapatra, Advocate
-versus-
Presiding Officer, Industrial Tribunal,
Orissa, Bhubaneswar and another .... Opp. Parties
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
Order No. 15.9.2021
B.P. Routray, J.
03. 1. Five unsuccessful workmen before the learned Industrial Tribunal (Tribunal) in I.D. Case No.234 of 2008 have come up in challenging the impugned award dated 26th February, 2011.
2. The reference dated 4th April, 2008 in respect of 14 workmen before the Tribunal runs as follows:
"Whether the termination of service of Sri Choudhury Mohanta and 13 others, named above, by the Executive Engineer, National Highway Division, Baripada with effect from 10th August, 1983 is legal and justified? If not, what relief the workmen are entitled to?"
3. Three of the workmen died pending adjudication of the reference and one of them was not substituted while other two were substituted by their legal representatives.
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3. The learned Tribunal allowed the claim of six workmen and rejected the case of others including the present Petitioners.
4. The case of the Petitioners is that, they were engaged as NMRs in January, 1976 in the establishment of Executive Engineer, National Highway Division, Baripada (Opposite Party No.2) and worked continuously as such till 10th August, 1983. Then they were transferred to join the Project Division, Baripada on 11 th August, 1993. But their joining reports in the new establishment on transfer were not accepted. In August 1997, they raised an industrial dispute before the District Labour Officer, Mayurbhanj leading to the present reference after failure in conciliation proceeding.
5. The management Opposite Party admitted the employment of those six successful workmen in their establishment but denied engagement of other workmen including the Petitioners in their establishment at any point of time. The management contested the claim of petitioners with the specific stance that no employer- employee relationship was ever existed between them as none of the Petitioners were ever appointed in their establishment.
6. It is submitted on behalf of the Petitioners that, the Management has failed to justify their case before the Tribunal. The burden of proof is on the Management to negate the case of the workmen that they were not engaged in the establishment, but the learned Tribunal without appreciating the same have stated that the workmen have failed to establish their case.
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7. It is seen from the award that, these Petitioners in support of their engagement under Opposite Party No.2 produced respective experience certificates issued by the then Junior Engineer of Baripada N.H. Division. Those certificates are marked as Ext. 2 with objection by the Management that, the same were never issued by the then Junior Engineer nor do not contain any signature, and are created by the Petitioners for the purpose of the case. As such the certificates being fake certificates should not be relied upon. The learned Tribunal did not place any reliance on Exhibit-2 holding those certificates as ingenuine and also rejected the contentions of Petitioners that the management failed to discharge their burden. It is further observed that the decisions in the cases of Management of Executive Engineer (Elect.) E.H.T. Construction Division v. State of Orissa, 2004 (Suppl) OLR 550; R.M. Yellati v. Assistant Executive Engineer, AIR 2006 (SC) 355 and Director, Fisheries Terminal v. Bhikubhai Meghajibhai, AIR 2010 SC 1236 as cited by the petitioners in support of their stand are not applicable to the facts of the present case as the very engagement of the petitioners are disputed by the management.
8. It is relevant here to reproduce the observations of the Supreme Court in the case of Director, Fisheries Terminal (supra). In the said case at paragraph 14 & 15, the Supreme Court have observed as follows:-
"14. Section 25-B of the Act defines "continuous service". In terms of Sub section (2) of Section 25-B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous Page 3 of 6 // 4 // service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :
"However, applying general principles and on reading the aforesaid 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 up 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 earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15. Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986- 87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, in spite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court Page 4 of 6 // 5 // in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is observed:
"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 this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
9. In the instant case the specific stand of the Management is that, the Petitioners were never in the employment under them and the certificates produced under Ext. 2 are fake being not issued by any officer of the Management. It is true that the Management has the burden to prove that the workmen have not worked continuously for 240 days in the preceding 12 months. But before that it is the primary duty of the workman to satisfy his initial engagement in the management establishment. When the Management denies the very engagement of workmen and specifically contends that a particular workman was never engaged under it at any point of time (as the petitioners in the instant case are), then entire burden cannot be shifted to the management. The prima facie burden is on the workmen to produce some material to show that they were in employment under the Management. The so-called experience certificate as produced by the Petitioners when is disputed to be a fake one without being issued by the Management, it can safely be concluded that the petitioners have failed to discharge their onus primarily.
10. Another aspect is that, despite claiming deprivation of engagement from 10th August, 1983, they raised the dispute in Page 5 of 6 // 6 // August, 1997 only, i.e. after lapse of 17 years. So, the learned Tribunal has rightly pointed out that the plea of the Management about destruction of relevant registers in the meantime cannot lead to any adverse inference against them. Further, why should the Management raise false objection against the petitioners when they admit employment of six workmen basing on the available documents. So, no reason is found to disbelieve their statement on this score. In our opinion, the lapses are on the part of the Petitioner to remain idle without raising any dispute for 17 years after their alleged disengagement. It cannot be expected that the Management is bound to keep the registers pertaining to their engagement for unlimited period, particularly beyond the officially prescribed period for destruction of registers. Petitioners having failed to substantiate their claim of initial engagement, the question of their continuity in such engagement does not arise. Thus we do not see any merit in the contention of the Petitioners.
11. The writ petition is dismissed, but in the circumstances, no orders as to cost.
12. An urgent certified copy of this order be issued as per rules.
( B.P. Routray) Judge (Dr. S. Muralidhar) Chief Justice M.K. Panda Page 6 of 6