Allahabad High Court
Siel Limited, Unit Mawana Sugar Works vs State Of U.P. Through The Secretary, ... on 29 November, 2007
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. Present writ petition under Article 226 of the Constitution of India is against the award dated 27.06.1998 passed by the Presiding Officer, Industrial Tribunal-V, U.P., Meerut in Adjudication Case No. 137 of 1995, which has been published on 16.01.1999 in view of the Government Order No. 947 dated 19.12.1998.
2. The aforesaid award was given by the Industrial Tribunal on Reference being made under Section 4-K. for the adjudication of the following disputes:
KYA SEVAYOJAKO DWARA APNE SHRAMIK SHRI DILIP MANI DUBEY, SON OF SRI R.N. DUBEY KO DINAK 1.2.95 SE SEVA SE PRATHAk/VANCHIT KIYA JANA UCHIT TATHA/ATHVA VAIDHANIK HAI? YADI NAHI, TO SAMBANDHIT SHRAMIK KYA HITLABH/ANUTHOSH (RELIEF) PANE KA ADHIKARI HAI TATHA ANYA KIS VIVRAN VA TITHI SAHIT?
Tribunal has framed the following additional issues:
1. Whether the concerned workman was engaged for temporary nature of work, if so, its effect?
2. Whether the workman concerned worked for more than 240 days during the last year of his service?
3. Whether the real nature of dispute relate to the permanancy of job of the workman, If so, its effect.
Petitioner is the employer and the respondent No. claimed to be workman under the U.P. Industrial Disputes Act. Petitioner had a unit named as Mawana Sugar Works, Mawana, district Meerut, involved in the manufacturing of sugar, in which the respondent No. 3 was the workman. It is claimed that the respondent No. 3, the workman was initially employed as Fitter Helper on 26.12.1990 against a post which was of permanent nature. When he came to know that he was not being entitled to the benefits to which a regular workman was entitled to, he raised oral demand on 31.01.1995, which resulted in his termination on 01.02.1995 by an oral order and since then he had been unemployed. The case of the employer was that the workman concerned was engaged on casual basis as and when exigency arose and that his services were not terminated and he himself stopped reporting after 01.02.1995. According to the case of the employer, the real dispute related to the regularisation, which had been raised in the garb of the termination. According to the employer, the worker worked only for 140 days from February, 1994 to January, 1995 and did not worked at all in the month of April, 1994 to June, 1994, August and November, 1994. In reply to the aforesaid, the workman submitted that the employer had fabricated the account of his working days preceding to termination and he had not worked as temporary hand and the employer had not given any detail of his alleged casual, temporary and intermittent engagement. The claim was that he had worked for more than 240 days and his termination under Section 6-N of U.P. Industrial Disputes Act was without any notice was unjustified. From both the sides various documents have been filed and the statements were recorded. The Presiding Officer decided aforesaid three issues as follows:
Addl. Issue Nos. 1 and 2The case of the workman is that he was working on a permanent post and that he was never told that he was a temporary hand, whereas the case of the employers is that the workman was a temporary hand and he was not a permanent workman. The workman had filed a number of documents in support of his case and these documents showed him as a temporary hand, as such the workman's contention that he was never told that he was a temporary hand is not convincing. I have no doubt that the workman worked as a temporary hand and is not a permanent hand. I, therefore, hold that the workman was engaged by the employers in temporary capacity. Issue No. 1 is decided in favour of the employer.
As to the contention of the employer that the workman worked only for 142 days prior to his alleged termination, it is difficult to believe in the version of the employers and they have not filed extract of form-12 and extract of attendance register filed by them cannot be relied on. Against this, the workman had repeatedly asserted that he had been working continuously since his employment in January, 1988. It may be pointed out that the contention of the employers is that the workman used to be engaged as substitute or as additional hand to meet exigency of work, but neither oral nor documentary evidence has been adduced in support of his contention. EW-l's oral testimony is of general type and is of little help to the employers. So far as testimony of E.W.-2 is concerned, it is about so called attendance register and it has been pointed out earlier that this register cannot be accepted on face value and it is not form-12 which is prescribed for attendance for all types of workman. Since the employers have not come forward with the best evidence and for reasons best known to them, they had decided to keep this evidence with them, I have no option but to accept the version of the workman that he had been working continuously since his employment and that he had put in more than 240 days of service before his termination. I, therefore, hold that the workman had put in more than 240 days of service preceding his termination. Issue No. 2 is decided in favour of the workman.Addl. Issue No. 3
In view of the above finding in respect of additional issue No. 2, it is of academic interest to point out that there might be a dispute regarding regularisation. The workman has raised the dispute about his termination and it has been found that he has put in more than 240 days of continuous service preceding to his termination, as such, the termination of the service of the workman by the employers was both unjust and illegal. The dispute referred to this Tribunal is about termination and not about regularisation, as such, I shall confine myself to the dispute of termination.
In view of the above, Tribunal held that the employee was temporary and not permanent. Tribunal, however, held that since the employer has not filed the extract of Form-12, the extract of contents of attendance register filed by them can not be relied upon and thus, the plea of the workman that he had worked for more than 240 days since his employment has been accepted on the oral testimony and, accordingly, it has been held that the employer has illegally terminated the service of the workman and he is to be reinstated with continuity and back wages. Against the aforesaid award, employer filed the present writ petition. The workman has not filed any petition. Thus, now, it is not in dispute that the workman was temporary and not permanent in his employment. The question for consideration, now, therefore, is that whether the view taken by the Tribunal that the workman had continuously worked for more than 240 days since the date of his employment till the date of termination and, therefore, the termination is illegal, is correct and justified.
3. Heard Smt. Sunita Agrawal, learned Counsel for the petitioner and Sri Siddharth, learned Counsel for the respondent. Learned Counsel for the petitioner submitted that the case of the petitioner was that the respondent was never terminated. He was appointed on temporary basis and could not report after 01.02.1995. She submitted that in fact the workman-respondent was not willing to work in case of exigency and the application was wrongly filed before the concerned office on the ground that his services have been terminated. The employer in application dated 15.03.1995 had categorically submitted that the management was willing to engage the concerned workman as it has been doing in the past depending upon the requirement and exigency. The said application dated 15.05.1995 filed on behalf of the employer in CP case No. 40 of 1995 has been filed as annexure RA-1 to the rejoinder affidavit dated 17.04.1999 of Sri P.K. Upadhyaya, deputy Manager, Legal. Smt. Agrawal, learned Counsel for the petitioner submitted as follows:
that during pendency of dispute before the Industrial Tribunal, the employer gave an offer to the workman and required him to appear for interview before the Interview Board against certain exiting vacancies in seasonal post. An application dated 28.01.1997 was filed before the Industrial Tribunal by the authorized representative of the management that as against those vacancies, the employees who were temporary/casual hands were being considered. However, the workman had objected to the said application and refused to appear before the Interview Board taking the plea that they were permanent employee and could not be termed as temporary one. The said application dated 28.01.1997 as mentioned above has been annexed as Annexure No. 7 to the writ petition and finds place at page No. 104 of the paper book. Para 22 of the writ petition is relevant for the purpose. It is clear that the workman was not interested in working in the factory but raised the Industrial Disputes with an intention to get his services regularized in the garb of termination. The job offered by the employer to the workman before the Conciliation Officer as also the Industrial Tribunal was categorical denied by the workman. As established above, at the relevant point of time, the employer was willing to engage the workman as it was doing in the past depending upon the requirement and exigency, but the workman refused to accept the offer given by the Management before the Conciliation Officer. Thus, it is clear that the nature of the dispute was not termination but regularization as was being sought by the workman.
the adverse inference drawn by the Industrial Tribunal while recording finding on issue No. 2 is wholly misplaced in as much as there was no occasion for drawing adverse inference on the ground that the attendance register produced by the employer was not in Form-12. After rejecting the attendance register produced by the employer, the Tribunal recorded that the employers have not come forward with the best evidence and, therefore, the version of the workman that he had put in more than 240 days of service before his termination is to be accepted. The finding of completion of 240 days of service preceding the termination has been recorded only on the aforesaid two grounds.
While recording the said finding the Tribunal had totally ignored that the initial burden to prove working of 240 days lies upon the workman and only if the workman discharged his burden, the onus shifts on the employer if the same is denied by it. In the instant case the workman failed to discharge the burden laid upon him and, therefore, there was no question of shifting the onus upon the employer. Mere statement of the workman as accepted by the Industrial Tribunal is not sufficient to discharge the burden laid upon him. Reference may be taken to the following cases:
a). Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. (Para 28 to 32).
b). Surendranagar District Panchayat v. Dahyabhai Amarsinh (Para 18).
c). Municipal Council, Sujanpur v. Surinder Kumar .
The Tribunal has erred in drawing an adverse inference against the employer, in as much as the Attendance Register, which in Form-12 was filed before the Tribunal and the original register was produced by the employer. The Tribunal has recorded the same in the award itself which finds placed at page 61 of the paper book. The attendance register filed by the employer alongwith list of documents, i.e. list 17-B(i) has been annexed as annexure No. 11 to the writ petition and the photo copy of the attendance register is at page No. 125 of the paper books. The photocopy, if compared to Form-12 as prescribed under the Factories Act, clearly establish that the extract of attendance register filed by the employer was strictly in Form-12. Thus, there was no occasion before the Industrial Tribunal to reject the same.
Admittedly Form-12 is the prescribed proforma for recording daily attendance of all types of workman and the best evidence showing the total period of working of the workman in possession of the employer was produced before the Tribunal that too in original.
The Tribunal has simply rejected the document filed by the employer without there being any plea by the workman that apart from the said document any other document existed which has not been intentionally produced by the Management. It was never alleged by the workman that the register produced by the employer was not the attendance register. Thus, there was no plea of suppression by the workman. That moreover, the Industrial Tribunal did not satisfy itself as to existence of any other document which could have been filed by the employer so as to ascertain the period of working of the workman. That there was no order of the Industrial Tribunal for production of any document by the employer. The workman was allowed to lead secondary evidence though he did not file the same. The workman did not challenge the veracity of the attendance register produced by the employer.
4. In view of the said facts, no adverse inference could have been drawn by the Industrial Tribunal and there was no occasion for rejecting the attendance register produced by the employer which was strictly in Form-12. The Industrial Tribunal had clearly erred in law in doing so. In this regard, reliance is placed on the following cases:
1. Municipal Corporation, Faridabad v. Siri Niwas .
2. R.M. Yellatti v. Asstt. Executive Engineer .
3. Surendra Nagar District Panchayat v. Dahyabhai Amar Singh .
4. Municipal Council, Sujanpur v. Surinder Kumar .
In the aforesaid judgments it has been held that adverse inference cannot be drawn in routine manner and the same varies in the fact and circumstances of each case. Mere non-production of any document without any plea of suppression is not sufficient to draw adverse inference. Moreover, in the instant case the best document in possession of the employer was produced by it in original. Thus the finding on issue No. 2 is totally perverse and against the evidence on record. In this regard reference may also be taken to supplementary affidavit dated 04.02.1999, filed by Sri P.K. Upadhyaya, Deputy Manager, Legal. (Para 3 and 4 and annexure No. SA-1 to the supplementary affidavit.).
She further submitted that the reliance placed by the learned Counsel for the respondent workman in the case of U.P. Drugs and Pharmaceuticals Co. Limited v. Ramanuj Yadav and Ors. and the decision of the Apex Court in Special Leave Petition (c) Nos. 16456-16460 of 2005 Sriram Industrial, Enterprises Limited v. Mahak Singh and Ors., is totally misplaced inasmuch as law laid down in Ramanuj Yadav (Supra) is not applicable in the fact and circumstances of the inst ant case. 240 days of working in previous years was not in issue before the Tribunal. Issue No. 2 framed by the Tribunal was only with regard to the completion of 240 days in preceding 12 months prior to the alleged termination. The scope of inquiry before the Industrial Tribunal was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 6-N of the Industrial Disputes Act.
Workman himself pleaded that he worked for 240 days in the calendar year preceding his termination. There was no plea that he worked for more than 240 days in every calendar year before termination. The workman in paragraph 11 of the written statement filed by him before the Industrial Tribunal had submitted that he had worked more than 240 days preceding the date of termination of his service. Accordingly, the documents regarding preceding year was filed by the employer before the Tribunal in original as also alongwith list of documents. In view of the said position, the law laid down in Ramanuj Yadav (Supra) cannot be applied in the present case. The written statement filed by the workman has been annexed as Annexure No. 3 to the writ petition, (relevant para is at page 73 of the paper books).
Moreover, the documents filed by the workman before the Industrial Tribunal alongwith List 12-B(ii) do not suggest that he had worked for 240 days in any of the previous years also since the date of his first engagement. (Photocopy of the List 12-B (ii) filed by the workman is annexure No. 12 to the writ petition).
That even assuming without admitting that the workman had worked for more than 240 days and there is any violation of Section 6-N of U.P. Industrial Disputes Act by the employer, reinstatement cannot be granted as a matter of course. Apex Court in a catena of decisions has directed the employer to pay a lump sum amount by way of compensation in place of reinstatement with back wages. It has been held that the completion of 240 days of continuous service in a year does not entitle an employee for regularization of his service and/or permanent status. The concept of 240 days in a year was introduced in the Industrial law for a definite purpose. The concept was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25-F of the Industrial Disputes Act, 1947 before he is retrenched from service and not any other purpose. In the event of violation of the said provision, termination of services of the employer may be found to be illegal, but only on that account, his service cannot be directed to be regularized.
In this regard, she relied upon the following cases:
1. Gangadhar Pillai v. SIEMENS Ltd. .
2. Haryana State Electronics Development Corporation Ltd. v. Mamni .
3. Nagar Mahapalika (Now Municipal Corporation) v. State of U.P. and Ors. .
4. Madhyamik Shiksha Parishad U.P. v. Anil Kumar Mishra and Ors. .
5. Accounts Officer (A & I), APSRTS and Ors. v. K.V. Ramana and Ors. .
In reply to the aforesaid submissions, learned Counsel for the respondent submitted as follows:
Continuous working of 240 days immediately preceding the date of termination of service of the workman is insignificant where the workman had put in many years of service. (2003 (99) F.L.R. 331. The workman discharged the burden of proof of continuous working for 240 days by brining on record the evidence in his possession and by stating on oath before the Industrial Tribunal that he has put in more than 240 days of service in each of the years since his appointment. The employer could not rebut the evidences, both oral and documentary, lead by the workman by filing the evidences in their possession which the workman requested to be produced before the Tribunal but the evidences were deliberately withheld by the employer hence the Court drew adverse inference against the employer in presuming that the workman had completed 240 days of continuous service. It was not a case of workman not adducing any evidence and making just a ball statement of fact that they had worked for more than 240 days. Rather the workman discharged the initial burden of proof and since the employer's witness admitted that the employer used to pay salary in cash hence the onus of proving the wages shifted on the employers to prove that the workman did not report for duty on his own and his services were never dispensed with by the employer.
The burden of proving that the workman abandoned his job is on the employer. If it is proved that the employer did not terminate the services of the workman but prevented them from working it is case of retrenchment where the employer/employee relationship is deemed to subsist since the contract of service stands intact.
5. In support of his contention, he relied upon the decision of the Apex Court in the case of Nicks (India) Tools v. Ram Surat and Anr. . He referred the following cases; in the case of Municipal Council, Samrala v. Sukhvinder Kaur , Nagar Mahapalika (Now Municipal Corporation) v. State of U.P. and Ors. , Haryana State Electronics Development Corporation Ltd. v. Mamni , the workman is not entitled to be reinstated in service rather he is entitled to be suitably compensated by payment of the amount deposited before the Tribunal as per interim order of this Court and non-recovery of amount paid under Section 17-B of the Act. Apex Court in the case of Executive Committee of U.P. State Warehousing Corporation Lucknow v. Chandra Kiran Tyagi held vide para 23 that there are three exceptions to the general rule that the contract of personal service are not enforceable through courts of law in the case of:
1. a public servant, who has been dismissed from service in contravention of Article 311 of the Constitution of India;
2. reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals and;
3. a statutory body when it has acted in breach of a mandatory obligation, imposed by a statute.
The compliance of the mandatory provision of Section 6-N of the State Act or Section 25-F of Central Act is mandatory and cannot be dispensed with by taking the plea of employee/workman being of temporary/Ad-hoc/casual category.
Therefore, the logic that the decision in the case of Uma Devi (Supra) is applicable to industrial dispute is baseless and is irresponsible legal statement.
The definition of continuous service is different in Central and State Act U.P. Drugs & Pharmaceuticals Co. Ltd. v. Ramanuj Yadav (Supra) and in the case of Mahak Singh v. P.O. Industrial Tribunal (V) U.P. Meerut (Supra).
Having heard learned Counsel for the parties and perused the impugned order of the Tribunal and other documents. It is useful to refer Section 6-N of U.P. Industrial Disputes Act and Section 25-B of Industrial Disputes Act.:
6-N. Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice:
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the State Government.
25-B. Definition of one year continuous service.-
For the purposes of Section 25-C and 25-F a workman who, during a period of 12 calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry. Explanation. - In computing the number of days on which a workman has actually worked in any industry, the days on which:
(a) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid-off being taken into account for the purposes of this clause.
(b) he has been on leave with full wages, earned in the previous year, and
(c) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave shall not exceed twelve weeks.
Shall be included.
6. Now, let us consider the law on the subject propounded by the Apex Court. In the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. , the Constitution Bench of the Apex Court held as follows.
Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right.
Employees were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves; they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equal with the other employees employed on daily wages, cannot be extended to a claim for equally treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.
It is now well settled that merely because a person had worked for more than 240 days, he does not derive any legal right to be regularised in the service. Vide M.P. Housing Board v. Manoj Shrivastava Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra Executive Engineer, ZP Engg. Divn. v. Digambara Rao Dhampur Sugar Mills Ltd. v. Bhola Singh Manager, Reserve Bank of India v. S. Mani State of U.P. v. Neeraj Awasthi. In the case of State of U.P. v. Arjun Lal reported in 2006 AIR SCW 1128, Apex Court held that onus to prove that the workman has completed 240 days, lies upon the workman.
7. The burden lies upon the workman to prove that he had worked "for more than 240 days and only if the workman discharged his burden, the onus shifts on the employer if the same denied by it. See Manager, Reserve Bank of India v. S. Mani Municipal Council, Sujanpur v. Surinder Kumar (Supra) (Para 12,13 and 14). In the case of Madhya Pradesh Administration v. Tribhuban reported in 2007 AIR SCW, 2357, Apex Court held that on the retrenchment of the temporary employee, the employee is entitled for the compensation and not for the back wages. In the case of Range Forest Officer v. S.T. Hadimani , Apex Court held as follows:
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.
In the case of R.M. Yellatti v. Asstt. Executive Engineer , Apex Court held that mere non production of required documents would not make the employer liable for adverse inference as it would depends upon the facts of each case. In the case of Municipal Corporation, Faridabad v. Siri Niwas (Supra), the workman service was terminated, the matter was referred to the Labour Court. The case of the workman was that he had completed working for 240 days in a calendar year and, therefore, the order of retrenchment was illegal as the condition of Section 25-F of Industrial Disputes Act, 1947 was not complied with. The contention of the employer was that the workman had worked only for 136 days during the preceding twelve months on daily wages and had no lien over the said job. In that background, Apex Court held that the burden of proof was on the workman to show that he had worked for 240 days in the preceding 12 months before his retrenchment. The same view was expressed by the Apex Court in the case of Surendranagar District Panchayat v. Dahyabhai Amarsinh (Supra), Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan , and M.P. Electricity Board v. Hariram . In the aforesaid cases it has been held by the Apex Court held that burden of proof lies on the workman that he had worked continuously for 240 days in the preceding one year prior to his retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the fact that he had been employed for the said period by the employer. In the case of Range Forest Officer v. S.T. Hadimani (Supra) Apex Court further held that filing of an affidavit is only the statement made by the workman in his own favour which could not be regarded as sufficient evidence for any Court or Tribunal to arrive at a conclusion that the workman had, in fact, worked for 240 days in a year. The same principle has been recorded by the Apex Court in the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. (Supra). In the case of R.M. Yellatti v. Asstt. Executive Engineer (Supra), Apex Court held as follows:
Analysing 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 of 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 head 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 earners, 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 (the claimant) can only call upon the employer to produce before the court the nominal muster roll of 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 the 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 laid 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 laid 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 the facts of each case.
Apex Court in the case of Sriram Industrial Enterprises Limited v. Mahak Singh and Ors. (Supra) held as follows:
As pointed out by Mr. Viswanathan, the exclusion of the word "preceding" from Section 2(g) of the U.P. Act indicates that a workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service. In fact, such a interpretation has already been given by this Court in U.P. Drugs & Pharmaceuticals Ct. Ltd. The case made out by the respondents before the Tribunal was also on the same lines in the adjudication cases filed before the Labour Court, where the respondents had made out a case that they had never worked as temporary hands but had worked continuously from 26-2-1991 to 31-1-1995 without break.
In the light of the aforesaid case made out by the respondents, the Tribunal was persuaded on behalf of the petitioner herein to decide the case of the workmen on the basis of the materials produced by the petitioner for the year preceding the date of termination of their services from which it was shown that the workmen had not completed 240 days of continuous service in the said year.
The said approach, in our view, was erroneous in view of the decision of this Court in U.P Drugs & Pharmaceuticals Co. Ltd. The petitioner had wrongly described the documents relating to attendance for the year 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an adverse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workman had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise.
In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6-N read with Section 2(g) of the U.P. Act which is applicable to these petitions.
Having correctly interpreted the provisions of Section 6-N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the attendance registers and the muster rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer case were watered down by the subsequent decision in R.M. Yellatti case and in our view the workmen had discharged their initial onus by production of the documents in their possession.
8. In the case of Madhyamik Shiksha Parshad U.P. v. Alil Kumar Mishra and Ors. (Supra), Apex court held as follows:
The assignment was an adhoc one which anticipatedly spent itself out. It is difficult to envisage for them the status of workmen on the analogy of the provisions of the Industrial Disputes Act, 1947, importing the incidents of completion of 240- days' work. The legal consequences that flow from work fro that duration under the Industrial Disputes Act, 1947, are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularization. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply the analogy, in an extended or enlarged form here.
In the case of M.P. Housing Board v. Manoj Shrivastava (Supra) this Court held as follows:
It is now well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularise din service. See Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra; Executive Engineer, ZP Engg. Divn. v. Digambara Rao, Dhampur Sugar Mills Ltd. v. Bhola Singh; Manager, Reserve Bank of India v. S.Mani and Neeraj Awasthi).
In view of the Gangadhar Pillai v. SIEMENS Ltd. (Supra), Apex Court held as follows:
It is not the law that on completion of 240 days of continuous service in a year, the employee concerned becomes entitled to for regularization of his services and/or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25-F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularised. Direction to reinstate the workman would mean that he gets back the same status.
9. Summary of the law laid down by the Apex Court in the aforesaid decisions are:
(i) The daily wager has no right of regularization; (ii) The burden lies upon the workman to prove that he had worked for more than 240 days and on the discharge of the initial burden, the onus shifts on the employer to prove that the workman had not worked for more than 240 days.
(iii) The mere affidavit and the statement are not sufficient to prove that the workman had worked for more than 240 days;
(iv) The continuous working for 240 days in a calendar year preceding the date of termination is applicable to Section 25-F of the Industrial Disputes Act but in view of the exclusion of the word 'preceding' in Section 6-N of the U.P. Industrial Disputes Act, the working of 240 days during the entire period of service has to be considered and not during the calendar year preceding the date of termination as held by the Apex Court in the case of Sriram Industrial Enterprises Limited v. Mahak Singh and Ors. (Supra).
(v) Under Section 25-F of the Industrial Disputes Act and under Section 6-N of U.P. Industrial Disputes Act, in case if the workman had worked for more than 240 days, on the retrenchment being made, he is entitled for compensation and not the back wages.
10. In the present case, Tribunal has framed the issue No. 2, which was only with regard to the completion of 240 days in the preceding 12 months prior to the date of termination. The scope of enquiry before the Tribunal was confined to only 12 months from the date of termination. The workman himself pleaded that he worked for 240 days in the calendar year preceding his termination. There was no plea that he worked for more than 240 days during the entire period of service. It appears that the workman has filed the extract of the attendance register for the period February, 1994 to January, 1995, document nos.3 to 11, Photostat copies of the attendance card, document nos.12 to 29, photocopies of the wage slip for various months of the year 1992, 1993, 1994 and 1995. Document nos.25 to 29 are the Photostat copies of attendance slip and document nos.30 to 21 are the Photostat copies of the provident fund slip, document No. 2 is the photocopy of the cash pay in slip. The employer has produced attendance record of the workman in the form of Paper No. 3 and also produced the original register, which was marked as Ex.E-1. The view of the Tribunal that the attendance register had not been produced, does not appears to be correct. Perusal of the order of the Tribunal reveals that the attendance register was produced. However, it is seen that from both the sides, the evidences have been adduced in support of their claim. Though the Tribunal held that the respondent had worked for more than 240 days but no specific dates, in which he had worked are mentioned. To decide the aforesaid factual aspects, matter has to be remanded back to the Tribunal but in view of the decision, which this Court is proposing to take, it is not necessary to remand back the matter to the Tribunal.
11. Admittedly, the respondent was temporary employee; he has no right of regularisation. In the circumstances, in the absence of any work, it is always open to the employer to remove the workman/employee from services and not to take work. The services of the employee is always at the will of the employer and he cannot claim the continuity of the service permanently. Record reveals that the employer in the application dated 15.03.1995 had categorically submitted that the management was willing to engage the concerned workman as it has been doing in the past depending upon the requirement and exigencies. The aforesaid application dated 15.03.1995 filed on behalf of the employer in CP case No. 140 of 1995 has been filed as annexure RA-1 to the rejoinder affidavit dated 17.04.1999 of Sri P.K. Upadhyaya, Deputy Manager, Legal. Further an application dated 28.01.1997 was filed before Industrial Tribunal by authorised representative of the management that as against those vacancies, the employees who were temporary/casual were being considered. However, the workman had objected to the said application and refused to appear before the Interview Board taking the plea that they were permanent employee and could not be termed as temporary one. The said application dated 28.01.1997 as mentioned above is annexure No. 2 to the writ petition. From the above, it appears that the workman was not interested in working in the factory and raised the industrial dispute with the intention to get his service regularised in the garb of the termination. The job offered by the employer to the workman before the Conciliation Officer as well as before the Industrial Tribunal was categorically denied by the workman. Admittedly, the respondent is not working since February, 1995. This Court while entertaining the petition has passed an interim order dated 05.02.1999 and stayed the enforcement of impugned award. However, while staying the enforcement of the impugned award, the back wages to the extent of 50% payable under the award has been deposited with the Industrial Tribunal; a sum equal to wages payable to the workman from the date of the award till the last preceding month has been paid and the wages at the rate admissible under Section 17-B of the Industrial Disputes Act, 1947 has also been paid to the workman month by month basis.
12. Learned Counsel for the petitioner submitted that a sum of Rs. 59,723/- has been deposited, being 50% of the back wages and a sum of Rs. 2,55,414/- has been paid from 16.01.1999 to June, 2007 @ Rs. 2,516/- per month. Apex Court in the case of Gangadhar Pillai v. SIEMENS Ltd. (Supra) held that even if the workman worked for more than 240 days, he is not entitled to be reinstated and entitled for compensation. In view of the above facts and circumstances, the reinstatement of the respondent-employee is not justified. The aforesaid view is also supported by the decisions of the Apex Court in the case of Haryana State Electronics Development Corporation Ltd. v. Mamni (Supra), in the case of Nagar Mahapalika (Now Municipal Corporation v. State of U.P. and Ors. (Supra) and in the case of Municipal Council, Samrala v. Sukhwinder Kaur (Supra). On the question being put by the Court, learned Counsel for the petitioner submitted that in the event writ petition being allowed and the impugned award of the Industrial Tribunal is being set aside, the amount paid to the workman will not be recovered.
13. In view of the aforesaid facts and circumstances, impugned award of the Tribunal directing the reinstatement of the respondent is set aside. The amount deposited towards back wages with the Tribunal may also be paid to the workman. The amount paid to the workman may be treated as compensation or in any case may not be recovered. In the result, writ petition is allowed. Impugned award of the Tribunal directing the reinstatement of the workman is set aside. However, the amount paid in pursuance of the order passed by this Court dated 05.02.1999 to the workman may not be recovered. The amount deposited towards back wages with the Tribunal may also be paid to the workman.