Gujarat High Court
Dy vs Hitendra on 8 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/2957/2010 2/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2957 of 2010
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DY.
EXECUTIVE ENGINEER - Petitioner(s)
Versus
HITENDRA
JESTARAM JOSHI - Respondent(s)
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Appearance :
MR
SHASHIKANT S GADE for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/03/2010
ORAL
ORDER
1. Heard learned advocate Mr. Shashikant Gade on behalf of petitioner. Petitioner - Dy. Executive Engineer, Public Health Works Sub-Division, Gujarat Water Supply & Sewerage Board, has filed present Special Civil Application challenging award passed by Labour Court in Reference No. 11 of 2006, Kutch at Bhuj, dated 16th November, 2009. Labour Court has directed to petitioner to reinstate employee Shri Hitendra Jestaram Joshi from date of his retrenchment on his original post with continuity of service with 25% back wages of interim period.
2. Learned advocate Mr. Gade submitted that Labour Court has committed gross error in granting relief in favour of respondent workman. He submitted that question of reinstatement created difficulty because petitioner having no set up available for the post on which respondent workman was working. He relied upon Page 40 paragraph 17 and submitted that respondent workman was not permanent workman and he was not retrenched in year 2006 and he himself abandoned the job and no new workmen were recruited after 1994. Respondent workman was appointed illegally. According to witness of petitioner, respondent workman was working w.e.f. 1st May, 1998 and retrenched on 22nd February, 2006. Therefore, learned advocate Mr. Gade submitted that Labour Court has committed gross error in awarding reinstatement with 25% back wages in favour of workman. Respondent workman was Rojamdar and not entitled to any amount of back wages as per decision relied by him reported in AIR 1996 SC Page 1565. He also submitted that respondent has not remained in continuous service but he was in service for intermittent. The Labour Court has not appreciated evidence Exh. 17 given by petitioner Deputy Executive Engineer Shri Rasik Mayaram. No other junior is engaged under Kutch Division. Vide Exh.11 Board has filed written statement, which is also placed on record but same has not been properly considered by Labour Court. He relied upon one decision of Apex Court reported in AIR 1997 SC Page 1997 and submitted that law of retrenchment cannot be made applicable to daily-wage employee and daily-wager is not covered under Section 2(S) of the I.D.Act. Hand receipts at Exh. 6/3 show engagement of respondent Rojamdar for the period from 30th March, 2001 to 2nd January, 2006. Therefore, according to him, learned Labour Court has failed to consider this and directed reinstatement with continuity of service with 25% back wages. He relied upon decisions reported in 1997(1) GLH 568, 2009(2) GLH 165 and submitted that it is a case of clear prima facie error committed by Labour Court, which requires interference by this Court under Article 227 of Constitution of India.
3. I have considered submissions made by learned advocate Mr.Shashikant Gade appearing on behalf of petitioner. The reasoning given by Labour Court after considering documents which are on record and oral evidence of both parties as discussed in paragraph 18, 19 and 20, which are quoted as under.
18. Now on going through the evidence on record particularly the cross-examination of this witness, who is the responsible officer of the opponent-institution, it has come out that the employee was working as rojamdar-operator with effect from 01.05.1998 and he continued up to 22.02.2006. The employee has also deposed in his evidence, on oath, that he worked with the opponent with effect from 01.05.1998 to 22.02.2006. On going through the said deposition of the parties it is obviously proved that the present employee was serving with the opponent with effect from 01.05.1998 up to 22.02.2006. The opponent has not rebutted this say of the employee, on oath, by producing the original muster roll of the employee. The employee has produced the extract of the muster got by him from the employee under an application. The say of the opponent is that as they have supplied the copies of the required documents to the employee it was not necessary for them to produce the same documents with a view to avoid duplication on record. It may be mentioned here that the rojamdar employees are required to be paid on daily basis and their working days are required to be marked for preparing the contingency bill which must be in the record of the opponent but the opponent has not produced the same before this Court for inspection with mala fide intention with a view to defeat the employee. It was the duty of the opponent-institution to produce all the original service record of the employee before this Court, failing which adverse inference is required to be drawn against them. The employee has produced the extract of muster roll at Exh.19 with effect from 01.05.1998 to 12.2000 which was got by him from the opponent on an application made by him to the opponent. This muster roll is incomplete and it is not for the total period of service of employee, which shows that the opponent has not come before this Court with clean hands. It was the duty of the opponent to supply the whole attendance register right from his appointment upto his retrenchment. Non-production of the said register before this Court as well non supply of the said register to the employee, even on an application, shows the intention of the employer. Therefore, when in the register produced before the Court it has become clear that the attendance of the employee was 100% then there is no reason for this Court not to believe that the attendance of the employee would have been 100% for the remaining period of 01.2001 to 22.02.2006. Therefore, the adverse inference can be drawn against the employer that had they produced the original muster roll before this Court, then certainly it would have gone against them. The opponent is a Government institution and the service record of a Government institution is always maintained, therefore, the say of the witness of the opponent that as the employee was temporary rojamdar his service record is not available with the Institution cannot be accepted. Therefore, this Court holds that the opponent-institution is having service record of the employee but intentionally they have not produced the same before this Court, which attitude of the opponent is not desirable. Therefore, this Court holds that had the opponent produced all the service record of the employee before this Court, it would have gone against the opponent. Therefore, this Court holds that the employee was workman of the opponent and that has worked continuously for more than 240 days in each and every calendar year with the opponent before his retrenchment. Therefore, in view of the above discussion, it can be said that the opponent has not followed the provisions of Section 25-F of I.D.Act.
19. If any decision is required then it of our own Hon'ble High Court reported in 2006 GLR Page 695 in the case of State of Gujarat v. Karsanbhai Jesang (Coram: Hon'ble Mr. Justice H.K.Rathod, J). In that case, the Hon'ble High Court has held that the onus to prove that workman had completed 240 days continuous service, initially, is on the workman but when the workman establishes that fact by oral evidence, the burden shifts on the employer. In that case the employer had not given any document to workman regarding his service. There was oral evidence of the workman that he had put in continuous service for 240 days and was in the employment for five years. In that case the employer Forest Department had service record of the employee such as muster roll, wage slips, seniority list etc. but did not rebut the case of workman by producing the same. Claim of the workman was not contested by the employer because the employer has chosen to remain absent throughout the proceedings. Hon'ble Gujarat High Court rightly concluded that workman had completed continuous service of 240 days in the preceding twelve months. So employee applicant has examined himself at Exh.9, on oath. From his evidence he has established that he has completed 240 days in all the calendar years of his service right up to his retrenchment and this fact is also admitted by the witness of the opponent in their cross-examination. The employee has produced at Mark 6/19 hand receipts 50 in number which shows that the employee was working with the opponent. These receipts are for the period from 31.03.2001 upto 02.01.2006 and the other hand receipts are not coming on record. Therefore it appears that the employer has not supplied all the hand receipts. Anyhow, it is sufficiently proved that the employee was working with the opponent employer with effect from 01.05.1998 upto his retrenchment on 22.02.2006 as it is admitted by the witness of the opponent, during cross-examination, examined by it at Exh.17. Thus, it is sufficiently proved from the evidence of the opponent that the employee was working with the opponent as Rojamdar continuously. It is immaterial whether he was skilled or unskilled. One thing is clear that the employee was Rojamdar with the opponent.
20. Reference may be made to the decision of Hon'ble Gujarat High Court reported in 2000 LAB I.C.1921 in the case of Moti Ceremic Industries v. Jivuben Rupabhai and others (Coram: Hon'ble Mr. Justice H.K.Rathod, J.) in which it is held that the combined reading of Ss.25-B and 25-F would make it clear that if a workman establishes that he has put in continuous service of 10 years, he would forthwith be entitled to claim retrenchment compensation for every completed year of service and it is immaterial whether he worked for particular number of days in a particular year. In the present case the employee has put in continuous service for more than 07 years, therefore, as held in the above referred decision, it is immaterial whether he worked for particular period say for 240 days. When such is the situation, this Court holds that the employee was workman of the opponent before his retrenchment from service and that he has completed more than 240 days service in each and every year upto his retrenchment from service by the opponent. The learned advocate for the employer, Mr. H.J.Joshi has vehemently argued during his written arguments that as per Order-6 of C.P.C. The facts without pleading in statement of claim cannot be considered in evidence if they are mentioned in the affidavit. This is a case under Industrial Disputes Act. This is not a case under any Civil Law in which the provisions of Evidence Act are to be followed strictly. As it is settled by various decisions of the Hon'ble Supreme Court as well as Hon'ble High Courts, in industrial disputes the provisions of Evidence Act are not to be followed strictly but they should be followed lightly. Therefore, the argument of the learned advocate Mr. H.J.Joshi, even though having great force but without any substance, cannot be taken into consideration. In view of the above discussion, the Point No.1 is answered in the affirmative.
4. Thereafter, Labour Court has examined matter for back wages of interim period after considering submissions made by both learned advocates. The Labour Court has considered various decisions as to whether workman is entitled for amount of back wages of interim period or not. Relevant para 34 reads as under:
34. So far as back wages are concerned, it is the duty of the employer to prove that after retrenchment of the employee he was serving elsewhere. On going through the deposition of employer at Exh.17 he has not shown anything about gainfully employment in his examination-in-chief, on oath. In the cross-examination also the learned advocate Shri H.J.Joshi was not in a position to extract anything that the employee was gainfully employed elsewhere. In view of the above circumstances this Court thinks it just and proper in the interest of justice to award 25% back wages to the employee with continuity of service and with reinstatement on his original post.
Therefore, the point No.1 is answered in the affirmative.
5. In para 35, Labour Court has come to conclusion that service of workman has been illegally terminated by petitioner, therefore he is entitled to relief of reinstatement with 25% back wages. Labour Court has considered Section 25-F, 25-G and 25-H of I.D.Act, 1947 and also considered Rule 81 of Industrial Dispute (Gujarat) Rules. 7 days notice in advance was not displayed on Notice Board. Therefore, considering the various decision on this issue Labour Court has come to conclusion that termination is found to be retrenchment within meaning of Section 2 (oo) of I.D. Act, 1947 and at the time of terminating service, Section 25-F is not complied with though workman has proved 240 days continuous service before Labour Court against which no rebuttal evidence produced by petitioner before Labour Court. Service certificate has been admitted by witness of petitioner before Labour Court Exh.6/3. Therefore, recently, Apex Court has considered decision of this Court given in SCA 29355 of 2007 decided on 30th November, 2007, which has been confirmed by Apex Court in case of Director, Fisheries Terminal Department v. Bhikhubhai Meghajibhai Chavda, reported in (2010) 1 SCC 47. The Apex Court, after considering submissions made by both learned advocates, observed at para 13 to 21, which are quoted as under:
13.
The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the labour court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as 8 conditions precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.
14. Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B 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 service.
15. The respondent claims that 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.
16. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer has observed: (SCC p. 106, para 17) "17.
....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."
17. 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.
18. 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.
19. 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, inspite 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 in the case of Municipal Corporation, Faridabad Vs. Siri Niwas, where it is observed: (SCC p. 198, para 15) "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 this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
20. It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The section reads:-
"25G.
Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
21. The labour court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference.
6. This Court also had an occasion to consider same aspect; in case where workman stated on oath that he remained in service and completed 240 days continuous service, admittedly no document was supplied to workman to prove his case of completion of 240 days continuous service and a moment when legal evidence led by workman against employer, burden shiftd from workman to employer to disprove the claim of workman in case of Principal, S.V.Doshi Girls High School & Anr. v. Lilaben Somabhai Gadasa reported in 2008(1) G.L.H. 286, wherein paragraphs 9 & 10 read thus:
9. Identical question was examined recently by this Court in SCA No.17165 of 2006 dated 24.8.2006, relying upon the decision in the case of R.M.Yellattii, as referred above and in this case, no documentary evidence has been produced by the employer to disprove the claim of the workman and the award of the Labour Court has been confirmed by this Court. Against which SLP was preferred by the Surendranagar District Panchayat being SLP No.1918 of 2007, which has been dismissed by the Supreme Court on 3.1.2008. Therefore, considering the aforesaid law as relied by learned advocate Mr.Pandya and also considering the recent decision of the Apex Court, according to my opinion, the Labour Court has rightly considered the oral evidence of the workman and also considering the certificates produced by the workman. In labour proceedings, strictly Evidence Act is not made applicable. Certain provisions are made applicable under Section 11 of the I.D.Act,1947. If any document is produced by the party, if it is disputed by the other side then, other side must have to come out with the case that such document is not correct, bogus or not genuine. The certificate which has been produced on record with the petition page-27 which is not disputed by the petitioner, even considering these 10 vouchers, working days considering each month more than 15 to 18 days. So the stand taken by the employer that as and when work required, she was called by the employer which is apparently not found to be correct. It is also necessary to note on important aspect that two witnesses were examined by the petitioner before the Labour Court. None of the witnesses has made clear before the Labour Court that she was not remained in service from 1997 to 2005. Two persons were examined and both have not any personal information or knowledge in respect to the appointment, working and termination of the concerned workman. So their evidence is also not reliable and rightly not relied by the Labour Court and accordingly, the Labour Court has rightly believed the case of the workman and considering evidence of the workman which has not been disproved by the petitioner, granted the relief.
9.1 The Division Bench of this Court has considered the question of burden upon whom and how it to be discharged in case of Superintendent Engineer v. R. Chhanabhai Nathabhai in LPA No.202 of 2005 decided on 4.3.2005 after taking into consideration the decision of the Apex Court in the case of M.P. Electricity Board v. Hariram reported in (2004) 8 SCC 246. Relevant observations made in Para.9, 10 and 11 which are quoted as under :
"9. In the matter of M.P. Electricity Board (supra), the Supreme Court has observed that the basic burden would be upon the workman. In the said matter, certain Muster Rolls were produced before the Court and some were kept back. On the basis of the Muster Rolls which were produced before the Court, the Supreme Court observed that the workman miserably failed to prove the fact that the work was for 240 days. The Supreme Court also observed that it was erroneous on the part of the Industrial Court and the High Court to draw an adverse inference on non-production of the Muster Rolls for some time.
10. The question of burden of proof would lose its importance when the question of onus of proof is taken up for consideration. In a given case, the basic burden may be upon a particular party and if the party does all what is required under the law, then the basic burden would stand discharged and the burden would be shifted upon the other side to disprove what has been said by the first party.
It cannot be disputed nor can be argued that the official records are always available with the Department. A workman, if appears in the Court, enters the dock and makes a statement on oath that he had worked for 240 days in a year and the statement is not denied by the other side, or not controverted either, then the said statement can be taken to be correct. In the present matter, the workmen did work for 240 days and if that be so, the burden shifted and the burden was on the other side to disprove the allegations made by the workman. The best of the evidence would be the records which are regularly maintained by the Department.
The Department cannot be allowed to say that even if the basic burden was discharged, they were not required to produce the records which they possessed. If the best evidence is kept back or is not produced in the Court, then the Court would be justified in drawing an adverse inference against the party which could produce the best evidence in the Court.
11. In the matter of M.P.Electricity Board (Supra), the Supreme Court was considering the case where the first Court which could draw an adverse inference did not draw any inference and it was in the appeal where the Industrial Court, for the first time, had drawn adverse inference and the said finding was approved by the High Court. In the present matter, when the Labour Court, after giving its anxious consideration to the facts of the case and the evidence available on record, has recorded a finding and the said finding is approved by the learned Single Judge, it would not be for the Letters Patent Court to interfere with the discretion exercised by the Labour Court and the finding which was approved by the learned Single Judge. We must observe that the Labour Court was absolutely justified in drawing an adverse inference against the interest of the appellant. We find no reason to interfere in the matter and the appeals are dismissed. Notice is discharged. There shall be no order as to costs."
10. The contention which has been raised by learned advocate Mr.Pandya that she was not regularly appointed; four persons are working against the permanent post and no vacancy is available. The Labour Court has granted reinstatement the respondent workman and there is no direction of granting permanency or regular benefit in favour of respondent workman. The reinstatement suggests to restore the original position. for that, petitioner must have to restore the original position. The Labour Court has rightly granted the back wages considering the object of the trust and also gainful employment not proved by the petitioner and having some presumption against the respondent workman that she may not remain without work during the entire period and therefore, the Labour Court has rightly granted 20% back wages of interim period. 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.
7. In light of aforesaid observations made by Apex Court as well as this Court and in light of the facts before Labour Court where record has been placed by workman Exh.6/3 and as no rebuttal documentary evidence produced by petitioner except one officer was examined, contention raised by learned advocate Mr. Gade cannot be accepted. The burden which has been shifted from workman to employer has not been proved by employer. Therefore, Labour Court has not committed any error, which requires interference while exercising powers under Article 227 of Constitution of India.
8. Hence, there is no substance in Special Civil Application, accordingly present petition is dismissed.
[H. K. RATHOD, J.] jani Top