Rajasthan High Court - Jaipur
Raj State Bridge Const Corp Ltd vs Mahendra Singh on 28 July, 2021
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 3887/2016
Rajasthan State Bridge Construction Corporation Ltd. (now
named as Rajasthan State Road Development Construction
Corporation Ltd. For short RSRDC Ltd.), Jhalana Doongri, Jaipur.
----Petitioner
Versus
Mahendra Singh S/o Shri Bheem Singh, Driver Vehicle, House
No.1C, Nirman Nagar, Janpath Road, Jaipur Through Shri Kunal
Rawat and Haroon Khan, Jaipur.
----Respondent
Connected With S.B. Civil Writ Petition No. 4017/2016 Mahendra Singh S/o Shri Bheem Singh, aged about 47 years Driver Vehicle, House No.1C, Nirman Nagar, Janpath Road, Jaipur Through Shri Kunal Rawat and Haroon Khan, Jaipur.
----Petitioner Versus Rajasthan State Bridge Construction Corporation Ltd., Jhalana Doongri, Jaipur. (A public Section undertaking of the State of Raj.)
----Respondent For Petitioner(s) : Mr. V.P. Mathur Mr. Kunal Rawat Raja Ram For Respondent(s) : Mr. V.P. Mathur HON'BLE MR. JUSTICE INDERJEET SINGH Order 28/07/2021
1. Since in both these writ petitions the same award passed by the Labour Court dated 16.11.2015 is under challenge, hence these writ petitions have been heard together and are being decided by the present order.
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2. The Labour Court in the present matter vide Award dated 16.11.2015 has held the alleged termination as null and void, however, directed for payment of compensation to the tune of Rs.5 Lakh in lieu of reinstatement.
3. S.B. Civil Writ Petition No.3887/2016 has been filed by Rajasthan State Bridge Construction Corporation Ltd. (hereinafter to be referred as "employer") with the prayer to quash and set aside the award dated 16.11.2015 passed by the Labour Court whereas S.B. Civil Writ Petition No.4017/2016 has been filed by Mahendra Singh (hereinafter to be referred as workman) challenging the award dated 16.11.2015 passed by the Labour Court with the prayer to modify the award and direct the respondents for reinstatement instead of compensation.
4. Brief facts as emerge from the record are that statement of claim was filed by the workman before the Labour Court with the averments that he was engaged/appointed by the employer on the post of Driver in January, 1991 and he worked upto 19.01.2001 and he was orally removed from service by the employer on 20.01.2001. It was also averred that prior to oral termination of the workman neither any notice/charge-sheet was served to him nor any inquiry was held and therefore, there is violation of principles of natural justice. It was also stated that the employer has violated the provisions of Section 25F of the Industrial Disputes Act, 1947 while taking action of removal of the workman from service. It was also stated that the workman has a right of being regularized in service as the other persons have been regularized and he has been ousted from service. It was also stated that he had continuously worked for more than 240 days in (Downloaded on 04/08/2021 at 09:08:14 PM) (3 of 8) [CW-3887/2016] a calendar year and prayed that while declaring his oral termination as null and void, the employer be directed to reinstate him in service with all consequential benefits from the date of termination i.e. 20.01.2001.
5. Reply was filed on behalf of the employer and while denying the averments made in the statement of claim, it was stated that the workman was never engaged/appointed by the employer in service, as such there is no question of regularization of his service. It was also stated that all the appointments are made by the employer after following the due procedure under the law and no appointment was offered by the employer to the workman. It was further stated that the workman was neither engaged by the employer nor he had worked for continuous 240 days in a calendar year and all the averments made by the workman were denied by the employer in toto.
6. The workman in support of his claim produced affidavit of himself and submitted documents Ex.W-1 to Ex.W-7 and from the side of the employer affidavits of AC Mathur, Devendra Kumar Ajwani were produced and both the parties also cross-examined the affidavits and witness.
7. The Labour Court after considering the material and the evidence on record, vide award dated 16.11.2015 held the termination of the workman from 20.01.2001 to be null and void, however in lieu of reinstatement directed for payment of compensation to the tune of Rs.5 Lakh. Aggrieved by the award dated 16.11.2015, the workman as well as the employer both have filed the writ petitions of which reference has been made above.
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8. Counsel for the employer submitted that the workman has never been their employee and therefore the finding recorded by the Labour Court is perverse. Counsel further submits that the Labour Court has committed serious illegality in holding that the workman had completed continuous 240 days in a calendar year prior to his termination from service by the employer. Counsel further submits that even the compensation as awarded by the Labour Court is not legally justified and lastly prayed for quashing of the award dated 16.11.2015 passed by the Labour Court.
9. In support of his contentions, counsel for the employer relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Krishna Bhagya Jal Nigam Ltd. Vs. Mohd. Rafi, reported in (2006) 9 SCC 697, where in paras-8 & 9 it has been held as under :-
8. In Manager, Reserve Bank of India Vs. S. Mani 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. The Tribunal's view that the burden was on the employer was held to be erroneous. In Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh it was held as follows: (SCC pp. 484-85, para 13) "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 the onus is on the workman."
"The position was examined in detail in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh and the view expressed in Range Forest Officer, Siri Niwas, M.P. Electricity Board cases was reiterated."
9. In R.M. Yellatti v. Asstt. Executive Engineer the decisions referred to above were noted and it was held as follows: (SCC p. 116, para 17) "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 (Downloaded on 04/08/2021 at 09:08:14 PM) (5 of 8) [CW-3887/2016] 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 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 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 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 lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be 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 interefere 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.
The above position was again reiterated in ONGC Ltd. v. Shyamal Chandra Bhowmik and Chief Engineer, Ranjit Sagar Dam vs. Sham Lal.
10. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Haryana State F.C.C.W. Store Ltd. Vs. Ram Niwas and another, reported in (2002) 5 SCC 654, where in para No.15 it has been held as under :-
"In such a case the question of complying with the conditions precedent to retrenchment of a workman provided in Section 25-F of the Act will not arise. In the present case, the Labour Court relying on the oral and documentary (Downloaded on 04/08/2021 at 09:08:14 PM) (6 of 8) [CW-3887/2016] evidence cited on behalf of the management, particularly the order of the Managing Director sanctioning the engagement of the workmen concerned, held that the engagement/ appointment of the workmen concerned was for a specific purpose and for a particular period and since the purpose had expired, their disengagement was in terms of the contract of service, and therefore, not a "retrenchment"
within the meaning of Section 2(00) of the Act. The High Court has not recorded a finding that there was no contract of service between the management and the workmen concerned. In view of the evidence on record the High Court and indeed has not passed recorded any finding that there was no contract of service between the management and the workmen concerned. Since, there exists a contract of service with the terms and conditions as noted earlier the position in inescapable that the case of disengagement/ termination of the workmen concerned did not amount to retrenchment. In particular facts and circumstances of the case the Labour Court rightly came to the conclusion that the workmen were entitled to no relief in the case. The High Court was clearly in error in interfering with the award passed by the Labour Court. Accordingly, the appeals are allowed. The judgments of the High Court in CWPs Nos. 9471 and 9472 of 1999 dated 22.09.2000, allowing the writ petitions filed by the respondent workmen are set aside and the award of the Tribunal is restored. There will, however, be no order for costs."
11. Counsel appearing on behalf of the workman submitted that the workman has duly proved his case that he was appointed in the service of the employer and the learned Labour Court after considering the evidence submitted by the workman rightly came to the conclusion that he was appointed by the employer in serivce in January, 1991. Counsel further submits that the workman has established before the learned Labour Court that he has completed continuous 240 days in a calendar year prior to his termination, which has been found proved by the learned Labour Court and recorded finding of fact which is based on the cogent (Downloaded on 04/08/2021 at 09:08:14 PM) (7 of 8) [CW-3887/2016] evidence. Counsel further submits that once the learned Labour Court found the claim of the workman proved and held the termination of the workman as null and void, the learned Labour Court instead of compensation should have ordered for reinstatement of the workman in service instead of awarding compensation and prayed that while directing reinstatement of the workman in service award of the Labour Court be modified accordingly.
12. Heard counsel for the parties and perused the record.
13. The Hon'ble Supreme Court in the matter of Bharat Sanchar Nigam Limited Vs. Bhurumal, reported in (2014) 7 SCC 177 and in the matter of Telecom District Manager & Ors. Vs. Keshab Deb, reported in (2008) 8 SCC 402, has held that violation of Section 25F of the Industrial Disputes Act, 1947 does not automatically entail in reinstatement with back wages.
14. In another judgment the Hon'ble Supreme Court in the matter of Madhya Bharat Gramin Bank Vs. Panchamlal Yadav, Civil Appeal No.9792 of 2010 decided on 13.07.2021, has held as under:-
"Having considered the submissions made on behalf of the parties, we are of the view that the respondent is not entitled for reinstatement in view of the law settled by this Court. The judgments relied upon by Mr. Kapur are clear to the effect that violation of Section 25 F of the Industrial Disputes Act, 1947, would not automatically entail in the reinstatement with full back wages. The relief to be granted depends on the facts of individual cases.
In that facts and circumstances of this case, we are of the opinion that compensation of Rs.5. Lakhs is reasonable.
We direct the appellant-Bank to pay an amount of Rs.5 Lakhs to the respondent within a period of eight weeks from today. "(Downloaded on 04/08/2021 at 09:08:14 PM)
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15. It is settled law as laid down by the Hon'ble Supreme Court that it is for the workman to prove his case that he has completed 240 days in a calendar year prior to his termination by the employer. In the present case, the workman has pleaded his case before the learned Labour Court by leading evidence that he has completed 240 days in a calendar year prior to his termination and the Labour Court after considering the evidence on record found proved the claim of the workman and recorded finding of fact in favour of the workman of his completing 240 days in a calendar year prior to his termination. I find no illegality being committed by the Labour Court in passing of the award dated 16.11.2015.
16. So far as awarding of compensation of Rs.5 Lakh in lieu of reinstatement is concerned, considering the facts and circumstances of the present case and in view of the judgment passed by the Hon'ble Supreme Court in the matters (supra), as the reinstatement is not automatic, therefore I find no error in the approach of the Labour Court in awarding compensation of Rs.5 Lakhs to the workman in lieu of reinstatement.
17. Accordingly, both the writ petitions, lacking in merit, are hereby dismissed. Copy of the order be also placed in the connected file.
(INDERJEET SINGH),J Upendra Pratap Singh /57-58 (Downloaded on 04/08/2021 at 09:08:14 PM) Powered by TCPDF (www.tcpdf.org)