Gujarat High Court
Patel Salt And Marine Chemicals Pvt Ltd vs Manguben Premabhai Waghela & on 7 July, 2016
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/6361/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6361 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 6374 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PATEL SALT AND MARINE CHEMICALS PVT LTD....Petitioner(s)
Versus
MANGUBEN PREMABHAI WAGHELA & 1....Respondent(s)
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Appearance:
MR.VARUN K.PATEL, ADVOCATE for the Petitioner(s) No. 1
MR K R MISHRA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 05/07-07-2016
ORAL JUDGMENT
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1. These matters are taken up for final disposal. Hence, Rule. Learned Advocate Mr. Mishra appearing for respondent No.1 waives service of Rule for respondent No.1 in each matter. The Respondent No.2, being formal party, is not required to be issued Rule.
2. In this group of matters, challenge made is to the common award dated 4.12.2014 passed by the Labour Court, Bhavnagar in Reference (LCB) No. 104/04 to 117/04 whereby the Labour Court partly allowed all the references and ordered to reinstate the respondent No.1 of each petition to his original post with 35% back wages with all incidental (consequential) benefits available to respondent no.1 by considering continuity of service.
3. Learned Advocate Mr. Patel for the petitioner submitted that the respondent no.1 in each of the petitions were seasonal workers serving on daily wages basis. Mr. Patel submitted that since the work of respondent no.1 was required in season for 3 to 4 months, they did not continuously served for the whole year and even the respondent no.1 failed to prove by any cogent evidence except their oral say that they had completed 240 days' service in one year. Mr. Patel submitted that for daily wager, no procedure much less the procedure contemplated under section 25-F of the Industrial Disputes Act, 1947 ("the Act") was required to be followed before relieving them from work, and therefore, the labour court was not justified in Page 2 of 15 HC-NIC Page 2 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT granting reinstatement to respondent no.1 on the ground that there was violation of section 25-F of the Act in the case of the respondent No.1. Mr. Patel submitted that though it was for the respondent No.1 to prove that they had worked for 240 days in a calendar year by some documentary evidence, however, the labour court has drawn adverse inference against the petitioner and shifted the onus of proof on the petitioner on the ground that though called upon to produce different documents - registers, the petitioner did not produce the same. Mr. Patel submitted that the non-production of such registers by the petitioner would not ipso-facto prove that the respondent no.1 had worked for 240 days. Mr. Patel submitted that the labour court has committed serious error in awarding 35 back wages to respondent no.1 ignoring the fact that the respondent no.1 worked as seasonal worker and that as per the evidence of respondent no.1, they were earning Rs.250.00 per day by doing household work. Mr. Patel submitted that in the facts of the case, even if the labour court was right in its conclusion that the action taken by the petitioner of relieving the respondent no.1 was illegal, then also, the labour court ought to have awarded lumsum amount in lieu of reinstatement. Mr. Patel has relied on the decision in the case of Himanshu Kumar Vidyarthi and others versus State of Bihar and others reported in AIR 1997 SC 3657; Rajasthan State Ganganagar S. Mills Ltd. versus State of Rajasthan and another, reported in (2004) 8 SCC 161; Radha Tiles, Through Prop. Patel Kantilal Karsandas and others versus Katuben V. Makwana and others, reported in 2015-I-LLJ-
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31 (Guj.),
4. Learned Advocate Mr. Mishra appearing for respondent no.1 submitted that the labour court has recorded finding of fact on appreciation of the evidence that the respondent no.1 had continuously served till they were relieved from service and in each year, they had put in 240 days' service. Mr. Mishra submitted that the labour court has found that the action taken by the petitioner against the respondent no.1 is in contravention of the provisions of section 25-F of the Act and, therefore, the labour court was justified in ordering reinstatement of the respondent no.1. Mr. Mishra submitted that since the labour court has granted only 35% back wages which may not be interfered by this court in exercise of the powers under Article 226/227 of the Constitution of India. Mr. Mishra submitted that in the facts of the case, the labour court was justified in drawing an adverse inference against the petitioner and was also justified to accept the evidence led by the respondent no.1 proving that the respondent no.1 had put in 240 days' service in each year. Mr. Mishra submitted that since the respondent no.1 has served for long period of more than 18 years with the petitioner, there is no question of awarding lumpsum compensation to respondent No.1.
5. Having heard the learned advocates for the petitioner and respondent no.1, it appears that for production of documents like presence register, salary register, over time bill, PF Slip, identity card Page 4 of 15 HC-NIC Page 4 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT etc., respondent no.1 had made applications whereon the labour court passed order directing the petitioner to produce such documents but the petitioner failed to produce such documents as observed by the labour court in its award. The labour court, therefore, has drawn adverse inference against the petitioner by considering inspection note of the Minimum Wage Inspector at Exh.195 and report cum reply made by the petitioner at Exh.197. From Exh. 197, it appears that the petitioner informed the Government Labour Officer and Gratuity Inspector that the petitioner had filled in the nomination forms of the workers and that it had regularly maintained the presence register and salary register and such other documents. In view of such stand taken by the petitioner against the inspection taken by the concerned authority and when the petitioner failed to comply with the order of the labour court to produce the documents, it is not open for the petitioner to contend that the labour court was not justified in drawing adverse inference against the petitioner. It is required to note that the petitioner examined one Padamkant Popatlal Vyas stated to be the manager of the petitioner company. As observed by the labour court in the impugned award, this witness, in his evidence, stated that he has been serving as Manager for the last 33 years. However, he has no evidence to prove that he has been serving for 33 years. He stated that such evidence would be with the company and that the company has been keeping different registers and other documents required to be kept as per the Industrial Law and E.S.I. Law. Based on such evidence, the labour court has Page 5 of 15 HC-NIC Page 5 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT observed that even as per the evidence of this witness for the petitioner, the petitioner has been keeping different registers as required by different laws. In absence of production of such documents by the petitioner, when the oral evidence adduced by respondent No.1 that they had put in 240 days' service in each calendar year remained unshaken, the labour court committed no error in accepting the evidence led by the respondent No.1. Once, the labour court found on appreciation of such evidence that the respondent no.1 had proved that they had completed 240 days' service in each year and no procedure prescribed in section 25-F of the Act was followed, the labour court was justified in ordering reinstatement of the respondent no.1 in service.
6. In the case of Rajasthan State Ganganagar S. Mills Ltd. (supra), relied on by Mr. Patel, the Hon'ble Supreme Court has held that mere non-production of the muster roll for part of the period concerned was not sufficient for the labour court to hold that the workman had worked for 240 days as claimed. In that case, the labour court demanded production of the muster roll for the period from 17.6.1991 to 12.11.1991. The labour court included this period for which the muster roll was not produced and came to the conclusion that the workman had worked for more than 240 days without indicating as to the period to which these 240 days were referable. In the facts of that case, the Hon'ble Supreme Court has Page 6 of 15 HC-NIC Page 6 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT held that only the statement of the workman was not enough to come to the conclusion that he had worked for 240 days in a year. Thus, what was held by the Hon'ble Supreme Court was in the facts of that case and cannot be applied to the facts of the present case. In the case on hand, as stated above, in connection with two applications, even when the labour court directed the petitioner to produce different documents which were stated to be maintained not only as per the evidence of the witness examined by the petitioner but also as per the report-reply Exh. 197 made by the petitioner to the inspecting officer, the petitioner chose not to produce such documents before the labour court. In such circumstances, the labour court could not be said to have committed any error to accept the evidence led by respondent no.1 to record finding that the respondent no.1 had completed 240 days service in every calendar year.
7. In the case of Radha Tiles (supra), relied on by Mr. Patel, the learned Judge, in the facts of the case, held that there was no basis for the Labour Court to draw adverse inference for granting relief to the workman. This decision also will have no application to the facts of the present case as this Court finds that in the facts of the case, the Labour Court was justified in drawing adverse inference against the petitioner.
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8. Mr. Patel, however, submitted that the respondent no.1 were simply daily wagers and no procedure to discontinue their service was required to be followed. In support of such submission, he relied on the above referred three judgments. In the case of Himanshu Kumar Vidyarthi (supra), the petitioners therein were appointed as daily wagers with the department of the State of Bihar and in that context, the Hon'ble Supreme Court has observed that every Department of the Government cannot be treated to be an industry and that when the appointments were regulated by the statutory rules, the concept of 'industry' to that extent stood excluded. In the said context, it is further observed that since they were temporary employees working on daily wages, their disengagement cannot be construed as 'retrenchment' under the Industrial Disputes Act.
9. Learned advocate Mr. Patel however submitted that since the respondent No.1 in each case was seasonal worker and tendered resignation, they were not illegally relieved from service. The Labour Court however has found that it is not proved as to in whose writing the resignations were written and there was no endorsement or note put up as to whether the resignations were accepted or not. It is further observed that the respondent no.1 has specifically denied to have tendered such resignation and there is no clarification as to the thumb impression alleged to have Page 8 of 15 HC-NIC Page 8 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT been taken on the resignation and that the thumb impression is not identified and it is also not stated as to in whose presence, the thumb impression on the alleged resignation were taken. This Court also, having seen copy of resignation, finds that below the thumb impression on the alleged resignation, the name of the respondent no.1 is written. However, neither it is stated that in whose presence, the thumb impression is made nor it is identified by anybody. It is also required to note that if the respondent No.1 was illiterate and the resignation was to be submitted with thumb impression, who prepared the resignation, has not come out. Therefore, when the labour court has not accepted resignation as genuine one, the say of the petitioner that since the respondent no.1 was seasonal worker and therefore tendered the resignation, has rightly not been accepted by the labour court.
10. In Director, Fisheries Terminal Department versus Bhikubhai Meghajibhai Chavda reported in (2010) 1 SCC 47, the Hon'ble Supreme Court held in para 9 to 21 as under:
"9. From the facts as set out herein above and the submissions made by the learned counsel for the parties, the question that requires to be decided whether the Labour Court and the High Court was justified in allowing the claim of the workman. It is not the case of the appellant that it is not an industry as defined under Section 2(j) of the Act, but it was its specific stand before the Labour Court and also the High Court that it is only a seasonal industry and employ workman like the respondent only during fishing season and are relieved at the end of the season and, therefore, Page 9 of 15 HC-NIC Page 9 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT the Labour Court and the High Court were not justified in not only directing the reinstatement of workman into service but also the payment of back wages.
10. This submission of the learned counsel in the appeal requires to be answered with reference to Section 25-A of the Industrial Disputes Act. The Section is as under :
"25A. Application of sections 25C to 25E. - (1) Sections 25C to 25E inclusive [shall not apply to industrial establishments to which Chapter VB applies, or -] (a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or (b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.
(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final."
11. It is now well settled by several judgments of this court, that, where a workman is employed for a seasonal work or temporary period, the workman cannot be said to be retrenched in view of Section 2(oo)(bb). It is relevant to take note of what is stated by this court in the case of Morinda Cooperative Sugar Mills Ltd. vs. Ram Kishan :(SCC p. 654, para 5):
"5.....[that since the work done by the respondents] is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in sub- clause (bb) of Section 2(oo) of the Act."
12. In the normal course, it is the decision of the appropriate Government which is final in determination whether the said industry is seasonal in nature. As has been observed by the Labour Court and the High Court, there has been nothing brought on record by the appellants to support their contention that fisheries is a seasonal industry. There has been no order from Page 10 of 15 HC-NIC Page 10 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT the Government which has been produced by the appellants to state that the fisheries industry is seasonal. There has been no mention of any decision on the part of the appropriate Government with regard to declaring fisheries as a seasonal industry. Therefore, we concur with the finding of the labour court wherein they have concluded that the appellant cannot be classified as a seasonal industry.
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 conditions precedent as contained in Section 25-F of the Industrial Disputes Act, 1947 were not complied with.
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 service.
15. 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.
16. This court in the case of R.M. Yellatty v. Assistant Executive Engineer has observed : (SCC p.116 para 17) "17. However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the Page 11 of 15 HC-NIC Page 11 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT 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, in Page 12 of 15 HC-NIC Page 12 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT 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 in the case of Municipal Corporation, Faridabad v. Siri Niwas wherein 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 25-F of Industrial Disputes Act. Section 25-G 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 25-G has also not been followed. The findings on facts by Page 13 of 15 HC-NIC Page 13 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT the Labour Court cannot be termed as perverse and need no interference."
11. The contention that the labour court ought to have awarded lumpsum compensation to the respondent No.1 cannot be accepted in the facts of the case. When the respondent No.1 have come with a case that they have been serving with the petitioner for long period of 18 years and more, and when the labour court was required to draw adverse inference, there was no question of considering the aspect of awarding lumpsum compensation.
12. In above such view of the matter, the Court finds that no case is made out to interfere with the award of the labour court for reinstatement of respondent no.1 in each petition. However as regards the award for grant of 35% back wages to respondent No.1, the Court finds that when initially the award was made which was stated to be ex-parte award of reinstatement, back wages awarded to respondent no.1 was 25%. The Court, therefore, put to the learned advocate Mr. Mishra as to how the labour court was justified to award 35% back wages when earlier it had decided to award 25% of back wages. Learned advocate Mr. Mishra could not support the award granting 35% back wages to respondent No.1. The Court in the facts of the case, finds it appropriate that grant of 20% back wages to respondent no.1 of each petition will serve the ends of justice, especially when learned advocate Mr. Mishra Page 14 of 15 HC-NIC Page 14 of 15 Created On Tue Jul 12 01:23:22 IST 2016 C/SCA/6361/2015 JUDGMENT stated that if the Court was inclined to award 20% back wages to respondent No.1 in each case, same would be acceptable to respondent No.1.
13. For reasons stated above, the petitions are partly allowed. The award granting 35% back wages shall stand modified so as to grant 20% back wages to respondent No.1 in each case. It is therefore held and ordered that the respondent no.1 in each case shall be entitled to 20% back wages with other consequential benefits by treating the respondent no.1 in continuous service as ordered in the impugned award. Rule made absolute to the aforesaid extent. The petitions as regards challenge to the award of reinstatement of respondent no.1 of each of the petitions with continuity of service and other incidental (consequential) benefits shall stand dismissed.
Sd/-
(C.L.SONI, J.) anvyas Page 15 of 15 HC-NIC Page 15 of 15 Created On Tue Jul 12 01:23:22 IST 2016