Gujarat High Court
State Of Gujarat vs Laxmansinh Nathusinh Chauhan & on 18 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/11679/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11679 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 11687 of 2014
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STATE OF GUJARAT....Petitioner(s)
Versus
LAXMANSINH NATHUSINH CHAUHAN & 1....Respondent(s)
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Appearance:
MR BHARAT VYAS, AGP for the Petitioner(s) No. 1
MR PRABHAKAR UPADYAY, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 18/09/2015
ORAL ORDER
1. These petitions are filed under Articles 226 and 227 of the Constitution of India by the State of Gujarat through the Executive Engineer, Modasa Irrigation Sub-division, Sabarkantha, whereby the state has challenged the common judgment and award dated 31.8.2012 passed by the Labour Court, Himmatnagar in Reference(LCH) No.4 of 2006 and LCA No.13 of 2006 and allied matters, whereby the Labour Court directed the petitioner to reinstate the respondents-workers on their original post without any back wages but with continuity of service.
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2. The issue involved in this group of petitions is common and, therefore, these petitions are disposed off by this common judgment. However, for the sake of brevity and convenience, facts of Special Civil Application No.11679 of 2014 are stated in this order.
3. Heard learned AGP Mr.Bharat Vyas for the petitioner and learned advocate Mr.Prabhakar Upadhyay for respondent-workman in each of the petitions.
4. Learned AGP Mr.Vyas appearing for the petitioner submitted that respondent-workman was working as a daily wager with the petitioner since 1981 and he was assigned the work under different projects of irrigation. However, on completion of irrigation work, the respondent- workman was not re-engaged after January, 1998. The respondent-workman, therefore, raised the industrial dispute which was culminated into reference which was referred to the Labour Court, Himmatnagar and the same was registered as Reference (LCH) No.4 of 2006. The respondent submitted statement of claim and the petitioner filed the written statement Exh.26 and opposed the claim made in the statement of claim. The Labour Court, after considering the documentary Page 2 of 16 HC-NIC Page 2 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER as well as oral evidence on record, partly allowed the said reference by an award dated 31.8.2012 directing the petitioner to reinstate the respondent-workman on his original post without any back wages but with continuity of service. The petitioner, thereafter, filed Review Application no.2 of 2012 before the Labour Court for correction of name of workman Laxmansinh Nathubhai Chauhan instead of Shivsinh Nathusinh Parmar. The said review application was allowed by order dated 4.7.2013 and permitted to correct the name of the said workman. Learned AGP submitted that the impugned award is bad, illegal and perverse and, therefore, the same may be quashed and set aside. He mainly contended that the respondent-workman was engaged only for irrigation work on different projects and on completion of such work, he was not re-engaged after 1998 and, therefore, the action of the petitioner cannot be considered as termination of service of the respondent-workman. The respondent-workman was not appointed as per the recruitment rules. There was no sanctioned post or procedure for recruitment and, therefore, the respondent-workman cannot be reinstated at his original post. Learned AGP would, thereafter, contend that the respondent-workman was engaged as daily wager. However, he has not completed 240 days in the last preceding 12 months and, Page 3 of 16 HC-NIC Page 3 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER therefore, there is no violation of Section 25F of the I.D.Act. The Labour Court has wrongly held that the burden of proof is on the employer to prove that the workman has not completed 240 days. The Labour Court has committed an error in coming to the conclusion that the petitioner- employer has not produced entire muster roll from 1981-2005 and, therefore, adverse inference was drawn against the petitioner to the effect that the respondent-workman has completed 240 days in last preceding 12 months. Learned AGP Mr.Vyas has placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Krishna Bhagya Jala Nigam Limited V/s Mohammed Rafi, reported in (2009)11 SCC 522, wherein the Hon'ble Supreme Court has held that the burden of proof as to completion of 240 days of continuous work in a year lies on the aggrieved workman.
5. Thereafter, learned AGP has placed reliance upon the decision rendered by this Court in the case of Gujarat Agricultural University V/s Rudabhai Gigabhai and others, reported in 2009(2) GLH 165. Learned AGP has, more particularly, relied upon paragraph 8 of the said judgment.
6. Learned AGP, therefore, submitted that the impugned award passed by the Labour Court is Page 4 of 16 HC-NIC Page 4 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER required to be quashed and set aside.
7. On the other hand, learned advocate Mr.Prabhakar Upadhyay supports the reasoning given by the learned Labour Court while passing the impugned order. He submitted that the Labour Court has granted reinstatement with continuity of service only and the request of the respondent-workman for grant of back wages is not accepted. He further contended that the muster roll and vouchers during the period between 1981 to 2005 were in possession of the petitioner- employer and, therefore, the respondent-workman gave an application Exh.14 whereby request was made to the Labour Court to direct the respondent-employer to produce the documents which are in possession of the petitioner. The Labour Court granted the said application and directed the petitioner to produce the documents. However, the petitioner failed to produce the same and, therefore, the Labour Court has rightly held that the petitioner has failed to produce the documents. Therefore, adverse inference was drawn by the Labour Court. Learned advocate Mr.Upadhyay thereafter contended that the Labour Court has specifically observed that the respondents-workers have worked during the period between 1981 to 2005 and, therefore, the action of the petitioner of terminating the services of Page 5 of 16 HC-NIC Page 5 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER the respondents-workers is violative of Section 25F of the I.D.Act and hence direction was given to the petitioner to reinstate the respondents- workers with continuity of service. Thus, no illegality is committed by the Labour Court.
8. Learned advocate Mr.Upadhyay has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Director, Fisheries Terminal Division v/s Bhikubhai Meghajibhai Chavda, reported in (2010)1 SCC 47, more particularly, paragraphs 15 and 16 of the said judgment.
9. Learned advocate Mr.Upadhyay appearing for the respondent, thereafter, relied upon the decision rendered by the Hon'ble Supreme Court in the case of Sriram Industrial Enterprises Ltd. V/s Mahak Singh, reported in (2007)4 SCC 94, more particularly, on paragraphs 27 to 30.
10. Thereafter, learned advocate Mr.Upadhyay has placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of R.M.Yellatti V/s Assistant Executive Engineer, reported in (2006)1 SCC 106 and more particularly on paragraphs 13 and 14.
11. I have considered the arguments advanced on behalf of learned advocates for the parties. I Page 6 of 16 HC-NIC Page 6 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER have also gone through the material produced on record as well as the impugned award. From the record, it is clear that the respondent-workman in each of the petitions have worked during the period between 1981-2005 as daily wagers with the petitioner. However, the services came to be terminated in the year 2005 without following procedure contained in Section 25F of the I.D.Act. The main contention of the petitioner- government is that the respondents-workers have not completed 240 days in a particular year. The petitioner has not produced entire record before the Labour Court. However, only certain muster rolls were produced which were in favour of the petitioner. In fact, the application Exh.14 was given by the workers for production of documents i.e. muster rolls, wage registers, vouchers etc. during the period between 1981-2005. However, the petitioner-employer has produced only the muster rolls for the period 1990-1992. Thus, though the direction was given by the Labour Court for production of the aforesaid documents to the petitioner, no such documents were produced. The concerned workers have specifically stated in the statement of claim as well as during the course of deposition that they have worked for 240 days in the preceding 12 months before their services were terminated. Thus, it was the duty of the petitioner-employer to produce the evidence Page 7 of 16 HC-NIC Page 7 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER before the Labour Court and it was the duty of the petitioner-employer to prove that the concerned workman had not completed 240 days as alleged by them. Thus, in absence of production of documents as per the order of the Labour Court, adverse inference was rightly drawn by the Labour Court. It is required to be noted that it is admitted by the petitioner that the respondents-workers have worked during the period between 1981-2005. Thus, looking to the services rendered by the respondents-workers during the aforesaid period, Labour Court has held that they are entitled to be reinstated with continuity of service.
12. In the case of Director, Fisheries Terminal Division (supra), the Hon'ble Supreme Court has held in paragraphs 15 and 16 as under:
"15) Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the Page 8 of 16 HC-NIC Page 8 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988.
The witness produced by the appellant stated that the respondent stopped coming to work from 10th February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, 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 [(2004) 8 SCC 195], where it is observed:
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
16) It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25F of Industrial 11 Disputes Page 9 of 16 HC-NIC Page 9 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER 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."
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."
13. In the case of Sriram Industrial Enterprises Ltd. (supra), reported in (2007)4 SCC 94, more particularly, on paragraphs 27 to
30. Page 10 of 16 HC-NIC Page 10 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER "27. 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.
28.The said approach, in our view, was erroneous in view of the decision of this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. (supra). The petitioner had wrongly described the documents relating to attendance for the years 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 workmen 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.
29. 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.
30. 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 Page 11 of 16 HC-NIC Page 11 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER 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's case (supra) were watered down by the subsequent decision in R.M. Yellatty's case (supra) and in our view the workmen had discharged their initial onus by production of the documents in their possession."
14. In the case of R.M.Yellatti (supra), and more particularly on paragraphs 13 and 14.
"13. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22.11.1988 to 20.06.1994. This period is the period borne out by the certificate (exhibit W1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, exhibit M1, exhibit M2 and exhibit M3, did not even relate to the concerned period. The relevant NMRs produced by the management were exhibit M4 and exhibit M5, which indicated that the workmen had worked for 43 days during the period 21.01.1994 to 20.02.1994 and 21.03.1994 to 20.04.1994 respectively. There is no explanation from the side of the management as to why for the remaining Page 12 of 16 HC-NIC Page 12 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER period the nominal muster rolls were not produced. The labour court has rightly held that there is nothing to disbelieve the certificate (exhibit W1). The High Court in its impugned Judgement has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the division bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the labour court and confirmed by the learned single judge vide order dated 7.06.2000 in writ petition no.17636 of 2000. This is not, therefore, a case where the allegations of th workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and exhibit W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No.1, Athani-
591304. In the present case, the defence of the management was that althouogh exhibit W1 refers to the period 22.11.1988 to 20.06.1994, the workman had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this Judgement on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (exhibit W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact.
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14. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees.
They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days for which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government."
15. Keeping in view the decision rendered by the Hon'ble Supreme Court in the aforesaid cases, I am of the opinion that the reasoning given by the Labour Court after appreciating the evidence on record cannot be said to be perverse nor the Page 14 of 16 HC-NIC Page 14 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER Labour Court has exceeded its jurisdiction and, therefore, no interference is required while exercising powers under Article 227 of the Constitution of India. It is well settled that the scope of judicial review is very limited and this Court cannot reappreciate the evidence. The decision relied upon by learned AGP rendered by this Court in the case of Gujarat Agricultural University is not applicable to the facts of the present case. In the said case, the concerned workers were claiming benefit of status of permanent workmen though they were working as temporary or casual basis for long period. This Court in the facts of the case held that the award of the Labour Court to treat the concerned temporary workers and the workers working on temporary basis as permanent workmen by awarding the status of permanency is not in accordance with law and, therefore, the award was set aside by this Court. Another decision relied upon by learned AGP rendered by the Honourable Supreme Court in the case of Krishna Bhagya Jala Nigam Limited (supra) is also not applicable to the facts of the present case. In the present case, the concerned workers have specifically stated that they had worked for 240 days in the preceding 12 months and they were in continuous service as daily wager from 1981-2005. The respondents-workers gave application Exh.14 for Page 15 of 16 HC-NIC Page 15 of 16 Created On Wed Sep 23 01:25:52 IST 2015 C/SCA/11679/2014 ORDER production of documents. The Court granted the said application and directed the petitioner to produce muster roll, wage register and vouchers during the period from 1981-2005. However, the petitioner has produced muster roll for only three years. Thus, the Labour Court has drawn adverse inference. Thus, in the facts of the present case, the aforesaid decision rendered by learned AGP is not applicable.
16. In view of the above discussion, I am in complete agreement with the reasoning given by the learned Labour Court and hence, all these petitions are liable to be dismissed and accordingly all these petitions are dismissed. Notice is discharged in all the petitions.
(VIPUL M. PANCHOLI, J.) Srilatha Page 16 of 16 HC-NIC Page 16 of 16 Created On Wed Sep 23 01:25:52 IST 2015