Chattisgarh High Court
Chhattisgarh Sponge Iron & Ispat ... vs Nova Iron & Steel Ltd & Another on 23 March, 2012
HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION L NO 4055 OF 2006
Chhattisgarh Sponge Iron & Ispat Shramik Sangh
...Petitioners
Versus
Nova Iron & Steel Ltd & Another
...Respondents
! Ms Sudha Bhardwaj Advocate for the petitioner ^ Shri N K Vyas Advocate for the respondent CORAM: Honble Shri Satish K Agnihotri J Dated: 23/03/2012 : Judgement (Delivered on this 23rd day of March, 2012) (Writ Petition under Article 226 & 227 of the Constitution of India)
1. By this petition, the petitioner-union impugns the legality and validity of the award dated 12.05.2006 (Annexure P/8) passed by the Industrial Court in reference No. 01/C.G.I.R. Act/I/2004 and further seeks a direction to reinstate the contract workers of the petitioner union (for short "the workers") in service with all consequential benefits.
2. The facts, in brief, as projected by the petitioner, are that the petitioner is a trade union in the name and style of Chhattisgarh Sponge Iron & Ispat Shramik Sangh. The workers of the petitioner union were working in the respondent No.1 factory for a long time and the said factory was not maintaining any statutory records pertaining to employees. Thus, a demand was raised on 23.06.1997 (Annexure P/1). Demand of notice, thereafter, was sent again on 16.02.2001 (Annexure P/2). The matter was sent for conciliation. However, the conciliation proceedings failed. Thus, the matter was referred by the Assistant Labour Commissioner to the Government. The Government having considered the entire disputes referred the matter to the Industrial Court, Raipur, on the following issue;
"Whether termination of 81 contract workers, 4 years before was legal and proper, if not what direction can be issued in this regard to the employer ?"
3. Thereafter, the statement of claim was filed by the petitioner union (Annexure P/5) stating therein, inter alia, that 81 workers were working continuously in service and their services have been disengaged by oral order.
Thus, retrenchment of 81 workers was not in accordance with the provisions of Sections 25F and 25N of the Industrial Disputes Act, 1947 (for short "the Act, 1947").
Accordingly, the retrenchment be declared as illegal and the respondent No. 1 be directed to reinstate 81 workers, as aforestated, in service with all consequential benefits.
4. Ms. Sudha Bharadwaj, learned counsel appearing for the petitioner union, would submit that there was a clear statement, in the statement of claim that the workers were working continuously with the employer and without following the provisions of Sections 25F and 25N of the Act, 1947, the retrenchment has been ordered. Ms. Bharadwaj would further submit that the finding of the Industrial Court that there is no statement in the claim petition, is contrary to the facts. Learned counsel would next submit that since the co-workers could not be examined before the Labour Court to come to a conclusion that the workers had worked for 240 days in the preceding year, the matter may be remitted back to the Industrial Court for fresh consideration.
5. On the other hand, Shri Vyas, learned counsel appearing for the respondent No. 1, submits in support of the impugned order passed by the Industrial Court reiterating again that the workers of the petitioner union were contract workers. Shri Vyas would further submit that there was admission of the workers that they have no record or proof to produce that they have worked regularly asto constitute 240 days in the preceding year to invoke the provisions of Sections 25F and 25N of the Act, 1947. Shri Vyas would next submit that the petitioner union had full opportunity to produce witnesses, examine documents, etc. Since there is no perversity in the impugned order, the matter may not be remitted back to the Labour Court for fresh hearing, at this stage, in exercise of power under supervisory jurisdiction.
6. I have heard the learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
7. The Industrial Court has categorically recorded the finding that there was a relationship of employee and employer between the workers and the respondent No.1. The pre-condition to invoke the provisions of Section 25-F is to work continuously for 240 days in the preceding year. The petitioner union has not produced any evidence or documentary proof, wage slips except the self-same statement that the workers had worked continuously for more than 240 days in the preceding year.
8. It is well settled principle of law that the burden of proof to establish that the workman had worked 240 days within a period of 12 months was on the workman.
9. In Municipal Council, Sujanpur v. Surinder Kumar1, the Supreme Court observed as under :-
"12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden, was on the workman."
10. In Surendranagar Distt. Panchayat and another v.
Gangaben Laljibhai and others2, the Supreme Court observed as under : -
"12. It was held in all these cases that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer."
11. The Supreme Court in R.M. Yellatti v. Asstt.
Executive Engineer3, observed as under :
"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 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..."
12. This Court in The State of M.P. v. Bhairav Prasad Mishra4, observed as under :
"8. Section 25-F of the IDA provides for condition precedent for retrenchment of a workman wherein condition is continuous service for not less than one year under the employer shall entitle workman to the benefits of one month's notice in writing and retrenchment compensation payable before retrenchment. Continuous service for not less than one year under provisions of Section 25-F read with Section 25-B of the IDA means 240 days in the preceding year. The Labour Court has not calculated the working of 240 days in the preceding year but for the total period from 1981 to 1988 and came to the conclusion that the respondent has worked for more than 240 days. This is contrary to well established principles of law.
Thus, holding retrenchment as illegal, is not in accordance with the provisions of Sections 25-B and 25-F of IDA. Thus, the impugned order is not proper and deserves to be set aside."
13. Applying the well settled principles of law to the facts of the present case and looking to the abovestated facts, it is not the case where the matter be remitted back to the Industrial Court for fresh consideration.
14. As an upshot, the writ petition fails and is hereby dismissed. No order asto costs.
J u d g e