Gujarat High Court
Agricultural vs Bhavnaben on 6 May, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/667/2000 3/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 667 of 2000
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AGRICULTURAL
PRODUCE MARKET COMMITTEE - Petitioner(s)
Versus
BHAVNABEN
BHASKARBHAI JOSHI - Respondent(s)
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Appearance
:
MR
KRUNAL NANAVATI FOR NANAVATI ASSOCIATES
for
Petitioner(s) : 1,
MR KL DAVE for Respondent(s) : 1, 1.2.1,
1.2.2,1.2.3
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/05/2010
ORAL
ORDER
1. Heard learned advocate Mr.Krunal Nanavati for Nanavati Associates for petitioner and learned advocate Mr.K.L.Dave for respondent workman, who expired on 24.7.2003. Thereafter, legal heirs and representatives of deceased respondent workman have been brought on record.
2. Learned advocate Mr. Nanavati has vehemently raised contention before this Court challenging award passed by Labour Court, Junagadh in Reference No.1431 of 1990 (Old No.127 of 1989). The dispute has been referred for adjudication in the year 1988 and registered in 1989. The Labour Court has passed an award on 23.8.1999 granting reinstatement in service with continuity and with 75% back wages of interim period with cost of Rs.1500/-.
3. Learned advocate Mr.Nanavati submitted that respondent was working as a daily wager, who was appointed on 1.11.1987. This fact was admitted by workman that he was appointed as a daily wager in letter dated 2.11.1987, which is at Annexure-B (Page-32). Subsequently, allegation was made against employer by workman that letter dated 2.11.1987 written by employer while adopting coercive measure, his service was orally terminated on 5.8.1988 and demand notice dated 6.8.1988 sent to petitioner. The petitioner has not produced muster roll on record. Therefore, adverse inference has been wrongly drawn by Labour Court. He submitted that some vouchers between period from April,1988 to July,1988 were produced but, petitioner is not able to produce other vouchers. He submitted that in all, the workman has completed 210 days' continuous service and it is a burden upon employee to prove 240 days' continuous service. For that, he relied upon decision of Supreme Court in the case of ONGC Ltd. & Anr. v. Shyamlal Chandra Bhowmik reported in 2006 (1) SCC 337. He also submitted that it is a duty and burden upon employee to first discharge it by producing cogent evidence for establishing 240 days' continuous service. Unless and until such burden is not discharged, then burden is not shifted upon employer to disprove the facts before Labour Court. He submitted that mere oral evidence of workman is not enough for shifting the onus upon employer. He also submitted that Labour Court has not given reasons as to why adverse inference has been drawn and how it has been drawn adverse inference against present petitioner. He also submitted that oral evidence of witness of petitioner has not been properly appreciated by Labour Court. He submitted that by witness of petitioner, gainful employment of workman was proved that he was working as a security guard. For that, cutting from newspaper have been produced, even though Labour Court has committed gross error in granting 75% back wages of interim period. Except that, Mr.Nanavati has not raised any other submissions before this Court and not relied upon any other decisions.
4. Learned advocate Mr.Dave submitted that now the workman has expired on 24.7.2003 and therefore, question of reinstatement does not arise, and only question of back wages of 75% is required to be paid by petitioner. He also submitted that Labour Court has rightly examined the matter based on evidence and from deposition of the witness of petitioner vide Exh.40, who made clear statement on oath that they do not keep the attendance register and thereafter, certain documents which were not produced except some vouchers from April,1988 to July,1988 vouchers have been produced. He submitted that documents are in possession of petitioner but intentionally it has not been produced because otherwise 240days must have established on the basis of documents which may produce by petitioner. Therefore, Labour Court has rightly drawn adverse inference against present petitioner. For that, Labour Court has not committed any error which requires interference by this Court. Except that, Mr.Dave has not made any other submissions before this Court and not relied upon any other decisions.
5. I have considered submissions made by both learned advocates and also perused award in question. Initially, this matter has been admitted by this Court granting interim relief which came to be confirmed by an order dated 11.12.2000 subject to compliance of Section 17B of the I.D.Act,1947. Accordingly, relief under Section 17B has been made available to respondent workman.
6. Before the Labour Court, Junagadh, respondent workman has filed statement of claim vide Exh.5, in response to notice issued by Labour Court vide Exh.2. According to workman, he was working with petitioner w.e.f. 1.11.1987 and his service was terminated on 5.8.1988. He was receiving Rs.390/- salary from petitioner. According to workman, he remained in continuous service from 1.11.1987 to 5.8.1988. During this period, he has completed 240 days continuous service and in between period, no break has been given to him and he was not remained absent. Therefore, against termination, industrial dispute was raised and after his termination, new employees have been recruited but, workman was not called by petitioner. Therefore, according to workman, termination of workman is violated by petitioner under Section 25(F), (G) and (H) of I.D.Act,1947. After termination on 5.8.1988 immediately on the next date by Regd.A.D., demand notice was sent by workman on 6.8.1988 to the petitioner. Thereafter, dispute has been referred for adjudication on 7.10.1988 to Labour Court. Against statement of claim, written statement was filed by petitioner vide Exh.10 denying averments made in statement of claim filed by respondent workman.
7. According to petitioner, respondent workman was appointed as a daily wager on Hangami basis and as and when work was available, he was entrusted the work and therefore, he has not completed 240 days continuous service and not entitled any relief prayed in statement of claim. The workman has produced by list Exh.11 certain documents on record vide Exh.19 to Exh.24. The copy of demand notice and reply given by petitioner. On behalf of petitioner vide list Exh.12, documents at Exh.25 to Exh.30 has been produced on record where letter dated 2.11.1987 (Page-32) which has been given by workman to petitioner also produced on record. The petitioner has also produced further documents by list Exh.16 being Exh.31 to Exh.33 wherein vouchers have been produced on record where the amount of salary paid to the workman. Thereafter, by list Exh.34 further documents have been produced vide Exh.35 application which was made by workman on 26.11.1986. On behalf of workman, vide list Exh.37 rationing card has been produced at Exh.38. Thereafter, workman was examined vide Exh.18 and his evidence has been closed vide Exh.29. On behalf of petitioner, Shri Dineshbhai Mohanbhai was examined. Thereafter, their evidence has been closed. Thereafter, written arguments have been produced on record vide Exh.42 by workman and Exh.43 of petitioner. The Labour Court has considered documents produced on record by both parties as well as oral evidence and written arguments submitted by both parties as discussed in Para.8. According to evidence of workman, he was appointed on 1.11.1987 as a Chowkidar and his service was terminated on 5.8.1988 and he was receiving Rs.390/- per month and he has completed 240 days continuous service with petitioner. From the date of termination 5.8.1988 immediately on the next date, demand notice was sent to petitioner by workman. According to petitioner, respondent workman has completed only 210 days' service and not completed 240 days continuous service. For that, written documents has been produced which has been bear the signature of workman. But, according this workman this document have been obtained by adopting coercive measure from respondent workman. The Labour Court has considered that workman was covered by definition of 'workman' under Section 2(s) of the I.D.Act,1947. Thereafter, Labour Court has considered that total period of service rendered by workman w.e.f. 1.11.1987 to 5.8.1988 and therefore, Section 25(B) has been considered where workman is remained in service less than one year but completed 240 days continuous service. Section 25B(2) has been considered by Labour Court where one year continuous service is not necessary if workman has completed 240 days continuous service in less than one year period, then it has to be considered one year continuous service. This deeming provision has been kept in mind by Labour Court. (See : Moti Ciramics Industries Vs. Jivuben Rupabhai, 2000 II CLR 156.) The undisputed facts as per evidence of witness of petitioner Exh.17 that workman has completed 210 days continuous service of 210 days and not 240 days. But vide Exh.14 demand was made by workman from petitioner to produce entire record of presence register where presence was marked for the period from November, 1987 to August, 1988. But this muster attendance has been lost and mis-placed and even though it is not traceable with the petitioner. Therefore, vide Exh.40 evidence of witness of petitioner admitted that workman has completed 210 days. Vide Exh.31 to Exh.33 it has been proved before Labour Court that workman was remained in service upto August, 1988. The witness Exh.40 of petitioner admitted in his evidence that muster has not been kept with petitioner but whatever the vouchers were available has been produced on record but, that cannot consider to be a complete voucher of entire period from November, 1987 to August, 1988. Therefore, documents which has been demanded by application Exh.14 not produced by petitioner because such documents have been lost by petitioner. On that basis Labour Court has rightly drawn adverse inference against present petitioner. For that, according to my opinion, Labour Court has not committed any error which requires interference by this Court. The Labour Court has considered that according to Apex Court's decision, in case if 210 days' continuous service is established and admitted by petitioner, then considering holidays and public holidays if that days are included, then workman has completed continuous service of 240 days. Therefore, workman has remained in service with petitioner for the period from 1.11.1987 to 5.8.1988 and completed 240 days continuous service as per decision of Apex Court in the case of Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation reported in AIR 1986 SC 458. Relevant observations are in Para.5 and 6 are quoted as under :
5.
Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief under S. 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in S. 25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is S. 25-B(2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman. during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to S. 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workman had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages - and we see no impediment to so construe the expression - there is no reason why the expression should be limited by the explanation. To give it any other meaning then what we have done would bring the object of S. 25-F very close to frustration. It is not necessary to give examples of how S. 25-F may be frustrated as they are too obvious to be stated.
6. The leading authority on which reliance was placed by the learned counsel for the Management was Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd., (AIR 1981 SC 852). We may straightway say that the present question whether Sundays and paid holidays should be taken into account for the purpose of reckoning the number of days on which an employee actually worked, never arose there. The claim was under the Payment of Gratuity Act. All permanent employees of the employer claimed that they were entitled to payment of gratuity for the entire period of their service, that is, in respect of every year during which they were in permanent employment irrespective of the fact whether they had, actually worked for 240 days in a year or not. The question there was not how the 240 days were to be reckoned; the question was not whether Sundays and paid holidays were to be included in reckoning the number, of days on which the workmen actually worked; but the question was whether a workman could be said to have been actually employed for 240 days by the mere fact that he was in service for the whole year whether or not he actually worked for 240 days. On the language employed in S. 2(c) of the Payment of Gratuity Act, the Court came to the conclusion that ,the expression 'actually employed' occurring in Explanation I meant, the same thing as the expression 'actually worked' occurring in Explanation II and that as the workmen concerned had not actually worked for 240 days or more in the year they were not entitled to payment of gratuity for that year. The further question, as to what was meant by the expression 'actually worked' was not considered as apparently it did not arise for consideration. Therefore, the question whether Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workmen could be said to have actually worked was not considered in that case. The other cases cited before us do not appear to have any bearing on the question at issue before us.
8. The Labour Court has also considered that workman was not appointed on project or scheme and it was not the periodical appointment given by petitioner to workman. The petitioner has not produced any appointment order or termination order on record and petitioner has not supplied any documents in respect of service condition to workman during course of employment. Therefore, service of workman has been terminated being a simple termination and not by way of disciplinary action. Therefore, it amounts to retrenchment within the meaning of Section 2(oo) of I.D.Act,1947. In such circumstances, before terminating service of workman, Section 25(F) of the I.D.Act,1947 must have to be complied with by petitioner which was not complied with undisputedly. Therefore, such termination has been rightly held to be invalid by Labour Court. According to my opinion, Labour Court has rightly decided reference and rightly come to conclusion that retrenchment of workman is contrary to Section 25(F) of the I.D.Act,1947.
9. The Labour Court has considered question of gainful employment after considering evidence of workman at Exh.18 and also keeping in mind evidence of workman that he was doing some misc. work for a period of 3 to 4 months and thereafter, he has made efforts to get the job but, he was not able to get it and he was earning Rs.350/- to Rs.400/- but, for rest of period he remained unemployed. Therefore, Labour Court has considered evidence of workman and there was no evidence produced by petitioner to prove gainful employment. Therefore, according to my opinion, Labour Court has not committed any error in granting 75% back wages in favour of respondent workman.
10. Learned advocate Mr.Nanavati has relied upon decision of Apex Court in case of ONGC Ltd. & Anr. v. Shyamlal Chandra Bhowmik reported in 2006 (1) SCC 337. It is necessary to note that period of service from 1.11.1987 to 5.8.1988 are not in dispute between the parties. The question is whether workman has completed continuous service of 240 days or not. That fact must have to be established by workman while producing some cogent evidence in support of it. He submitted that mere affidavit is not enough but, some independent additional evidence is necessary as per aforesaid decision of Apex Court in case of ONGC Ltd. (Surpa). While considering aforesaid decision as relied upon by Mr.Nanavati, the question is whether during the course of employment, any document has been supplied by petitioner to workman in respect to service condition or not. Looking to record and evidence which are before Labour Court, it was not the case of petitioner that appointment order was issued each month, pay slip has been supplied, identity card has been supplied and muster card has also been issued in favour of workman. So it is a case of workman who has not been supplied any documents by employer. Therefore, what independent / cogent evidence can be produced by workman, who was working as a daily wager with petitioner. Therefore, in light of this subsequent development on legal aspect, the Apex Court in case of R.M.Yellatti v. Assistant Executive Engineer reported in 2006 (1) SCC 106 which decision has been delivered by three Judges' Bench of this Court and decision which has been relied by Mr.Nanavati is of decision of 2 Judges' Bench. Thereafter, recently, case of R.M.Yallati has been considered by Apex Court in case of Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda reported in AIR 2010 SC 1236. Relevant Para.13 to 16 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 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. 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. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :
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.
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 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 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 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.
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.
11. In view of aforesaid decision delivered by Apex Court recently considering earlier decision of three Judges' Bench in case of R.M.Yallati as referred above, according to my opinion, in absence of documents supplied by petitioner to workman during course of employment, then workman may not having any cogent evidence with him for discharging burden for proving 240 days continuous service. Therefore, in such circumstances, oral evidence of workman is enough in discharging burden to establish 240 days continuous service. Thereafter, onus has been shifted upon employer to disprove the facts stated by workman by producing relevant documents which are in possession of petitioner. But that total and complete record not produced by petitioner and knowing fully well that presence attendance register has been mis-placed as per evidence of witness of petitioner and vouchers are also not produced completely covering entire period and therefore, in light of half hearted approach accordingly documents produced by petitioner before Labour Court against oral evidence of workman and admitting 210 days' continuous service and if holidays and public holidays are included, then also 240 days has been completed. Therefore, adverse inference has rightly been drawn by Labour Court. For that, Labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of the Constitution of India. The Labour Court has rightly granted relief in favour of workman reinstating with 75% back wages. For that also, Labour Court has not committed any error which requires interference by this Court. The award which has been passed by Labour Court based on facts and such fact finding cannot be disturbed by this Court while exercising powers under Article 227 of the Constitution of India. (See : State of Haryana & Ors. v. Manoj Kumar reported in 2010 AIR SCW 1990, Para.22 to 29.)
12. In result, according to my opinion, Labour Court has not committed any error which requires interference by this Court. Therefore, contentions raised by learned advocate Mr.Nanavati cannot be accepted and hence, rejected. Therefore, there is no substance in present petition. Accordingly, present petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
13. It is necessary to note that workman has expired on 24.7.2003. The Labour Court has granted 75% back wages from date of termination 5.8.1988 and award has been passed on 23.8.1999. After petition was filed by petitioner, reinstatement has been stayed by this Court but, relief of Section 17B of I.D.Act,1947 has been made available by petitioner to workman. Therefore, it is directed to petitioner to pay regular wages from date of award 23.8.1999 till date of death of workman 24.7.2003 to legal heirs and representatives of respondent workman after deducting last drawn wages which has been paid by petitioner to concerned workman. It is further directed to pay 75% back wages with consequential benefits as per award to legal heirs and representatives of respondent workman from date of termination 5.8.1988 till date of award 23.8.1999. Aforesaid all the payments are required to be made by petitioner to widow of respondent workman Bhavnaben Bhaskarbhai Joshi by account payee cheque after proper verification, within a period of one month from date of receiving copy of present order.
(H.K.RATHOD,J.) (vipul) Top