Gujarat High Court
The vs Amarben on 5 November, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/21863/2007 23/ 23 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 21863 of 2007
=========================================================
THE
EXECUTIVE ENGINEER - Petitioner(s)
Versus
AMARBEN
NATHABHAI - Respondent(s)
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Appearance
:
Mr.
Hukum Singh, AGP for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 24/08/2007
ORAL
ORDER
Heard learned AGP Mr. Singh for petitioners in this petition.
Through this petition under Article 227 of the Constitution of India, the petitioner State of Gujarat has challenged the award of the labour court, Surendranagar dated 6.6.07 in Reference No. 75 of 2005 wherein the labour court has granted reinstatement in favour of the respondent workmen without back wages for intervening period.
Learned AGP Mr. Singh appearing for the petitioner State of Gujarat submitted that the labour court has committed gross error in granting relief of reinstatement in favour of the respondents herein. It is also contended by him that no documentary evidence was produced by the respondent workmen before the labour court for proving completion of 240 days continuous service. He also raised contention that the onus was upon the workmen to prove that he has completed 240 days continuous service and had failed in discharging his initial burden and, therefore, labour court has committed gross error in granting relief in favour of the respondent workman. It is also contended that the labour court has erred in not properly appreciating the oral evidence of the witness for the petitioner and only relied upon the evidence of the respondent workmen and, therefore, labour court has committed gross error in coming to such conclusion. He also contended that section 25G, 25H have also not been violated by the petitioner and yet finding is given by the labour court contrary to the evidence on record. Except these submissions, no other submissions were made by the learned AGP on behalf of the petitioner and no decision was cited by him before this court in support of their submissions.
I have considered the submissions made by the learned AGP on behalf of the petitioner. I have also perused the impugned award and the documents produced by the petitioner along with these petitions.
Dispute between the parties was referred to for adjudication thereof by the Assistant Labour Commissioner, Surendranagar vide his order dated 7.6.2005 as to whether the workmen concerned should be reinstated in service with back wages for interim period from 1.4.86 or not?
As per the statement of claim filed by the workman concerned before the labour court, workman was performing duties in the establishment of petitioner since 1973 continuously and without any break and completed service of more than 240 days and yet on 1.4.89, petitioner orally terminated her service without complying with the mandatory provisions of section 25F since no notice or notice pay in lieu thereof and retrenchment compensation was paid to her at the time of her retrenchment and at the time of her retrenchment, seniority list of workmen working in the establishment was not produced and subsequent to her retrenchment, fresh workmen were engaged by petitioner establishment without first calling the respondent workman and, therefore, termination is violative of section 25F and G. Inspite of repeated oral requests made by workman before the petitioner, the petitioner has not engaged them for work and, therefore, ultimately, respondent raised demand for work which too was not replied nor work was given to them. Therefore, respondents lodged complaint before the Assistant Commissioner of Labour, Surendranagar wherein the matter was referred to for adjudication to the labour court Surendranagar.
As per the written statement filed by the petitioner establishment before the labour court, it was denied that the respondent was performing duties as rojamdar since 1973 and has not completed 240 days or more than that in a single year. It was contended that in seniority list of the establishment of the workmen who have completed 240 days, there is no name of respondent workman and, therefore, workman has not completed 240 days in a year. However, for substantiating this contention, seniority list was not produced by petitioner before labour court to show that she is not completing 240 days in a year. It was denied that the petitioner has violated section 25F,G and H as alleged by the workman. therefore, question of terminating their service is not arising. Demand of the applicant for back wages being illegal, liable to be rejected and, therefore, it was prayed to dismiss the reference.
Vide documentary evidence list at Exh. 7, petitioner establishment has produced xerox copy of the muster roll of the working days of the respondent workman. Affidavit in the form of evidence was filed by the respondent workman vide Exh. 9 reiterating the facts stated by her in statement of claim and she was thereafter cross examined by the petitioner establishment wherein it was stated by her that she had joined the petitioner establishment in the year 1973 and that she was performing work on Limdi Dhandhuka Road, worked continuously from 1973 to 1989; her presence was being marked in the muster roll and at the end of the month, by obtaining her signature on the muster roll, she was being paid the wages.
Vide Exh. 11, witness for petitioner Shri Dilipbhai Naranbhai Solanki was examined before the labour court who has reiterated the facts of the written statement of the petitioner and has stated that the presence of workman was being marked in muster roll, her signature was being obtained therein and she was thereafter being paid the salary, thus statement made by workman in her cross examination is corroborated by this witness that the presence of workman was being marked in muster roll, her signature was being obtained therein and she was thereafter being paid the salary.
Thereafter, labour court has referred to and relied upon the decision of the Hon'ble Supreme Court in RM Yellatti vs. Asstt. Executive Engineer, reported in 2005(9) SCALE p. 139 = 2006(1) SCC 106. Considering the oral evidence of the workman which was supported by the oral evidence of the witness for the petitioner and the muster roll produced by the petitioner vide documentary evidence list Exh. 7, labour court has held that the presence of the workman was being marked in the muster roll and was being paid by obtaining her signature in the muster roll at the end of the month. Labour court has considered that on the basis of the muter roll produced by petitioner that the petitioner has produced muster of 1977 as per which workman performed duties of 216 days and the year 1978 wherein workman performed duties of 109 days but petitioner has not produced muster roll of the whole period though it was in its custody in view of that, the labour court considered the decision of the apex court RM Yellatti (supra) and considering that decision, the labour court has come to the conclusion that by oral evidence of the respondent, completion of 240 days has been proved because petitioner has not produced duty book where presence of the workmen was being marked and based upon that finding, therefore, labour court came to the conclusion that section 25F has been violated by the petitioner. Labour court has also considered that the seniority list of the workmen working in the establishment was not being maintained by the petitioner which is violative of section 25G and subsequently, after termination, new workmen were appointed and at that time, respondents were not called for work by the petitioner and, therefore, section 25H is also violated. After termination of the respondents herein by the petitioner, demand for work was made by the respondents but they were not given work and yet new labourers were appointed by the petitioner and that fact was admitted by the witness for the petitioner in his cross examination as referred to above and, therefore, labour court has considered the decision of the apex court in Central Bank of India versus S. Satyam and another reported in 1996 (5) SCC page 419 and thereafter, labour court has come to the conclusion that the termination is violative of section 25F, 25G and 25H of the ID Act, 1947 and based upon such conclusion, labour court granted reinstatement in service on their without back wages for interim period.
Considering the deposition of the witness for the petitioner and also considering the apex court decision in RM Yellatti versus Asstt. Engineer (supra), the labour court considered that when establishment has been maintaining the muster rolls of the workmen and those muster rolls are in its custody, then, same should have been produced by the establishment before the court for enabling the court to decide the matter and therefore, labour court has come to the conclusion that there is violation of section 25F of the ID Act, 1947. Labour court has considered the oral evidence of the workman at Exh. 15 wherein it was stated by him that he was not given presence card, wage slip or identity card by the petitioner establishment and was being paid by obtaining his signature in the nominal muster rolls which are in possession of the establishment. Same thing was stated by witness for petitioner in his oral evidence that the workmen was marking her presence in nominal muster rolls and was being paid her wages by obtaining their signatures in muster roll itself which are in possession of petitioner. Now, in absence of any documentary proof about continuous service of 240 days, workman clearly stated that she is not having any documentary evidence and all such documents are in custody of petitioner. Witness for petitioner is not coming forward with case that such documents are not in custody of the petitioner and yet not producing all those documents beore the court and, therefore, labour court was justified in drawing an adverse inference against the petitioner on the basis of evidence on record. Therefore, relying upon oral evidence of workmen not controverted by the petitioner, and considering non production of material documents from the custody of the petitioner, labour court drew adverse inference against the petitioner by considering the apex court decision in RM Yellatti (supra) and held that there is breach of section 25(F) of the ID Act, 1947.
No evidence was produced by petitioner to controvert the oral version of the workmen that they were remaining in service continuously from the date of their joining and at the time of their termination, junior to the respondent workmen remained in service, their presence was being marked in the muster rolls and nature of work is also mentioned or recorded in the muster rolls but said documents were not produced by the petitioner and witness for the petitioner also stated that those documents are in the custody of the petitioner. No documents were produced by petitioner and witness for the petitioner made certain admissions referred to in detail above. Therefore, on that basis and while appreciating the oral evidence of the witness for the petitioner, labour court has come to the conclusion there is breach of section 25G and H since seniority list was not produced by the petitioner before the labour court and therefore, labour court came to the conclusion that the action of the petitioner is violative of section 25F,G and H. Next question is about section 25-G and 25-H, whether applicable in case when section 25F has not been violated or when workman has not completed 240 days continuous service, then whether section 25G and 25H would apply or not. Of course, this question is not relevant in view of the facts of the present case before hand because in this case, labour court has given clear finding that there has been violation of section 25F of the ID Act and labour court has also held that the workmen concerned have completed 240 days continuous service. However, this case has been examined by this court that section 25G and 25H of the ID Act, 1947 are independent and distinct sections and for claiming benefit thereof, it is not necessary for the workman to contend and prove that there has been breach of section 25F of the ID Act, 1947. Moment, termination of workman is covered by the definition of 'retrenchment' under section 2(oo), then, irrespective of the fact whether he has been completing 240 days continuous service or not, court can independently examine as to whether section 25G and 25H are followed by the employer or not as decided by this court (Coram : Hon'ble Mr. Justice MR Shah,J.) in SCA No. 6262 of 2005 with SCA No. 12616 of 2005 dated 25th July, 2005. In said matter, this court has observed as under in para 12, 13, 14 and 15:
?S12.
The Labour Court on appreciation of the evidence and considering the fact that the workman has worked only for 3 days in the year 1983 and for 69 days in all in the year 1984-85 as Daily Wager, has held that as the workman has not completed 240 days in the preceding year of retrenchment, there is no breach of Section-25-F of the Industrial Disputes Act. However, considering the fact that new employees came to be appointed on 19.12.1995, the Labour Court has on appreciation of evidence held that there is breach of Section-25-G of the I.D.Act by not calling upon the workman for reemployment. This is finding of fact arrived at by the Labour Court on appreciation of evidence which is not required to be interfered by this Court in exercise of the powers under Articles 226 and 227 of the Constitution of India. Under the circumstances, finding given by the Labour Court that there is breach of Section-25-G of the I.D.Act, in my opinion, is not required to be disturbed and the same is not disturbed and is accordingly confirmed.
The next question is with regard to the contention raised on behalf of the management relying upon the judgment of the Division Bench of this Court in case of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD, 2003 (3) GLR 2590 that for attracting and applicability of Section-25-G and 25-H of the I.D.Act, retrenchment covered by Section-25-F is must, is required to be considered by this Court. Firstly, it is required to be noted that in the said case, the said controversy was not directly involved and on facts, it was found that there was no retrenchment by the employer at all and the Division Bench was considering the same and has made the passing observations which reads as under :
?SApart from that, the attractability or the applicability of Sections-25-G and 25-H would be dependent on the emergence and existence of the condition precedent of retrenchment.??
The aforesaid observation seems to be concerning the facts of that case where it was found that there was no retrenchment at all by the employer. Therefore, contention of Shri Clerk, learned advocate for the management corporation that for applicability and attractability of Sections-25-G and 25-H, retrenchment covered by Section-25-F is must, is not correct and cannot be accepted. Even otherwise, as held by the Hon'ble Supreme Court of India in case of CENTRAL BANK OF INDIA (Supra), benefit of Section-25-H would not be confined to the category of the retrenched workmen covered by Section-25-F alone who have been in continuous service for not less than one year. It appears from the judgment and order passed by the Division Bench of this Court relied upon by Shri A.K.Clerk, learned advocate appearing on behalf of the management corporation, attention of the Division Bench was not drawn to the decision of the Hon'ble Supreme Court in case of CENTRAL BANK OF INDIA (Supra) and the Division Bench has not considered the said binding decision.
14. At this stage, the judgment of the Hon'ble Supreme Court in the case of GOVT OF A.P. V. B. SATYANARAYANA RAO, reported in (2000) 4 SCC 262 is required to be considered. While considering the rule of per incurim, the Hon'ble Supreme Court in the said decision in para-8 has held as under :
?SThe rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.??
There is one another decision of this Court also in case of BHARAT INDUSTRIES V. KHEMIBEN VALJIBHAI AND OTHERS, 1995(1) GLH (UJ) 6 where also, similar view is taken with regard to applicability of Section-25-G and 25-H to those employees irrespective of completion of 240 days and / or retrenchment as envisaged under Section-25-F of the I.D.Act. Considering the fact that the Division Bench of this Court in cited decision of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD, 2003 (3) GLR 2590 has not considered the decision of the Hon'ble Supreme Court in case of CENTRAL BANK OF INDIA (Supra) which is a superior court judgment, assuming that the same meaning is to be given to the judgment of the Division Bench in case of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD as suggested on behalf of the management, in that case also, considering the judgment of the Hon'ble Supreme Court, the same is not required to be considered treating it as per incuriam.??
This Court examined identical issue in case of Dhoraji Municipality versus Ishwarbhai Hirabhai Vaghela in Special Civil Application NO. 20592 of 2007 on 14.8.2007. Relevant question of law as discussed by this court in para 3 and 4 of the said judgment is reproduced as under:
?S3.The question is that burden upon whom to prove 240 days continuous service before the Labour Court. Earlier this question was examined by the Apex Court in various decisions. Thereafter, this question, in detailed has been examined by the Apex Court in the case of RM Yellatti vs. Asstt. Executive Engineer, reported in 2005(9) SCALE p. 139 = 2006(1) SCC 106. This aspect has been examined by this Court in detailed in Special Civil Application No. 15594 of 2007. Paras 10 & 11 of the said judgment are as under:
?S10.
Law on this subject has recently been examined by the apex court and decided that in such circumstances when the workman is not having any evidence to prove completion of 240 days continuous service within one year, then, in such circumstances, employer shall have to produce documentary evidence which are in possession of the employer and if the evidence of the workman has not been challenged by cross examining the workmen concerned, then labour court has right to believe the oral evidence of workman. In RM Yellatti versus Asstt.Executive Engineer, reported in 2005 (9)SCALE 139 = 2006 (1) SCC 106, this aspect has been examined by the apex court. It has been observed by the apex court in par 17, 18 and 19 as under:
?S17.
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 workmen 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 earner, 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 (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 ultimately would depend thereafter on 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 workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
18.
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 20/6/1994. This period is the period borne out the certificate (Ex. W1) issued by the former Asstt. Executive Engineer the evidence in rebuttal from the side of the management produce five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex. M4 and Ex. M5, which indicated that the workmen had worked for 43 days during the period 21/1/1994 to 20/2/1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour Court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstance, 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 7/6/2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workmen are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workmen was working in SD 1, Athani and Ex. 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 although Ex. W1 refers to the period 22/11/1988 to 20/6/1994, the workmen 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 judgment 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 workmen 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 (Ex.W1). In the circumstances, the Division Bench of the High Court had erred in interfering with the concurrent findings of fact.
19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earner, 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 terminations. 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 record 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 which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government.??
Recently, on 8th March, 2007, apex court has considered same issue in case of M/s. Sriram Industrial Enterprises Ltd. Versus Mahak Singh & Ors. reported in 2007 (3) Supreme Today page 553. In the said decision, the apex court has considered the decision in case of Range Forest Officer v. ST Hadimani reported in (2002) 3 SCC 25 and other all relevant decisions including the decision in case of Surendranagar District Panchayat versus Dahyabhai Amarsinh (2005) 8 SCC 750. In the said decision, the apex court has also considered the earlier three Judges decision of the apex court in case of RM Yellatty v. Assistant Executive Engineer (2006) 1 SCC 106. Ultimately, after considering all relevant decisions in respect of onus of proof, whom to prove 240 days continuous service and how to discharge such burden by the workman and presumption of non production of documents by the employer. Relevant observations made by the apex court in para 23 and 34 of the said decision are reproduced as under:
?S23. Regarding Mr. Desai's submission that this Court had consistently laid down that it is for the workmen to prove that they had worked for 240 days in a calendar year, Mr. Viswanathan submitted that this Court had in the case of R.M.Yellatty vs Assistant Executive Engineer, reported in (2006) 1 SCC 106, observed as under:
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 workmen 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 earner, 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 (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 ultimately would depend thereafter on 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 workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.'
34. Having correctly interpreted the provisions of Section 6N of the UP Act, the High Court rightly drew an adverse presumption for non-production 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 case of 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 workman had discharged their initial onus by production of the documents in their possession.?S Recently also, the Apex Court has considered that when 240 days continuous service is proved by the workman before the Labour Court, then, the reinstatement is confirmed by the Apex Court considering the fact that it is justified. (see JT 2007(7) SC 559) In view of the observations made by the Apex Court as referred to above, the Apex Court has considered the important aspect that though initial burden is upon employee to prove 240 days by leading proper evidence before the Labour Court not merely the affidavit or the deposition of the workman but he should have to produce some concrete evidence before the Labour Court. However, in case of RM Yellatti the Apex Court has considered the reverse situation which decision is given by Three Judges Bench where the Apex Court has considered that when the employer is not giving any documentary evidence to the workman from the day of appointment till the date of termination order and in between no identity card, no pay slip or wage slip or muster roll are supplied, then, on what basis ultimately the workman is able to prove 240 days continuous service.
In short, when workman is not having any documentary evidence with him because none of the document is supplied by the employer and in absence of such documents, how the workman will discharge the burden to prove 240 days continuous service. Therefore, in Sriram Industrial Enterprises Ltd. Vs. Mahak Singh & Ors., reported in 2007(3) SC Today 553, which decision is given by two Judges Bench relied upon earlier decision of RM Yellatty three Judges Bench, and observation is made to the effect that the decision of two Judges Bench in case of Range Forest Officer vs. ST Hadimani reported in (2002)3 SCC 25 is watered down by three Judges Bench in the case of RM Yellatty. Therefore, now, the question is examined in minor way. Before the Labour Court workman has proved that not a single document from the date of appointment till the order of termination is given to workman and same was not produced by the employer, then, oral evidence of workman is enough to discharge burden for 240 days continuous service. If employer challenge the oral evidence, then, burden upon the employer to produce the relevant record before the Labour Court against the oral evidence of workman. If that document is not produced though demanded by the workman and they were in possession of the employer, then, adverse interference is rightly drawn by Labour Court, and for that, the Labour Court has not committed any error which requires any interference by this Court while exercising the powers under Article 227 of the Constitution of India.
The Labour Court has rightly appreciated the oral evidence of both the parties and also considered the fact that petitioner having the documents in their possession and not produced before the Labour Court, the adverse inference has been rightly drawn and on that basis, 240 days of continuous service is proved by the workman on the basis of his oral evidence and Sec. 25 F of ID Act, 1949 is not complied with by the petitioner and it is not the case of the petitioner that it has been complied with, therefore, termination is ab initio void. The workman is deemed to be in service for all the purposes. This Court cannot act as appellate authority and also, in case, two views are possible, even though this Court cannot interfere with the finding of fact arrived at by the Labour Court.
In view of the above observations, when there is no apparent error on the face of record which warrants interference of this court while exercising powers under Article 227 of the Constitution of India. Hence, there is no substance in the present petitions, same are therefore dismissed.
(H.K. RATHOD, J.) Vyas Top