Gujarat High Court
Principal, S.V. Doshi Girls High School ... vs Lilaben Somabhai Gadasa on 9 January, 2008
Author: H.K. Rathod
Bench: H.K. Rathod
ORDER H.K. Rathod, J.
1. Heard learned advocate Mr. Asim Pandya for HL Advocates on behalf of the petitioners.
2. In the present petition, the petitioners have challenged the award passed by the Labour Court, Amreli in Reference No. 31 of 2005 dated 4.12.2007 whereby the Labour Court has partly allowed the reference and set aside the termination order and granted reinstatement with continuity of service with 20% back wages of interim period with the cost of Rs. 1500/-.
3. Learned advocate Mr. Asim Pandya submitted that the Labour Court has committed gross error in deciding the award which is contrary to the decision of the Apex Court reported in 2006 (1) SCC 106. He submitted that respondent workman has not produced any documents to prove 240 days continuous service before the Labour Court. He also submitted that except the evidence of the workman, there is no other evidence from which 240 days is proved by the workman. The respondent workman has not called upon the petitioner to produce relevant documents for the relevant period during which she was working with the petitioner. So in absence of the demand made by the respondent workman, adverse inference drawn by the Labour Court which is contrary to law. He also submitted that her husband is working as a peon with the petitioner and that she was called upon by the petitioner as and when work is required. That four permanent post of peon in which all the persons are working and no post is available with the petitioner. She was not selected, therefore, she had filed the suit. But in the said suit also, she was not able to get the interim order. Therefore, with ulterior motive, she raised industrial dispute challenging the termination order. He also submitted that in absence of documentary evidence from the workman, mere oral evidence cannot be taken into account being a proof of completion of 240 days continuous service. He relied upon para. 17 of the Apex Court's decision in case of R.M. Yellattii as referred above. He also submitted that whatever the vouchers of the management, same were produced before Labour Court vide Exh.37. Except that there were no other vouchers available with the management. Therefore, according to his submissions, burden is upon the workman to prove 240 days continuous service and not upon the employer. The finding given by the Labour Court is that burden is upon the employer to disprove 240 days continuous service of the workman. Therefore, the Labour Court has committed gross error in coming to such conclusion which is contrary to the settled principles laid down by the Apex Court. He also submitted that without calling to the Management to produce the relevant documents, it is not a duty of the management to produce all the relevant documents. Therefore, the adverse inference drawn by the Labour Court is also contrary to the law as decided by the Apex Court. He also submitted that she was occasionally called by the management and not regularly appointed and no post is available and therefore, reinstatement is not possible and in such circumstances, the Labour Court should not have to grant reinstatement to the respondent workman. Except that, learned advocate Mr. Pandya has not made any submissions and not relied upon any other decision.
4. I have considered the submissions made by learned advocate Mr. Pandya and have also perused the award passed by the Labour Court, Amreli. I have also considered the statement of claim of the workman and written statement made by the petitioners, vouchers and certificates which are annexed to the petition by the petitioners.
5. In respect to the certificates produced by the workman before the Labour Court, learned advocate Mr. Pandya has submitted that it was not accepted and therefore, same cannot be relied upon by the Labour Court. After perusing the award in question, according to workman, she was in service from 1997 to 14.9.2005 as a peon with the petitioner Trust. She was appointed as peon in K.K. High School from 1997 to 2000 and thereafter, she was appointed from 2001 to 14.9.2005 in S.V. Doshi Girls School. The K.K. High School is run and managed by petitioner Trust which is not in dispute. The statement of claim was filed by the workman before the Labour Court and written statement was filed by the petitioner vide Exh. 10. Thereafter, certain documents produced by both the parties before the Labour Court and workman was examined before the labour Court vide Exh. 15 and thereafter, petitioner has examined two witnesses vide Exh.29 and Exh. 30. Thereafter, the Labour Court has considered, while framing the issue, whether the workman is entitled the reinstatement with back wages or not. The Labour Court has discussed the issue at page-12 relying upon the oral evidence of the workman that when she makes statement on oath that she remained in service and completed 240 days continuous service. It is not the case of the petitioners before the Labour Court that respondent workman has supplied appointment order, wage slip, identity card or muster card. The order of termination is also not in writing but it was oral termination. Meaning thereby that workman, who was engaged orally and terminated orally, in between not a single document has been supplied by the petitioner to the workman, so she can produce such evidence before the Labour Court to prove her case of completion of 240 days continuous service. In absence of aforesaid document, it is very difficult for the workman to prove 240 days continuous service except the deposition of the workman before the Labour Court. If the case of the petitioner before the Labour Court was that appointment order was issued, pay slip was given and if it is not produced by the workman, then the contention raised by learned advocate Mr. Pandya can be considered. But, admittedly no document was supplied by the petitioner to the workman and in absence of such document, how the workman can prove 240 days continuous service, except on oath self statement made by the workman. A moment a legal evidence led by the workman against the petitioner then it is a burden shifted from workman to employer to disprove the claim of the workman. Initially burden is upon the workman to prove continue service of 240 days but that has been discharged by making self statement on oath and then, burden is shifted or onus is shifted upon the employer to disprove the legal evidence of the workman by producing relevant documents or by producing the oral evidence. In such circumstances, 10 vouchers were produced vide Exh. 37 by the petitioner before the Labour Court. That was covered only November, 2003 one voucher, January, 2004 one voucher and 2005 7 vouchers. But oral evidence of the workman was made it clear that she was remained in service from 1997 to 2005 then why management has not produced all the relevant vouchers for the entire period, for that no explanation is given by the management before the labour Court. The question of allegation not made by the workman against the petitioner that they have suppressed the material. Not necessary to make such allegation. The adverse inference is enough to draw against the employer in such circumstances. There is no need to make allegation by the workman because onus is already shifted by the employer to disprove the claim of workman which has not been discharged by the petitioner by producing proper evidence before the Labour Court. In that circumstances, adverse inference rightly drawn by the Labour Court against the petitioner. For that, according to my opinion, the Labour Court has not committed any error which requires interference by this Court.
6. Para.17 which has been relied by learned advocate Mr. Pandya in case of R.M. Yellattii as referred above which suggests that workman shall have to produce some documentary evidence in support of his oral evidence. But, that aspect has been made clear in the same decision in Para.18 and 19 that when employer has not provided any document to the workman from the date of joining to date of termination then which document can be produced by the workman before the Labour Court in support of his oral evidence. I fail to understand the submissions made by learned advocate Mr. Pandya. The ratio is that the workman in possession of any document he should have to produce it. But if the workman is not having any document which has not been supplied, question of production of document by the workman in support of his oral evidence does not arise. Para. 18 and 19 of the R.M. Yellattii decision as referred above are very relevant. Subsequently and recently the case of R.M. Yellattii has been considered by the Apex Court in case of Sriram Industrial Enterprises Ltd. v. Mahak Singh and Ors. reported in 2007 (3) Supreme Today 553. Relevant discussion is in Para. 30, 31, 32, 33 and 34 which is quoted as under:
30. As pointed out by Mr. Viswanthan, the exclusion of the word "preceding" from Section 2(g) of the U.P. Act indicates that a workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service. In fact, such an interpretation has already been given by this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. (supra). The case made out by the respondents before the Tribunal was also on the same lines in the Adjudication cases filed before the labour court, where the respondents had made out a case that they had never worked as temporary hands but had worked continuously from 26th February, 1991 to 31st January, 1995 without break.
31. 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.
32. 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.
33. 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 6N read with Section 2(g) of the U.P. Act which is applicable to these petitions.
34. Having correctly interpreted the provisions of Section 6N of the U.P. 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 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.
7. The contention raised by learned advocate Mr. Pandya that mala fide against the respondent workman cannot be accepted simply on the ground that merely respondent workman has approached the civil court against the selection process and thereafter, challenged the termination before the Labour Court and her husband is working with the Institution in the post of Peon, inference cannot be drawn of mala fide. The allegation of mala fide requires strict proof which has not been placed on record by the petitioners. To recourse to the legal remedy by the respondent workman against the action of the petitioners cannot consider to be a mala fide because same is not like to the petitioners. In respect to contention of continuous service, question of 240 days raised by the petitioners before the Labour Court as required under Section 25B(2) of the Act. But definition of continuous service is given in Section 25B of the Act having the deeming fiction of completion of one year service, if workman has completed 240 days within 12 months period. But Sub-section provides that if any workman remained in service for entire year and in between there is no termination and if the work is not given not due to fault on the part of the workman then, such service considered to be continuous as in between no termination order passed by the petitioner. Therefore, considering Section 25B(1) of the Act, the respondent workman remained in service from 1997 to 2005 and in between, her service was not terminated by the petitioners. The service if interrupted not due to fault of the workman, then such service is considered continuous service within the meaning of Section 25B of the I.D. Act, 1947. As and when work was available, the work was given to the workman. Looking to the certificates produced by the respondent, the working days are almost more than 15 to 18 in each month. Therefore, she remained in service and her service was not discontinued between 1997 to 2005 and if she was not entrusted the work by the petitioner which was not due to fault on the part of respondent workman. Therefore, if one year continuous service within the meaning of Section 25(B)(1) of the Act is satisfied then also Section 25F of the Act is to be required to be followed. On that occasion, completion of 240 days continuous service in a year not necessary. That view has been taken by this Court in case of Moti Ceramics Industries v. Jivuben Rupabhai reported in 2000 I CLR 156. Relevant observations are in Para. 10, 12 and 13 are quoted as under:
10. In view of the above provisions, it is clear that Sub-section (1) of Section 25B of the Act provides that the workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service. Continuous service would be interrupted only by two modes and that is by workman leaving the employment or employer terminating his service by dismissal or discharge. Mere absence of the workman without obtaining prior leave for a days would not put an end to the continuous service of a workman. Sub-section (2) opens with the words "where a workman is in continuous service within the meaning of Sub-clause (1)" and these words unmistakably indicate that the legislature has desire and intention to cover the cause even of those workmen who were not in continuous service for the purpose of retrenchment. Mere fact that the workman had not worked for 240 days in some year/s during his long employment would not debar him from claiming entire amount of retrenchment compensation as provided under Section 25F of the ID Act. Mere fact that during some years in his long period, the workmen had not worked for 240 days is not an answer to deprive him of the retrenchment compensation by ignoring the entire period. Once it is proved and/or found that the workman is in continuous service, then, it is wholly immaterial whether he has worked for particular number of days in a particular year. The contingency which demands the worker to work for a period of 240 days as provided by Sub-section (2) of Section 25B of the Act would come into play provided the workman is not in continuous service as required under Section 25B of the Act.
Both, on principles and on precedent, it must be held that Section 25B(2) provides a situation where the workman is not in employment for a period of 12 calender months but has rendered service for a period of 240 days within the period of 12 calender months and commencing and counting the back ward from the date of retrenchment, if he has, he would be deemed to be in service for the purpose of Section 25B and Chapter V-A and once it is found that the workman is in continuous service under Section 25B(1) of the Act and the workman is satisfying the conditions and contingency mentioned in the said Sub-section (1), then, it is wholly immaterial whether he has worked for a particular number of days in a particular year. Contingency which demands the worker to work for a period of 240 days as provided by Sub-section (2) of Section 25B would come into play provided the workman is not in continuous service as required under Section 25B(1) of the ID Act.
12. In a number of existing industrial establishment, both public and private, it has become a common tradition for employers to exploit the workmen on trivial grounds and thereby to adopt all sorts of unfair labour practices to terminate the services of such workman in the name of retrenchment and disciplinary action. Such victimized workmen are also mercilessly denied of their benefits for which they are otherwise entitled to inspite of existence of several constitutional and statutory safe guards for the protection of industrial workmen, there have been many of such cases where they are exploited. But the courts have been putting very much interest to do the socio economic justice with such victims and to protect their rights and interests. It is also required to be appreciated that the courts are creating new approaches for giving meaningful interpretation to the statutory provisions where the workman is claiming for the protection and benefits for which they are legally entitled to. It is also the anxiety of the court for strong and determined smooth exercise of legal wisdom to protect the interest of the workman to the possible extent within the frame work of statutory provisions. It is also required to have new approach to provide social justice to the victimized workman and to protect their interest against the evil practices of the employer. Therefore, it is necessary to have humanitarian approach while applying liberal construction to bring out exact meaning of the relevant statutory provisions which remove the injustice done to the industrial workmen by termination and the employer's denial to pay benefits to such workman for which they are legally entitled to under Section 25F of the ID Act on the ground that the workmen did not have continuous service of 240 days as contemplated under Section 25B of the ID Act.
13. Therefore, according to my view, if the workman is satisfying Sub-clause (1) of Section 25B of the ID Act, then, it is not necessary for the workman to satisfy the deeming provision which has been made under Sub-clause (2) of Section 25B of the ID Act. Therefore, considering these provisions of Section 25B of the ID Act, upon conjoint reading of Section 25B with Section 25F of the ID Act, it becomes clear that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer unless the employer has to satisfy condition precedent mentioned in Sub-clause (a) to (c) of Section 25F of the ID Act.
8. The contention raised by learned advocate Mr. Pandya that workman should have to demand from the employer to produce relevant record, otherwise in absence of demand, adverse inference cannot be drawn by the Labour Court. This contention cannot be accepted simply on the ground that it is a burden upon the employer to disprove the claim of the workman. If the workman has proved his case by oral evidence and his case was not correct according to record of the petitioner then, petitioner shall have to produce entire record before the Labour Court, otherwise adverse inference must have to be drawn against the employer as required under Section 114 of the Evidence Act, that has been rightly drawn by the Labour Court. For that, the Labour Court has not committed any error which requires interference by this Court.
9. Identical question was examined recently by this Court in SCA No. 17165 of 2006 dated 24.8.2006, relying upon the decision in the case of R.M. Yellattii, as referred above and in this case, no documentary evidence has been produced by the employer to disprove the claim of the workman and the award of the Labour Court has been confirmed by this Court. Against which SLP was preferred by the Surendranagar District Panchayat being SLP No. 1918 of 2007, which has been dismissed by the Supreme Court on 3.1.2008. Therefore, considering the aforesaid law as relied by learned advocate Mr. Pandya and also considering the recent decision of the Apex Court, according to my opinion, the Labour Court has rightly considered the oral evidence of the workman and also considering the certificates produced by the workman. In labour proceedings, strictly Evidence Act is not made applicable. Certain provisions are made applicable under Section 11 of the I.D. Act, 1947. If any document is produced by the party, if it is disputed by the other side then, other side must have to come out with the case that such document is not correct, bogus or not genuine. The certificate which has been produced on record with the petition page- 27 which is not disputed by the petitioner, even considering these 10 vouchers, working days considering each month more than 15 to 18 days. So the stand taken by the employer that as and when work required, she was called by the employer which is apparently not found to be correct. It is also necessary to note on important aspect that two witnesses were examined by the petitioner before the Labour Court. None of the witnesses has made clear before the Labour Court that she was not remained in service from 1997 to 2005. Two persons were examined and both have not any personal information or knowledge in respect to the appointment, working and termination of the concerned workman. So their evidence is also not reliable and rightly not relied by the Labour Court and accordingly, the Labour Court has rightly believed the case of the workman and considering evidence of the workman which has not been disproved by the petitioner, granted the relief.
9.1 The Division Bench of this Court has considered the question of burden upon whom and how it to be discharged in case of Superintendent Engineer v. R. Chhanabhai Nathabhai in LPA No. 202 of 2005 decided on 4.3.2005 after taking into consideration the decision of the Apex Court in the case of M.P. Electricity Board v. Hariram reported in (2004) 8 SCC 246. Relevant observations made in Para.9, 10 and 11 which are quoted as under:
9. In the matter of M.P. Electricity Board (supra), the Supreme Court has observed that the basic burden would be upon the workman. In the said matter, certain Muster Rolls were produced before the Court and some were kept back. On the basis of the Muster Rolls which were produced before the Court, the Supreme Court observed that the workman miserably failed to prove the fact that the work was for 240 days. The Supreme Court also observed that it was erroneous on the part of the Industrial Court and the High Court to draw an adverse inference on non-production of the Muster Rolls for some time.
10. The question of burden of proof would lose its importance when the question of onus of proof is taken up for consideration. In a given case, the basic burden may be upon a particular party and if the party does all what is required under the law, then the basic burden would stand discharged and the burden would be shifted upon the other side to disprove what has been said by the first party. It cannot be disputed nor can be argued that the official records are always available with the Department. A workman, if appears in the Court, enters the dock and makes a statement on oath that he had worked for 240 days in a year and the statement is not denied by the other side, or not controverted either, then the said statement can be taken to be correct. In the present matter, the workmen did work for 240 days and if that be so, the burden shifted and the burden was on the other side to disprove the allegations made by the workman. The best of the evidence would be the records which are regularly maintained by the Department. The Department cannot be allowed to say that even if the basic burden was discharged, they were not required to produce the records which they possessed. If the best evidence is kept back or is not produced in the Court, then the Court would be justified in drawing an adverse inference against the party which could produce the best evidence in the Court.
11. In the matter of M.P. Electricity Board (Supra), the Supreme Court was considering the case where the first Court which could draw an adverse inference did not draw any inference and it was in the appeal where the Industrial Court, for the first time, had drawn adverse inference and the said finding was approved by the High Court. In the present matter, when the Labour Court, after giving its anxious consideration to the facts of the case and the evidence available on record, has recorded a finding and the said finding is approved by the learned Single Judge, it would not be for the Letters Patent Court to interfere with the discretion exercised by the Labour Court and the finding which was approved by the learned Single Judge. We must observe that the Labour Court was absolutely justified in drawing an adverse inference against the interest of the appellant. We find no reason to interfere in the matter and the appeals are dismissed. Notice is discharged. There shall be no order as to costs.
10. The contention which has been raised by learned advocate Mr.Pandya that she was not regularly appointed; four persons are working against the permanent post and no vacancy is available. The Labour Court has granted reinstatement the respondent workman and there is no direction of granting permanency or regular benefit in favour of respondent workman. The reinstatement suggests to restore the original position. for that, petitioner must have to restore the original position. The Labour Court has rightly granted the back wages considering the object of the trust and also gainful employment not proved by the petitioner and having some presumption against the respondent workman that she may not remain without work during the entire period and therefore, the Labour Court has rightly granted 20% back wages of interim period. For that, Labour Court has not committed any error which requires interference by this Court while exercising the power under Article 227 of the Constitution of India.
11. The view taken by the Delhi High Court in case of Sushila Sharma v. Pawan Sharma reported in 2007 II LLJ 865. Relevant observations are made in Para.11 and 12 which are quoted as under:
11. The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is that a writ court exercises its powers of judicial review well within certain parameters. A series of judgments have been rendered by the Supreme Court in this context, as mentioned below:
(i) Sadhu Ram v. Delhi Transport Corporation.
(ii) Harbans Lal v. Jag Mohan .
(iii) Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. 1988 (supp.) SCC 768.
(iv) Ramniklal N.Butta and another v. State of Maharashtra and Ors. .
(v) Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr.
(vi) Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd. and Anr. .
12. All the above judgments, if read collectively, clearly indicate that the High Courts should not interfere with the awards of the Industrial Tribunal or the Labour Court on mere technicalities. Interference is permissible only if the order of the Subordinate Court suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient reason in law to arrive at a finding of fact contrary to those arrived at by the Subordinate Court is not the intent of exercising judicial review. It is only in cases where overwhelming public interest requires interference and cases of the nature where there is an error of jurisdiction or law as referred to hereinabove, should the court interfere, particularly in view of the fact that the object of enacting Industrial Disputes Act and of making a provision therein to refer disputes to tribunals for settlement, is to bring about industrial peace and in all such cases, an attempt should be made by the courts in exercise of their powers of judicial review, to sustain as far as possible, the awards made by the Industrial Tribunals and Labour Courts, instead of picking holes in the awards on rival points and frustrating the entire adjudication process.
12. Therefore, considering the law as discussed by this Court in the aforesaid petition and also in view of the facts of the present case, there is no substance in this petition and same is required to be dismissed. Accordingly, present petition is dismissed. See: (i) Gujarat Pollution Control Board v. Jagdish Nathabhai Chavada 2007 (3) GLH 356 and (ii) Management, Malaysian Airlines v. Presiding Officer, Principal Labour Court and Anr. 2007-III-LLJ 402.