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Showing contexts for: termination in Surendranagar District Panchayat vs Dahyabhai Amarsinh on 25 October, 2005Matching Fragments
JUDGMENT (Arising out of SLP) No.24805 of 2003) P.P. Naolekar, J.
Leave granted.
This appeal is directed against the Judgment of the Division Bench of the High Court confirming the order of the Single Judge and that of the Industrial Tribunal whereby the appellant was directed to reinstate the respondent. The brief facts of the case are that the services of the respondent was terminated by an order dated 15.8.1985. On 1.6.1992, i.e., nearly after 7 years the respondent sent a Demand Notice to the appellant and ultimately the dispute of termination of service of Respondent was referred to the Industrial Tribunal. The respondent filed a claim petition alleging therein that he was in service of the appellant for more than ten years at the wages of Rs.10/- per day till he had been terminated by an order dated 5.7.1985. It is alleged that before the order of termination was issued, provisions of the Industrial Disputes Act were not complied with. An application was moved before the Labour Court for direction to the employer-appellant to produce muster roll, salary register from the year 1976 to 1986. The appellant entered appearance and filed its counter alleging that the respondent himself stopped coming to work; that there was a gross delay of seven years in raising the dispute. The workman was never engaged permanently and he was employed for miscellaneous work i.e. whenever there was work, he was called for it. It is alleged that the workman had not completed 240 days of continuous service in the 12 months preceding the date of termination of his services. He had worked for 114 days in the year 1982, 63 days in 1983, 124 days in 1984 and 64 days in 1985 and thus there was no necessity for complying with legal requirement, before terminating the service of the respondent, of following the procedure laid down in Section 25F of the Industrial Disputes Act.
It is contended by the learned counsel for the appellant-Panchayat that the Supreme Court by its number of decisions has categorically held that the initial burden of proof that the workman has worked for 240 days in a year preceding the date of termination, lies on the workman and that the workman has failed to discharge that burden. It is further urged that it is not the case of the respondent- workman that he was in continuous service of the Panchayat for one year within the meaning of sub-section (1) of Section 25B of the Industrial Disputes Act. The case of the workman-respondent was that he had worked for 240 days with the employer in a year, therefore, necessarily the dispute raised by the workman, fall under sub-section (2) of Section 25B of the Industrial Disputes Act, to be regarded as his continuous service, wherein the workman had to prove that he had actually worked for 240 days during the period of 12 calendar months preceding the date of termination, to be retrenchment under Section 2(oo) of the Act. The non- production of the 10 years record by the employer does not call for drawing an adverse inference against the Panchayat. On the other hand, learned counsel for the respondent has urged that the employer being in possession of the relevant material, is duty bound to produce it and non-production of the record, called for by the Labour Court, the Labour Court was right in drawing an adverse inference. He further contended that the employer being in possession of the necessary material, burden lies on the employer to prove that the workman had not worked for 240 days in a year preceding the relevant period.
b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or bb) termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
c) termination of the service of a workman on the ground of continued ill-health;
In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non- compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved. As a result of the discussion above, the appeal is allowed. The orders passed by the Labour Court and the High Court are set aside. However, as a result of the order passed by the Labour Court, if the respondent was employed in service, the wages paid to him shall not be recovered. There shall be no order as to the cost.