R.M. Yellatti vs The Asst. Executive Engineer on 7 November, 2005
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.