T.S. Sivagnanam, J.@mdashThe Petitioner-Management has challenged the Award passed by the Labour Court Madurai in I.D. No. 121 of 2005, dated 10.1.2011. By the impugned Award, the Labour Court directed the Petitioner-Management to reinstate the Second Respondent with continuity of service and other benefits, but without back wages. The Respondent/Workman, raised an industrial dispute u/s 2A(2) of the Industrial Disputes Act (I.D. Act) to declare the oral Termination Order passed by the Management as illegal and to reinstate him, backwages, continuity of service and all other monetary benefits.
2. The case of the Workman, is that he joined the services of the Management as a Technician on 5.5.1996, and worked for over eight years without any blemish and he participated in all the training programmes, service campaigns conducted by the Management and he was paid Rs. 2860/- per month as salary, apart from increments and yearly bonus. It is stated that the Third Respondent herein is a sister concern of the Management and though the Workman received his monthly salary from the Management, the same was made to appear in the account books, as if, he was receiving salary from the Third Respondent. While so, on 7.9.2004, the Management orally informed the Workman, that his service has been terminated without disclosing any reason and the Management refused to disburse the bonus and increment for the year 2004, for which the Workman is entitled, as he worked for eight years. The case of the Workman is that he was an Employee under the Management and having worked continuously for eight years, his services could not be terminated in any manner done by the Management and the termination is illegal as the Petitioner-Management failed to comply with Section 25F of the I.D. Act.
3. The Management filed Counter Affidavit resisting the claim of the Workman by contending that there was no Master-Servant relationship and the Workman was never Employee of the Management and the Management being an incorporated Company, all appointments were made by issuing Appointment Letter in writing and the Workman has not produced any Appointment Letter to show that he was an Employee at any point of time. It was further stated that depending upon the exigency of work, the Management engages contractors and the Employees of such contractors participated in service campaigns and mere participation in such campaigns cannot be construed that the Workman was an Employee of the Management and such claim is illusory and based on surmises and conjectures. It is further stated that the Third Respondent herein was a Contractor providing man power to carry out certain service functions and other related works at its Coimbatore and Madurai office under the guidance of the local Employees and the Workman was one such contract Employee supplied by the Third Respondent and the other allegation that the salary was shown to be paid by the Third Respondent, is absolutely false. It is further stated that the Management is a reputed Company running operations through out India and they have adhered to all the laws and have run their business in ethical manner. It was further stated the averment that the Workman was orally informed of his termination is incredulous, as the question of any termination of service does not arise, as the Workman was never on the rolls of the Management as its Employee, who has come with a far fetched and strange allegation of oral termination. That the averment the Workman is entitled for regularisation and monetary benefits, is incorrect, denied as false. It is further stated that the Third Respondent herein was not made a party to the Conciliation proceedings by the Workman with some ulterior motive. It was reiterated that there is no privity of contract between the Workman and the Management and there is no evidence produced by the Workman.
4. The Third Respondent filed a Counter Statement contending that the Employee was uncertain about his Employer''s identity and the Employee must allege that there was a dispute between the Employee and the Employer and then only an industrial dispute could be raised and the Third Respondent is an unnecessary party to the Claim Petition. The Third Respondent further stated that there was no document in their custody and all claims are related only against the Management and they should be deleted from the proceedings.
5. Before the Labour Court the Workman examined himself as WW1 and nine documents were marked as Exhibits W1 to W9. On the side of the Management MW1 was examined and on the side of the Third Respondent MW2 was examined, however no documents were produced on the side of the Management. The Labour Court framed only one point for consideration whether the punishment imposed on the Workman is justified? The Labour Court observed it seems that the Workman has filed certain documents, which disclosed that the Workman is an Employee of the Management and he has completed 240 days and he entitled to get benefit of Section 25F of the I.D. Act and accordingly, passed an award of reinstatement with continuity of service, but without backwages.
6. Mr. P.K. Rajagopal, learned Counsel for the Petitioner-Management would contend that the award is illegal, perverse, beyond jurisdiction and against the settled principles of law. It is submitted that no valid reason was given by the Labour Court to establish that the Workman was employed by the Management and no issue was framed to decide as to whether the Workman was an Employee of the Management and the Labour Court erroneously shifted the burden of proof on the Management. Further, the learned Counsel referred to the findings of the Labour Court in Paragraph 9 of the Award and submitted that the Labour Court did not properly consider the documents and the Labour Court could not point out a specific document to prove that the Workman was an Employee under the Management. Further the Labour Court committed an error of law in stating that Section 25F of the I.D. Act was not complied with, when the Workman was not an Employee of the Management. Further, it is submitted when there is no shred of evidence to establish the claim of the Workman, the Labour Court committed serious error of law and fact in passing the Award. In support of his contentions, the learned Counsel placed reliance on the decision of the Hon''ble Supreme Court in
7. Mr. A. Jayarama Chandran, the learned Counsel appearing for the Second Respondent/Workman submitted that the Workman was appointed on 5.5.1996 and orally terminated on 7.9.2004 and he was an ordinary Technician and his salary was paid by obtaining his signature in vouchers and Pay Slip was not issued and the Workman was all along an Employee of the Management and the Management in order to deny the statutory benefits as shown in the records, as if, the Workman is on the rolls of the Third Respondent, who is the contractor supplying man power to the Management. It is further submitted that the Third Respondent was not impleaded at the time of raising the dispute, but only after counter was filed by the Management, they were made a party to the dispute. The learned Counsel laid emphasize on the stand taken by the Management before different forum and submitted that their plea is inconsistent. Before the Conciliation Officer, it was stated that the Workman was a total stranger, before the Labour Court, it was stated that he is an Employee under the Third Respondent contractor and the evidence of MW-1, is to the effect that the Employee took part in service campaigns and in the Affidavit filed in support of the Writ Petition, it was stated that the Workman worked in the Coimbatore Service Station. Further, the learned Counsel referred to the cross-examination of MW1 and submitted that no documents were produced by the Management and MW1 joined the service of the Management only in 2007 and he new nothing about the case. Further, the learned Counsel submitted that Exhibits W1, W2, W3 & W7 are very important documents, which should be taken into consideration and the award should be affirmed.
8. Mr. T. Ravichandran, the learned Counsel for the Third Respondent submitted that the Third Respondent was not a party before the Labour Officer and the Management has not produced any documents to show that there was a principal-contractor relationship between the Management and the Third Respondent and even in the cross-examination of MW-2, there was no suggestion made that the Third Respondent was a Contractor of the Management. Therefore, it is submitted that the Third Respondent is an unnecessary party and ought not to have been impleaded in the Claim Petition.
9. I have elaborately heard the learned Counsels appearing for the parties and carefully considered the submissions and material placed on record.
10. The Workman examined himself as WW1 and in the cross-examination, he has stated that he was appointed by Exide Industries Limited, which has its head office at Calcutta. Further, it has been stated that he has not produced any document to show that the Management or the Third Respondent has given him employment. It was further stated that he has produced a document to show that he has received the salary from the Third Respondent. The Workman further stated that he has not raised any dispute as against the Third Respondent before the Labour Officer and he has not sent any notice to the Third Respondent through the Labour Officer and he has not impleaded the Third Respondent as a party in the Conciliation Proceedings and the Management alone was a party. It is further stated that the Photographs marked as Exhibits W7 have been taken in Amarnath Batteries and they are the agent of Exide Industries and he has not produced any document to establish that stand. Further the Workman has admitted that he has not produced any documents to show that the Third Respondent herein is a sister concern of the Petitioner-Management. Further it has been stated that his photographs find place in Exhibit W1, which is a magazine published by Exide Industries, in which the photographs were found. In the further cross-examination, the Workman admitted that he has not given any specific explanation as to why the Third Respondent was not impleaded as a party before the Labour Officer. In the cross-examination, it has been stated that there is no proof to show that Exhibit W2 was served on the Workman and there is no proof to show that the Workman has initialed in the said record. Further the Workman has admitted that he did not mention anything about Exhibit W3, before the Labour Officer. Further, the Workman has admitted that he has not produced any document to show that the nature of business relationship between the Petitioner-Management and the Third Respondent. The Workman further admitted during pendency of the dispute, he is carrying on battery works. Nine documents were marked by the Workman and Exhibit W1 was a service magazine published by the Exide Industries and the Workman would state that in one of the photographs he finds place and therefore, it is a relevant record to prove his employment. Exhibit W2 is a set of eight photographs and the Workman would state that he is also present along with the service team and his photograph is seen. Exhibit W3 is a letter addressed by Branch Accountant of Exide, Coimbatore to Mr. J.S. Sankar, stating that a Demand Draft for Rs. 7400/- being the arrears amount to Sirpi Service Staff, is enclosed. In the list of names of staff in serial No. 4, the name Suresh has been mentioned and along with the said communication another annexure is found, which is shown as details of salary. Exhibit W4 is the receipt or certificate of posting; Exhibit W5 the legal notice; Exhibit W6 the reply filed by the Management before the Conciliation Officer; Exhibit W7, is a set of five photographs and it is the Workman contentions that he is present in all the five photographs and the company logo is found on his shirt. Therefore, based on these records, the Workman would contend that he is an Employee of the Petitioner-Management.
11. The Hon''ble Supreme Court in
29. The Tribunal, therefore, accepted that the Appellant had denied the Respondents'' claim as regards their continuous service.
30. In Range Forest Officer v. S.T. Hadimani (supra), it was stated:
3....In our opinion the Tribunal was not right in placing the onus on the Management without first determining on the basis of cogent evidence that the Respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the Appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an Affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a Workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the Workman. On this ground alone, the award is liable to be set aside.
(See also
31. In Siri Niwas (supra) this Court held:
13. The provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Industrial Tribunal to see that the Principles of Natural Justice are complied with. The burden of proof was on the Respondent-Workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. In terms of Section 25F of the Industrial Disputes Act, 1947, an order retrenching a Workman would not be effective unless the conditions precedent therefor are satisfied. Section 25F postulates the following conditions to be fulfilled by an Employer for effecting a valid retrenchment:
(i) one month''s notice in writing indicating the reasons for retrenchment or wages in lieu thereof;
(ii) payment of compensation equivalent to fifteen days'' average pay for every completed year of continuous service or any part thereof in excess of six months.
It was further observed:
14....As noticed hereinbefore, the burden of proof was on the Workman. From the award it does not appear that the Workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from Muster Rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not even examine any other witness in support of his case.
32. Yet again in Hariram (supra) it was opined:
10....We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the Respondent-Applicants.
33. Mr. Phadke placed strong reliance on H.D. Singh to contend that adverse inference was drawn therein for non-production of certain documents. H.D. Singh (supra) was rendered on its own facts. In that case, a SLP was entertained by this Court directly from the award passed by the Industrial Tribunal. Before this Court, both the parties filed Affidavits and several documents. The Workmen therein categorically disclosed the number of days they had worked in each year. In that case the name of the Workman was struck off as he had allegedly concealed his educational qualification; purportedly on the basis of a confidential Circular issued by the bank on 27.6.1976 to the effect that matriculates will not be retained in the list. As the Workman therein in reply to the letter of the Bank stated that he was not a matriculate in 1974 and he passed the examination only in 1975, he was not given any work even after July 1976 without issuing any written notice terminating his services. Holding that the Workman had been retrenched from service, as noticed hereinbefore, Affidavits of the parties were filed and, thus, some evidence had been adduced. The number of actual days worked by the Workman therein was also brought on record by the Respondent. The said decision, thus, having been rendered in the fact situation obtaining therein does not constitute a binding precedent.
12. Thus, as per the law laid down by the Hon''ble Supreme Court, the initial burden of proof is on the Workman. Therefore, the Workman had to establish that he was an Employee of Exide Industries and he has also to establish that he completed 240 days of service. Unless the Workman has established this burden cast upon him, the Labour Court would not be justified to inferring the Employer-Employee relationship. The facts of the case have been set out in detail in the preceding paragraphs as well as the findings recorded by the Labour Court. The Labour Court without first satisfying itself that the Workman had sufficiently proved the Employer-Employee relationship, erroneously shifted the onus on the Management without taking into consideration that it is for the Claimant/Workman to lead evidence and to show that he has worked with Exide Industries and completed 240 days. The documents produced by the Workman has been mentioned above. None of the documents show any proof of employment, the Workman can hardly rest his claim based on photographs in which he was wearing clothes with the logo of the Petitioner-Management. These documents could not have been taken into consideration by the Labour Court to infer Employer-Employee relationship between the Petitioner-Management and the Workman. Exhibit W3, if taken to be valid piece of evidence will work against the case of the Workman, where it mentioned that a Demand Draft is sent for arrears amount to Sirpi Service Staff. Therefore, the Exhibit W-3 does not in any manner advance the case of the Workman.
13. It is true that the Management did not produce any document in support of its stand, if such be the case, whether adverse inference could be drawn and whether it can be held that the Workman was an Employee of the Management. This was considered by the Hon''ble Supreme Court in the aforementioned decision, and it has been held that merely because the appellant therein failed to prove their plea of abandonment of service by the Respondent, the same in law cannot be taken to be a circumstance that the Respondent have proved their case.
14. In a recent decision of Hon''ble Mr. Justice K. Chandru, in W.P. 5528 of 2009 dated 30.1.2012, while considering the question whether regarding burden of proof, held that the burden was on the Workman to show that he has worked for more than 240 days in the preceding one year prior to his alleged retrenchment. The operative portion of the order reads as hereunder:
6. On the question of the burden of proof in proving the service of a person who had worked with the Employer for specified number of days, the Supreme Court vide its judgment in
4. In a large number of cases the position of law relating to the onus to be discharged has been delineated. In Range Forest Officer v. S.T. Hadimani, it was held as follows: (SCC p.26, paras 2-3)
2. In the instant case, dispute was referred to the Labour Court that the Respondent had worked for 240 days and his service had been terminated without paying him any Retrenchment Compensation. The Appellant herein did not accept this and contended that the Respondent had not worked for 240 days. The Tribunal vide its Award dated 10.8.1998 came to the conclusion that the service had been terminated without giving Retrenchment Compensation. In arriving at the conclusion that the Respondent had worked for 240 days, the Tribunal stated that the burden was on the Management to show that there was justification in termination of the service and that the Affidavit of the Workman was sufficient to prove that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar, In our opinion the Tribunal was not right in placing the Onus on the Management without first determining on the basis of cogent evidence that the Respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the Appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an Affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a Workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the Workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the Respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today.
The said decision was followed in Essen Deinki v. Rajiv Kumar.
5. In Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, the position was again reiterated in Para 6 as follows: (SCC p.163)
6. It was the case of the Workman that he had worked for more than 240 days in the year concerned. This claim was denied by the Appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an Affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the Workman had worked for 240 days as claimed.
6. In Municipal Corpn., Faridabad v. Siri Niwas, it was held that the burden was on the Workman to show that he was working for more than 240 days in the preceding one year prior to his alleged retrenchment. In M.P. Electricity Board v. Hariram, the position was again reiterated in Para 11 as follows: (SCC p.250)
11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in Municipal Corpn., Faridabad v. Siri Niwas, wherein this Court disagreed with the High Court''s view of drawing an adverse inference in regard to the non-production of certain relevant documents. This is what this Court had to say in that regard: (SCC p.198, para 15)
15. A Court of law even in a case where provisions of the 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 his contentions. The matter, however, would be different where despite direction by a Court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the Respondent.
7. In Manager, Reserve Bank of India v. S. Mani, a Three-Judge Bench of this Court again considered the matter and held that the initial burden of proof was on the Workman to show that he had completed 240 days of service. The Tribunal''s view that the burden was on the Employer was held to be erroneous. In Batala Coop. Sugar Mills Ltd. v. Sowaran Singh, it was held as follows: (SCC pp. 484-85, para 13)
13. So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officer v. S.T. Hadimani, the onus is on the Workman.
The position was also examined in detail in Surendranagar District Panchayat v. Dahyabhai Amarsingh, and the views expressed in Range Forest Officer, Siri Niwas, and M.P. Electricity Board, cases were reiterated.
8. In R.M. Yellatti v. Asstt. Executive Engineer, the decisions referred to above were noted and it was held as follows: (SCC p.116, para 17)
17. Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s 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 Workman 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 earners, 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 (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 or termination, if any, the Wage Register, the Attendance Register, etc. Drawing of adverse inference ultimately would depend thereafter on the 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-Workman will not be the ground for the Tribunal to draw an adverse inference against the Management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 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 the facts of each case.
The above position was again reiterated in a recent judgment in ONGC Ltd. v. Shyamal Chandra Bhowmik.
7. In the light of the above, the impugned Award cannot be found fault with. There are no merits in the case filed by the Petitioner. Hence, the Writ Petition will stand dismissed. No costs.
15. Coming back to the impugned Award, it is seen that the Labour Court did not conduct any exercise to examine the effect of the documents produced by the Workman, rather gave a curious finding that "it seems that the Workman has filed certain documents". This finding is perverse. The further finding of the Labour Court that "it is not in dispute" that the Workman completed 240 days is a factually wrong finding. In fact, it was a disputed question and at no point of time, the Management accepted that the Workman completed 240 days. Thus, the net result is Labour Court passed an erroneous Award without proper appreciation of the oral and documentary evidence and without addressing itself to the correct points, which are required to be decided in the dispute.
16. Hence, for all the above reasons, the impugned Award passed by the Labour Court being perverse and rendered without appreciation of the evidence available on record and without addressing the correct questions to be answered in the Claim Petition and erroneously, by shifting the burden on the Management and making vague and unsubstantiated observation in the award. For all the above reasons, the impugned Award deserves to be set aside and accordingly the Writ Petition is allowed and the impugned Award is set aside. No costs. Consequently, connected Miscellaneous Petitions are closed.
