@JUDGMENTTAG-ORDER
H.K. Rathod, J.@mdashHeard learned advocate Ms. P.J. Davawala for Petitioners.
2. In present petition, Petitioner-Regional Manager, Dena Bank has challenged award passed by Industrial Tribunal (Central), Bhavnagar, in Reference (ITC) No. 4/2009 (Old No. 4/1994), Exhibit 42, dated December 30, 2009, whereby, Industrial Tribunal (Central), Bhavnagar has set aside termination order dated December 14, 1992 and granted reinstatement with continuity of service with 50% back wages of interim period with cost of Rs. 1000/-.
3. Brief facts of the present case, according to Petitioner, are as under:
3.1 In the year 1980, Respondent workman started working with the Petitioner Bank as badli workman and was given work when regular persons are not there for work. In 1993, the present Respondent was given work as per the availability from 1980 to 1993 as a badli workman only and not completed 240 days in any year. There is nothing on record to suggest that workman had worked for 240 days in any single year. On December 15, 1992, it was alleged that Respondent was terminated on that day which was specifically denied by the Petitioner. The Petitioner stated that workman was badli workman and therefore, question of terminating his services does not arise. In 1994, present Respondent raised dispute and thereafter, referred to Industrial Tribunal as Ref. ITC No. 4/1994 which was thereafter, renumbered as Ref. ITC No. 4/2009. In 1998, as the Petitioner bank could not file reply and an ex parte order was passed and thereafter by filing Misc. Application the same was restored on February 8, 1999. The Petitioner bank filed a reply and opposed reference. In 2009, an award was passed on December 30, 2009 directing the present Petitioner to reinstate Respondent workman with 50% back wages within 30 days. In 2010, copy of an award was served on the Petitioner on May 19, 2010 and hence, present petition is filed by Petitioner bank challenging the legality and validity of an order passed by the Industrial Tribunal.
4. Learned advocate Ms. P.J. Davawala has raised contention before this Court challenging award in question that Respondent was Badli Kamdar, not completed 240 days continuous service in any of year and accordingly, written statement filed by Petitioner and certificate which has been relied (page-30) by Industrial Tribunal wherein working day of 185 mentioned between period 1979 to 1989. He was working as a Badli Sepoy in absence of permanent subordinate staff. This certificate is dated March 11, 1989. Therefore, she submitted that Industrial Tribunal (Central), Bhavnagar has committed gross error in relying upon aforesaid certificate. The payment of cost of Rs. 500/- which was required to be paid by Petitioner being a cost of setting aside ex parte award which was not paid but, according to her submission, in fact that amount was paid to workman by cheque in his name (Annexure-D, Page-31) dated February 27, 1999. She also submitted that these facts have been brought to the notice of the Regional Labour Commissioner, Central by letter dated April 5, 1999 (Annexure-E, Page-32). However, she fairly admitted before this Court that aforesaid both documents were not placed before Industrial Tribunal (Central), Bhavnagar. She also raised contentions in respect of last paragraph at page-24 where specific contention was raised by Petitioner that it is a burden upon employee to prove 240 days continuous service. Thereafter, that burden has been shifted upon the Petitioner. She submitted that relying upon aforesaid certificate, Industrial Tribunal (Central), Bhavnagar has wrongly come to conclusion that workman has completed continuous service of 240 days and same is proved by him. Therefore, according to her submission, relying upon aforesaid certificate (page-30) is misconceived by Industrial Tribunal. She submitted that in written statement (Annexure-A) month-wise and day-wise working days mentioned by Petitioner (Page-14 and 15) which has been ignored by Industrial Tribunal (Central), Bhavnagar. She also submitted that Respondent workman has not completed continuous service of 240 days in any year. In the year 1986, 14 days; in the year 1980, 2 days; in the year 1981, 26 days; in the year 1983, 18 days; in the year 1985, 1 day; in the year 1988, 68 days; in the year 1989, 95 days; in the year 1990, 82 days; in the year 1991, 101 days; in the year 1992, 183 days and in the year 1993, 1 day and in all, it comes to 591 days from 1980 to 1993. Therefore, Industrial Tribunal (Central), Bhavnagar has committed gross error in not considering days of working mentioned in written statement (Page 14 and 15). Relying upon Para 17 at Page-26 she submitted that this conclusion of Industrial Tribunal (Central), Bhavnagar is contrary to record. She further submitted that workman has not discharged burden for proving completion of 240 days continuous service before Industrial Tribunal (Central), Bhavnagar. Therefore, that onus cannot shift upon Petitioner. That finding is erroneous, required interference by this Court. She submitted that this conclusion not supported by any evidence and she relied upon Para 19 in respect to payment of cost. She also emphasized vehemently granting of 50% back wages by Industrial Tribunal (Central), Bhavnagar which is according to her submission on higher side. The badli workman is not entitled 50% back wages and badli workman has not discharged burden though written arguments also stated the same facts, which were not properly considered and appreciated by Industrial Tribunal (Central), Bhavnagar and junior was not remained continued, that fact is also not properly appreciated by Industrial Tribunal (Central), Bhavnagar. In short, her submission is that Industrial Tribunal (Central), Bhavnagar has committed gross error in deciding the reference and in granting relief in favour of Respondent workman. She relied upon decision of Apex Court in case of
5. I have considered submissions made by learned advocate Ms. P.J. Davawala and also perused the award in question. I have also considered the documents which are annexed to petition including written statement, cheque, letter as referred in her arguments. It is necessary to note that industrial dispute was raised by Respondent for adjudication on February 22, 1994. In support of dispute, Respondent workman has filed statement of claim vide Exhibit 4. According to Respondent workman, he was remained in service from 1979, receiving monthly salary of Rs. 1563/- till date of termination December 15, 1992.
6. According to workman, he has completed 240 days continuous service in each year and accordingly, salary was paid to him. But at the time of termination, Petitioner has not complied with provisions of Section 25F, 25G and 25H of the I.D. Act, 1947. Therefore, order of termination is required to be set aside and to grant relief in favour of workman. Initially, no reply was submitted by Petitioner before Industrial Tribunal. Therefore, ex parte order was passed by Industrial Tribunal (Central), Bhavnagar on June 29, 1998. Thereafter, Misc. Application was submitted by Petitioner establishment under Rule 26A of the Rules and after hearing both sides, Industrial Tribunal (Central), Bhavnagar has passed an order on February 8, 1999 setting aside ex parte award and restored the reference with a direction to Petitioner to file written statement immediately and to produce documents as early as possible with cost of Rs. 500/- to be paid by bank to Respondent workman. Thereafter, reference has been restored and Petitioner bank has filed written statement Exhibit 23 denying averments made in statement of claim and also pointed out working days of each year of the workman as referred above. Thereafter, vide Exhibit 29, notice has been served to Petitioner by Respondent workman. For that, affidavit has been filed by Respondent workman as referred in Para 6 of award. On behalf of Respondent workman, vide Exhibit 5 list, certain documents have been produced wherein vide Exhibit 8 demand notice given by workman to bank, vide Exhibit 9 reply was given by bank to Assistant Labour Commissioner, vide Exhibit 10, xerox copy of unemployment card was produced, vide Exhibit 11, certificate dated June 11, 1986 has been produced on record and vide Exhibit 12, certificate given on December 29, 1992 also produced. The workman was examined vide Exhibit 7. But it is important to note that evidence of the workman remained unchallenged because it has not been cross-examined by Petitioner''s advocate before Industrial Tribunal (Central), Bhavnagar and right to cross-examination of workman by Petitioner establishment has been closed because Petitioner remained absent on the date on which workman was examined before Industrial Tribunal (Central), Bhavnagar. So facts remained that whatever evidence given by workman remained unchallenged and not objected by Petitioner and in fact, there was no cross-examination at all. Therefore, statement made on oath by workman must have to be believed by Industrial Tribunal (Central), Bhavnagar and in that evidence, Respondent workman has made clear statement on oath that he has completed 240 days continuous service in each year and he was remained in service from 1979 to 1992 continuously.
7. On behalf of Petitioner establishment, vide Exhibit 41 written arguments have been submitted and certain decisions have been relied by Petitioner as referred in Para 8. On behalf of workman, Shri Pradeep Thakker was heard by Industrial Tribunal (Central), Bhavnagar. The Industrial Tribunal (Central), Bhavnagar has discussed the evidence and given reasons in support of its conclusion in Para 10 of award. The Industrial Tribunal (Central), Bhavnagar has relied upon certificate dated December 28, 1992 given by bank officer wherein workman was remained in service between 1979 to 1992. According to oral evidence of workman Exhibit 7, he has made clear statement on oath that he was remained continuously in service with Petitioner bank for the period from 1979 to 1992. But in spite of giving sufficient opportunity to Petitioner, no one remained present on behalf of Petitioner bank for cross-examining the workman concerned and accordingly, evidence of workman remained unchallenged and it has not been challenged by Petitioner bank, though on number of occasions opportunities were given by Industrial Tribunal (Central), Bhavnagar to Petitioner bank. It is also necessary to note that on behalf of Petitioner bank, no oral evidence led and no documentary evidence was produced by Petitioner bank. So facts remained that workman was not cross-examined by Petitioner bank. So evidence of workman must have to be accepted by Industrial Tribunal (Central), Bhavnagar and on behalf of Petitioner bank, no one was examined being a rebuttal evidence by Petitioner bank and no documentary evidence also produced by Petitioner bank before Industrial Tribunal (Central), Bhavnagar. Therefore, Industrial Tribunal (Central), Bhavnagar has considered Order 16 of Code of CPC and in case when evidence of the witness is not challenged by opposite party, thus adverse inference must have to be drawn against such opposite party. Therefore, Industrial Tribunal (Central), Bhavnagar has considered and believed entire evidence of workman at Exhibit 7 because there was no challenged to evidence of workman. In the Petitioner bank junior employees remained continued and service of workman was terminated by one officer Shri S.A. Ramani. Shri Tulsi Rathod and Mahesh, junior employees remained in service even after termination of Respondent workman. That junior employees have been recruited subsequent to termination of workman, even though Section 25H has not been followed by Petitioner bank. The Petitioner bank has not called the workman to report for work when fresh employees have been recruited by Petitioner bank. The Industrial Tribunal (Central), Bhavnagar has rightly come to conclusion that whatever contention raised in written statement by Petitioner, that must have to be proved by Petitioner bank while leading proper documentary evidence and oral evidence before Industrial Tribunal (Central), Bhavnagar. Therefore, pleadings cannot consider to be an evidence as per settled law and merely filing reply cannot consider to be an evidence of Petitioner bank and on that basis, except written statement and written arguments of Petitioner bank, no documentary evidence was produced on record and no oral evidence led by Petitioner bank. Therefore, Industrial Tribunal (Central), Bhavnagar has considered this legal aspect due to negligence of Petitioner bank''s advocate. In Para 12, Industrial Tribunal (Central), Bhavnagar has considered evidence on record and according to discussion made in Para 12, original reference has been restored with a condition to pay Rs. 500/- cost to the workman. But that amount was not paid by Petitioner bank to concerned employee and no details or documents produced by Petitioner bank to justify such payment by the Petitioner bank. Not only that, after restoring reference, the Petitioner bank remained absent. Except written arguments, nothing has been produced and participated in proceedings shown on record. Therefore, written statement and written arguments cannot consider to be an evidence unless it is proved by Petitioner bank leading proper oral and documentary evidence on record. Therefore, in light of this background, Industrial Tribunal (Central), Bhavnagar has considered that on January 28, 2003 by order it was directed to Petitioner to remain present on next date of hearing, otherwise matter shall be decided ex parte. Accordingly, notice was issued on January 31, 2003 to the Petitioner bank, even though no one remained present on behalf of Petitioner bank. The Industrial Tribunal (Central), Bhavnagar has called out the matter through peon on June 17, 2003 Exhibit 7 but, Petitioner was remained absent and its advocate also remained absent. Therefore, accordingly right to cross-examination has been closed. Thereafter, another notice was issued to Petitioner and in spite of receiving notice from Industrial Tribunal (Central), Bhavnagar, Petitioner bank has not remained present before Industrial Tribunal (Central), Bhavnagar. The notice issued by the Court with a specific condition that in case if Petitioner remains absent, then it is the liability and responsibility of Petitioner to establish it by appropriate evidence. In spite of receiving notice from Industrial Tribunal (Central), Bhavnagar, Petitioner bank has not remained present and no advocate is also remained present. Therefore, vide Exhibit 35 and Exhibit 36 application was made by workman to close right of cross-examination and oral evidence of Petitioner and whatever terms, award may be passed and published the same. The Industrial Tribunal (Central), Bhavnagar has considered that evidence of workman Exhibit 7, no cross-examination was carried out by Petitioner and except written statement Exhibit 23, nothing was brought on record by Petitioner being a rebuttal evidence against the evidence of workman.
7.1 In facts of this case, Petitioner has filed written statement raising number of contentions and written arguments but, not cross-examined the workman and not produced documentary evidence and led oral evidence in support of contentions raised in written statement and written arguments. In such circumstances, merely raising contentions in written statement is not enough but, it requires to be proved by proper evidence before Industrial Tribunal. A mixed question of law and facts must have to be proved by proper evidence, otherwise mere contention cannot consider to be a proof of such contentions. This aspect has been considered by this Court in case of State of Gujarat v. Valiben Savjibhai (2007) 3 GLH 2315 (Gujarat). Relevant observations are in Para 27 and 28 are quoted as under:
27. It has been pointed out by the learned AGP before this Court that the Petitioners have raised contention in written statement filed before the Labour Court that the Petitioner is not an industry and the industrial dispute has been raised by the workmen concerned after the delay of about fifteen years but the same was not at all considered by the labour Court while passing the award. From the perusal of the evidence led by the Petitioner before the labour Court, it appears that no evidence has been led by the Petitioner before the labour Court to prove the aforesaid contentions. Whether the Petitioner is an industry or not and whether the dispute was existing or surviving in view of the delay on the part of the workmen concerned in raising of an industrial dispute? All these are mixed questions of law which are required to be pressed into service by the party raising such contentions after they are raised by it in its written statement before the labour Court. Number of contentions can be raised by the party in its written statement or in the memo of petition and after such contentions are raised, same are required to be pressed into service and evidence in support of such contention is required to be produced before the labour Court to examine such contention. Here, in the cases before hand, after raising such contentions in the written statement, Petitioner has not proved the same by producing evidence before the labour Court and such contentions were not substantiated by the Petitioner before the labour Court. Therefore, merely, raising of contention in its written statement is not enough but the same should have to be substantiated and proved by cogent evidence before the labour Court which has not been done by the Petitioner before the labour Court. Court should have to consider the observations made by the labour Court and not to consider the submissions made by the learned AGP before this Court. No affidavit has been filed by the Petitioner of an advocate who was appearing before the labour Court to substantiate the contentions that these points were raised, pressed into service and necessary evidence were produced by Petitioner before the labour Court to substantiate these mixed question of law and fact. Whether the dispute was existing or not in view of such delay or not is a question which would require evidence. It is not the case of the Petitioner before this Court that such evidence produced by the Petitioner was not considered by the labour Court and that it was ignored by the labour Court. Therefore, in such circumstances, this Court should have to rely upon the observations made by the labour Court and not to rely upon the submissions made by the learned AGP for the Petitioner. In
4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the Respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we can not launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not upon to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation. (Per LORD ATKISON in Somasundaran v. Subramanian AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (per LORD BUCKMASTER in Madhusudan v. Chandrabati AIR 1917 PC 30). That is the only way to have the record corrected. If no such steps is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
4-A. In R. v. Mellor (1858) 7 CCC 454 MARTIN B was reported to have said: We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity.
5. In
..... these proceedings emphasis the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version.
6. In
It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge, without delay and ask for rectification or review of the judgment.
7. So the Judges'' record is conclusive. Neither Lawyer not litigant may claim to contradict it, except before the Judge, himself, but nowhere else.
Similarly, in the matter of
13. The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but later, confine themselves in the course of arguments to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw attention of the Court making the order to it by filling a proper application for review or clarification. The time of the superior Courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment o the subordinate Court was argued before that Court or not.?
28. In view of the observations made by the Apex Court in aforesaid two decisions, applying the same to the facts of the present case, it becomes clear that except raising contention in its written statement by the Petitioner before the labour Court, no further process was carried out by the Petitioner before the labour Court. No evidence worth the name was produced by the Petitioner to prove said two mixed questions of law and facts and in view of that, now Petitioner cannot be permitted to press into service such contentions and now Petitioner therefore can not raise any grievance against the labour Court that the labour Court has not considered said contentions and award in question cannot be held to be bad in law on that ground. Therefore, those contentions raised by the learned AGP before this Court are rejected.
8. That no documents have been produced by Petitioner bank in respect to working days as mentioned in written statement before Industrial Tribunal (Central), Bhavnagar. Merely making averment in the written statement is not enough but, that fact must have to be proved by Petitioner bank while leading proper evidence before Industrial Tribunal (Central), Bhavnagar. But that aspect has not been proved by Petitioner before Industrial Tribunal (Central), Bhavnagar. The initial burden is upon workman to prove the completion of 240 days continuous service. That burden has been discharged by workman as per oral evidence Exhibit 7 and according to his evidence, he was remained in service continuously completed 240 days in a year but, in between no termination from January 1, 1979 to December 14, 1992. This certificate is dated December 29, 1992 is not produced by Petitioner bank along with petition but, certificate dated March 11, 1989 has been produced which has not been relied by workman. Therefore, workman was remained in service continuously from January 1, 1979 to December 14, 1992 and had worked as Badli Sepoy satisfactorily. Accordingly, certificate was issued and Industrial Tribunal (Central), Bhavnagar has rightly relied upon oral evidence of workman at Exhibit 7 and certificate given by Petitioner bank. The Respondent has made statement on oath that Shri S.A. Ramani, Officer has terminated his service by order dated December 14, 1992, his presence marked in presence register and pay was paid by voucher after obtaining his signature and service of workman was terminated on December 14, 1992 but, no retrenchment compensation was paid to workman. Shri Tulsi Rathod and Shri Maheshbhai both were re-engaged after termination of workman in original post and paying salary to these workmen, even though Petitioner bank has not recalled the service of Respondent workman and juniors to Respondent workman are in service. Therefore, Industrial Tribunal (Central), Bhavnagar has rightly examined the matter on the basis of evidence and junior employees have been appointed in place of Respondent workman and in spite of fact that Respondent workman not recalled by Petitioner bank. The Industrial Tribunal (Central), Bhavnagar has relied upon decision of Apex Court in case of
17. 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 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 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 register etc. Drawing of adverse inference 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 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 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 November 22, 1988 to June 20, 1994. This period is the period borne out by the certificate (Exhibit W-1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NM Rs), out of which 3 NM Rs, Exhibit M-1, Exhibit M-2 and Exhibit M-3, did not even relate to the concerned period. The relevant NM Rs produced by the management were Exhibit M-4 and Exhibit M-5, which indicated that the workmen had worked for 43 days during the period January 21, 1994 to February 20, 1994 and March 21, 1994 to April 20, 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 (Exhibit W-1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstances, 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 June 7, 2000 in Writ Petition No. 17636/2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and Exhibit W-1 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 Exhibit W-1 refers to the period November 22, 1988 to June 20, 1994, the workman 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 workman 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 (Exhibit W-1). 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 earners, 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 termination. 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 records 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.
8.1 Recently, the Apex Court has examined identical question in respect to burden of proof in case of
13. The next contention of the learned Counsel for the Appellant is that the Respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the Respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the Respondent before the labour Court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.
14. Section 25B of the Act defines continuous service. In terms of Sub-section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The Respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the Respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This Court in the case of R.M. Yellatty v. Assistant Executive Engineer (supra), has observed:
However, applying general principles and on reading the aforesaid 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 up 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 of termination. There will also be no receipt of 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 of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case.
75. Applying the principles laid down in the above case by this Court, the evidence produced by the Appellants has not been consistent. The Appellants claim that the Respondent did not work for 240 days. The Respondent was a workman hired on a daily wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/Appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the Appellant that the services of the Respondent were terminated in 1988. The witness produced by the Appellant stated that the Respondent stopped coming to work from February, 1988. The documentary evidence produced by the Appellant is contradictory to this fact as it shows that the Respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The Appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour Court to produce the same. In fact there has been practically no challenge to the deposition of the Respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this Court in the case of
A Court of Law even in a case where provisions of the Indian 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 this contentions. The matter, however, would be different where despite direction by a Court the evidence is withheld.
16 It is not in dispute that the Respondents service was terminated without complying with the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The Section reads-
25-G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
The labour Court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the Respondent was continued after the Respondent was discharged from its duties. The dates of joining of some of the fellow employees of the Respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the Appellants. The Appellants have clearly failed to prove that the services of no junior employee was continued when the services of the Respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference.
9. The Bombay High Court has, in case of Appa Babaji Misal Patil and Ors. v. Dagdu Chandru Misal, since deceased by his heirs
Civil P.C. (5 of 1908), Order 6 Rule 2 Variance between pleading and proof Case of partition not specifically pleaded in plaint and no issue in that respect struck by Court Plaintiff deposing about existence of partition Held, pleadings would not be evidence and fact of partition cannot be ignored because it was not averred in pleadings.
10. The decision which has been relied by learned advocate Ms. Davawala is of two Judges bench of the Apex Court. However, aforesaid decision of Apex Court in case of R.M. Yellatti v. Assistant Executive Engineer (supra) delivered by three Judges bench. The principle which has been discussed by Apex Court which has been relied upon by learned advocate Ms. Davawala, has been re-considered by Apex Court in the decision of three Judges bench of Apex Court in case of R.M. Yellatti v. Assistant Executive Engineer (supra), as referred above. Therefore, it is necessary to note that it was not the case of Petitioner bank before Industrial Tribunal (Central), Bhavnagar that after engagement or appointment of Respondent workman as Badli Kamdar, he was given appointment order, pay slip, identity card and presence card. However, no documents were supplied by Petitioner to the concerned workman during period of service rendered by Respondent workman and even no documents have been produced by Petitioner bank before Industrial Tribunal (Central), Bhavnagar in establishing facts which are narrated in written statement. Therefore, Industrial Tribunal (Central), Bhavnagar after relying upon the decision in case of R.M. Yellatti v. Assistant Executive Engineer (supra) and considering oral evidence of workman as discussed in Para 17 that workman has established continuous service of 240 days on the basis of oral evidence and certificate produced by Respondent workman before Industrial Tribunal (Central), Bhavnagar. Thereafter, onus or burden is shifted upon bank to produce rebuttal evidence against oral evidence of workman and also to produce documentary evidence against evidence of Respondent workman. Shir Tulsi and Maheshbhai both are remained in service as per evidence of workman but, that fact has not been challenged or disputed by Petitioner bank. Therefore, Industrial Tribunal (Central), Bhavnagar has not relied upon mere certificate but, Industrial Tribunal (Central), Bhavnagar has also relied upon oral evidence of workman Exhibit 7 which remained unchallenged because no cross-examination has been carried out by Petitioner bank of the evidence of workman. Therefore, his evidence remained unchallenged. The Respondent workman being a badli sepoy is covered by definition of ''workman'' u/s 2(s) of the I.D. Act, 1947. The decision which has been relied by Petitioner bank before Industrial Tribunal, Bhavnagar (2009) 2 SCC 275 is not applicable to facts of this case as well as other decision
11. It is necessary to note one important aspect which I fail to understand the submission made by learned advocate Ms. Davawala, knowing fully well that there was no cross-examination of workman by Petitioner bank, no documentary evidence produced on record by Petitioner bank, no rebuttal evidence of any kind produced before Industrial Tribunal (Central), Bhavnagar by Petitioner bank, no documents for payment of cost of Rs. 500/-produced by Petitioner bank before Industrial Tribunal (Central), Bhavnagar, in spite of fact, making submission relying upon mere written statement and written argument Exhibit 41, such arguments cannot be accepted simply on the ground that such arguments have been made without any evidence produced by Petitioner bank before Industrial Tribunal (Central), Bhavnagar. Therefore, contentions which are raised by learned advocate Ms. Davawala are contrary to record and in support of that, there was no positive oral evidence on record produced by Petitioner bank and there was no positive documentary evidence produced by Petitioner bank in support of their defence before Industrial Tribunal (Central), Bhavnagar. Therefore, decision which has been relied by learned advocate Ms. Davawala cannot be accepted because it applies on the basis of facts proved by respective parties before concerned Tribunal. A moment workman has given evidence Exhibit 7 and made statement on oath that he has completed 240 days continuous service in each year and remained in service from 1979 to 1992, against which no cross-examination and no rebuttal evidence produced by Petitioner bank, then where is the question that workman has not discharged his burden proving continuous service of 240 days arise. The workman has established the facts of completion of 240 days continuous service by his oral evidence in support of certificate and Section 25F has been violated by Petitioner bank and it is not the case of Petitioner bank that Section 25F has been complied with. In such circumstances, when Section 25F has been violated, workman is entitled the relief of reinstatement as a matter of right because it was not the case of Petitioner bank that no work is available and reinstatement is not possible. For that also, no evidence has been led before Industrial Tribunal (Central), Bhavnagar and no documents have been produced by Petitioner bank before Industrial Tribunal (Central), Bhavnagar. Therefore, in such circumstances, decision of Allahabad High Court in case of
8. I have carefully considered the submissions made by the learned Counsel for the parties and perused the record.
The provisions of Section 6N of the Act are pari materia with the provision of Section 25F of the Industrial Disputes Act, 1947. The various decisions rendered with reference to Section 25F shall be applicable to the present case which is governed by Section 6-N of the Act also. In
9. In the case of State of U.P. v. Putti Lal and Anr. 2003 IV LLJ 820 (All-NOC) this Court held that the termination of services of a workman, who has worked for more than 240 days in the preceding/calendar year, without complying with the provisions of Section 6-N of the U.P. Industrial Disputes Act is illegal and unjustified.
10. This Court again/held in the case of State of U.P. v. Presiding Officer, Labour Court, U.P. Gorakhpur and Anr. (2007) 3 UPLBEC 2756 that non-observance of Section 6-N of the Act prior to retrenchment renders the retrenchment totally unsustainable at law.
11. The unreported judgment of this Court dated September 4, 1998 given in Hira Lal v. Labour Court., U.P. Lucknow and Anr. Writ Petition No. 3739/1984 Relied upon by the Petitioner applies with full force to the facts and circumstances of the present case.
12. On the strength of the above decisions the learned Counsel for the Petitioner urged that the impugned order of termination of the services of the Petitioner was illegal and void ab intio as it was against the mandatory provisions of Section 6-N of the Act and that the Presiding Officer of the Labour Court was not justified in awarding the amount of compensation even though he had recorded a clear finding that the termination order was bad in law on account of non-compliance of the provisions of Section 6-N of the Act. The learned Counsel vehemently argued that the compensation is to be paid at the time of retrenchment and not subsequently. In support of his contention he placed reliance on the decision
13. Sri Masoodi, learned Counsel appearing for the opposite party No. 2 has failed to cite any decision to the contrary which may give strength to his submissions. After considering the entire case law cited on behalf of the Petitioner, I am of the view that the impugned order of termination of service of the Petitioner dated July 19, 1979 is nothing but an attempt to camouflage the order of retrenchment. The order of termination simpliciter in nature is virtually an order of retrenchment. A workman cannot be retrenched unless the requirements as mentioned in Section 6-N of the Act are complied with. Admittedly no compensation was paid to the Petitioner at the time of his retrenchment i.e. termination of his service although at the time, the service of the Petitioner were terminated, the Petitioner had admittedly worked continuously for more than four years in the Establishment. The Presiding Officer of the Labour Court also found the order of termination to be illegal and yet he made an order for payment of compensation in lieu of termination. The course adopted by the Presiding Officer of the Labour Court cannot be justified. It did not fall within his domain or jurisdiction to pass an order for payment of compensation in lieu of the retrenchment of the Petitioner. In view of the decisions referred to above, the Petitioner is entitled to reinstatement in service.
12. The Industrial Tribunal (Central), Bhavnagar has considered before granting 50% back wages of interim period, decision of Madras High Court in case of Jayraman P. v. Bharat Heavy Electrical Ltd., Trichi 2009 III LLJ 798 (NOC). Relevant observations of aforesaid decision considered by Industrial Tribunal is quoted as under (Headnote at p. 798):
As regards the claim for back wages, it is to be seen that the Labour Court has consciously exercised its jurisdiction in denying the back wages in its entirety. The manner in which back wages are viewed has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. As laid down by the Hon''ble Supreme Court in
It is necessary to note that certificate dated March 11, 1989 relied by learned advocate Ms. Davawala (Annexure-C, Page-30) where it was mentioned that workman had worked as Badli Sepoy in our office for 185 days between 1979 to 1989 in absence of permanent subordinate staff. This certificate was not produced by bank before Industrial Tribunal (Central), Bhavnagar. This certificate is not relied by Respondent workman and produced by him before Industrial Tribunal (Central), Bhavnagar. The workman has produced certificate dated December 29, 1992 wherein period from January 1, 1979 to December 14, 1992 is mentioned and this certificate is not wrong or incorrect or bogus because no dispute has been raised by Petitioner bank before Industrial Tribunal (Central), Bhavnagar to that effect. It was not the case of Petitioner bank before Industrial Tribunal (Central), Bhavnagar that this certificate is wrong and not issued by Petitioner bank. This certificate dated December 29, 1992 not produced by Petitioner bank along with present petition. Therefore, learned advocate Ms. Davawala has not made correct facts before this Court and mis-represented by producing documents at Page-30 which was not a part. As regards the claim for back wages, it is to be seen that the Labour Court has consciously exercised its jurisdiction in denying the back wages in its entirety. The manner in which back wages are viewed has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. As laid down by the Hon''ble Supreme Court in J. K. Synthetics Ltd. v. K.P. Agrawal and Anr. (supra), in cases of misconduct reinstatement back wages do not follow as a natural or necessary consequence of such reinstatement. Even if the Court finds it necessary to award back wages should be awarded fully or only partially, which depends upon the facts and circumstances of each case. In the case on hand, this aspect has been taken into consideration by the Labour Court which correctly denied the back wages taking into consideration the material evidence available on the leave particulars, record of Industrial Tribunal (Central), Bhavnagar. Therefore, contentions raised by learned advocate Ms. Davawala that certificate dated March 11, 1989 is not considered by Industrial Tribunal (Central), Bhavnagar, cannot be accepted because it was not on the record at all.
12.1 The decisions which are relied by learned advocate Ms. Davawala have been considered by this Court and considering the facts which are on record and proved by Respondent workman, the said decisions are not applicable to facts which proved on record. Not only that the decisions relied by Ms. Davawala has subsequently diluted by Apex Court in other decisions delivered by three Judges Bench of Apex Court in case of R.M. Yellatti v. Assistant Executive Engineer (supra) and said decision has been considered by Apex Court in case of Director of Fisheries Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda (supra) as discussed in present order as referred above. Merely relying upon any decision by advocate which are not applicable to the facts, naturally it cannot be helpful to the advocate of Petitioner. The advocate should know recent law on the subject and not to cite only decisions without considering recent decisions of Apex Court on the same subject. Therefore, decisions which are relied by learned advocate Ms. Davawala not applicable to prove the facts found on record.
13. The Industrial Tribunal (Central), Bhavnagar has rightly considered oral evidence of workman and also rightly considered that sincere efforts have not been made by workman to other places for getting the job. But his family has been maintained by his father. In light of this background and gainful employment is not proved by Petitioner bank, therefore, balance award has been passed granting 50% back wages with continuity of service and with consequential benefits. For that, Industrial Tribunal (Central), Bhavnagar is having discretionary powers and to grant back wages is always depend upon facts and circumstances of each case and there is no precise formula decided by Apex Court. Therefore, in light of this background, Industrial Tribunal (Central), Bhavnagar has rightly granted 50% back wages of interim period. Therefore, contentions raised by learned advocate Ms. P.J. Davawala that 50% back wages is on higher side, cannot be accepted. On the contrary, balance award is passed granting only 50% back wages of interim period, because reason is that termination order is dated December 15, 1992, workman was remained in service from 1979 to 1992, the industrial dispute raised and referred for adjudication on February 22, 1994 and that was decided ex parte in absence of Petitioner because Petitioner bank remained absent and ex parte award was passed on June 29, 1998, therefore, six years'' period because of lapse on part of Petitioner bank. Thereafter, reference has been restored on February 8, 1999. Therefore, in all valuable 7 years lost by workman because of lapse committed by Petitioner bank. Thereafter, matter remained pending before Industrial Tribunal (Central), Bhavnagar about 10 years, even though Petitioner bank remained negligent, not led any oral evidence before Industrial Tribunal (Central), Bhavnagar, not cross-examined the workman by Petitioner bank and not produced documentary evidence, even though such award has been challenged by Petitioner bank just to spent amount of public exchequer without any responsibility. The Petitioner bank being a schedule bank, answerable to the public for any amount if it is spent unnecessarily knowing fully well that it was a clear lapse on part of Petitioner bank in conducting case before Industrial Tribunal (Central), Bhavnagar. Therefore, according to my opinion, Industrial Tribunal (Central), Bhavnagar has rightly decided the reference and for that, Industrial Tribunal (Central), Bhavnagar has not committed any error which requires interference by this Court. The Industrial Tribunal (Central), Bhavnagar has rightly examined the issue based on record and finding and reasoning given by Industrial Tribunal (Central), Bhavnagar cannot consider to be baseless and perverse. The entire award is based upon facts and it was a clear case of fact finding given by Industrial Tribunal (Central), Bhavnagar, therefore, normally this Court cannot disturb such finding of fact while exercising power under Article 227 of the Constitution of India. (See: State of Haryana and Ors. v. Manoj Kumar (2010) 3 MLJ 1412 : AIR (2010) SCW 1990 and
14. In result, there is no substance in present petition. Accordingly, present petition is dismissed.
