Bhullan Singh vs D.F.O. Forest Divisonlal Officer, Conservator Forest, Forest Range Officer

The petitioner has filed this petition against the award dated 31/03/2009. The appropriate Government referred the dispute for adjudication to the labour Court u/s 10 of the ID Act to the effect that whether termination of service of the petitioner was valid or not "? The petitioner in his statement of claim, before the labour Court, pleaded that he was engaged in the year 1988 as Cattle Guard/Tube well Operator. He had been working continuously up-to 30/07/2001 and vide oral order without conducting any inquiry and payment of retrenchment compensation, his services had been terminated. The petitioner further pleaded that the persons who were engaged subsequently to him, have been retained in service.

The respondents in their statement of claim, pleaded that the petitioner was engaged on daily wages basis in accordance with requirement of work. When there was no requirement of work, the petitioner was dis-engaged. The respondents denied the fact that the petitioner has worked more than 240 days in a calender year.

The petitioner in his evidence, deposed that he was engaged on 15/12/1988 as daily wager Cattle Guard/ Tube well Operator and he had been working continuously up-to 30/07/2001 at Nehru Smriti Van Chholana, Bhind and thereafter vide oral order, his services were terminated. He further deposed that his attendance was marked in the attendance register and payment was also made in accordance with the payment register. An identity card ( Ex.P/1) was also issued to him. Certificates in regard to continuous work of the petitioner, Ex.P/2, Ex.P/3 and Ex.P/4 were also issued. He further deposed that he submitted an application for production of record on 29/05/2006 which was allowed by the labour Court. In spite of order of Court, no record was produced.

On behalf of respondents, Mr. J. C. Shukla ( RW-1) who had been working as Ranger in his evidence, deposed that the petitioner was engaged on daily wage basis and he was paid the wages accordingly. The petitioner had not worked continuously. He denied the fact that the petitioner had been working continuously up-to 30/07/2001.

The petitioner filed an application for production of documents, wage register and attendance register. The labour Court vide order dated 19/07/2006, allowed the application and directed the respondents to produce the record. The labour Court further ordered that if the record is not available in the department then a certificate be produced to this effect. The respondents did not produce the record as ordered by the labour Court neither produced the certificate to the effect that the record was not available in the Department.

Ex.P/1 is the photocopy of Identify Card issued by the Conservator of Forest. It is mentioned in the document that the petitioner was engaged in the year 1988 and he had been working as Tube well Operator. Ex.P/2 is the certificate in which it has been mentioned that the petitioner had been working as Tub well Operator up-to 1995. Ex.P/4 is the application submitted by the petitioner being daily wager in which it has been mentioned that the petitioner was working since 1988 and his services were terminated w. e. f. 1st August, 2001.

It is an admitted fact that in spite of order of the labour Court, the respondents did not produce the record.

The Hon''ble Supreme Court in the case of Director, Fisheries Terminal Department Vrs. Bhikubhai Meghajibhai Chavda (2010) 1 SCC 47 after relying earlier judgment of Hon''ble Supreme Court in the case of R.M. Yellatti Vs. The Assistant Executive Engineer, has held that if a workman called upon the employer to produce before the Court the muster roll, wage register or attendance register, then the workman has discharged his burden to prove the fact that he had worked more than 240 days in a calender year. Now, the onus is on the management to discharge its burden. The relevant findings in the case of R. M. Yellati (supra) given by Hon''ble Supreme Court are as under:-

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 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.

In the present case, the petitioner discharged the burden. Apart from this, the petitioner in his oral evidence pleaded that he was engaged in 1988 and his services were terminated in 2001. The petitioner also filed photocopies of identity card (Ex.P/1) and certificate (Ex.P/2). The aforesaid documents have not been denied by the respondents.

On behalf of respondents, Mr. J. C. Shukla (RW 1) deposed that the petitioner was engaged in the event of availably of work on daily-wages basis. In our opinion, the evidence of witness of the respondent is not sufficient to discharge the burden.

The labour Court in the impugned award has also held that at the time of tendering evidence, in the year 2007 the petitioner was aged about 28 years and he was working since 1988, hence, he could have been engaged at the age of 8-9 years, which is illegal. In our opinion, on the basis of aforesaid statement, the claim of the petitioner for continuous working for more than 240 days in a calender year could not be turned down because even if the age of the petitioner be accepted as 28 years in 2007 then also the petitioner had worked near about four years at the time of termination of service. Thus, he had worked more than 240 days in a calender year. Hence, the findings of the labour Court that the petitioner failed to prove the fact that he had worked more than 240 days in a calender year before termination of service, are perverse.

In regard to grant of back wages, the petitioner was engaged on daily wages basis. Even though he had not worked for quite a long period. Hence, in our opinion, the petitioner is not entitled to back wages. However, he would be entitled to receive full wages from the date of impugned award dated 31/03/2009. Consequently, the petition of the petitioner is allowed and the impugned award dated 31/03/2009 (Annexure P/1) is hereby quashed. It is ordered that the petitioner shall be entitled to reinstatement without back wages but he would be entitled full wages from the date of impugned award dated 31/03/2009. The petition stands disposed of accordingly. No order as to costs.