Forest Range Officer vs Dileep

The respondent approached the labour Commissioner, State of M.P. under Section 10(1) of I.D. Act. The petitioner filed a reply before the labour Court. The conciliation ended into the failure and vide order dated 25.03.2015 the labour Commissioner has referred the industrial dispute to the labour Court for adjudication. The terms of reference is reproduced below:-

"क्या श्री दिलीप पिता श्री नाथूलाल परमार के सेवानियोजक के मध्य नियुक्त एवं नियोक्ता के संबन्ध स्थापित थे? यदि हाॅ तो क्या सेवा नियोजक द्वारा सेवानियुक्त का सेवा पृथ्थकरण किया गया हैं ? यदि हाॅ तो सेवा नियुक्त का सेवा पृथकीकरण वैध एवं उचित हैं यदि नहीं तो सेवा नियुक्त किस सहायता का पात्र हैं तथा नियोजक को इस सम्बन्ध में क्या निर्देश दिये जाने चाहिए?"

After the aforesaid reference, the labour Court registered the case and issued notice to the parties for filing statement of claims.

The respondent filed the statement of claim by submitting that he was engaged as Gardner/labour on 01.05.2015 in the High Tech Nursery of Forest Department. He worked with the satisfaction of the petitioner and he was paid Rs.6,000/- per month as wages. All of a sudden, vide oral order, his services has been terminated on 01.07.2016. Since worked 240 days in one calendar year therefore, his services could not have been retrenched without payment of compensation. The employer did not follow the principle of last come and first go. The daily rated employees engaged by department after him are still continuing. Hence, he is entitled for relief of reinstatement into the service with full back wages.

The petitioner filed the reply denying the employer employee relationship. The petitioner also raise preliminary objection that the State of Madhya Pradesh through forest department is a necessary party, therefore, the claims suffers from non-joiner of necessary party. The petitioner has specifically denied the appointment and termination of the petitioner and also denied about his 240 days continues working in the preceding year and the payment of Rs.6000/- per month as wages to the respondent.

In support of the claim the respondent examine himself as PW-1 but did not file any documentary evidence. The petitioner examine Daya Prasad Mishra, Range Forest Officer, Ujjain Rangeas DW-1 and got exhibited 3 documents as Ex.D/1, D/2 and D/3.

After appreciating the evidence came on record, the learned Labour Court has recorded the finding that the respondent was engaged as daily rated employee and worked 240 days in preceding year and his termination comes under the category of retrenchment and since the compensation was not paid to him, he is entitle for reinstatement, however, the labour court has denied the back wages to him. Vide award dated 14.11.2017, the petitioner has been directed to reinstate the respondent into the service without back wages. Being aggrieved by the aforesaid award, the petitioner has filed the present petition before this Court.

Shri Manyank Purohit, learned Govt. Advocate appearing for the petitioner submits that the respondent has utterly failed to prove that he was engaged as daily rated employee and worked 240 days in one calendar year before retirement. He did not file any documentary evidence in respect of appointment and termination. He has not file any documents in respect of payment of wages. He ought to have examined co-employee to prove that he worked 240 days with the petitioner. Without any evidence, the labour Court has wrongly held that that there was employee employer relationship existed between petitioner and respondent and he worked 240 days in one calendar year. The findings are perverse and based on no evidence, hence, award is liable to be set aside.

Shri A.S. Rathore, learned counsel for the respondent has drawn attention of this Court to the evidence of DW-1 and Ex.D/2 which clearly establishes that respondent was engaged as daily rated employee and worked for more than 240 days. He further submits that despite order dated 29.05.2017, the petitioner did not produce the wage sheets and attendance register, therefore, adverse influence has rightly been drawn against the petitioner. The labour Court has rightly passed the award in favour of the petitioner. He further submits that scope of interference with the award of labour Court under Article 227 of the Constitution of India is limited. This Court can not decide the petition as an appellate Court. The re appreciation of evidence is not permissible. Hence, the petition is liable to be dismissed in view of the law laid down by the apex Court in the Case of Shalini Shyam Shetty vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329. Hence, the writ petition is liable to be dismissed.

I have heard the learned counsel for the parties and perused the record.

The respondent raised an industrial dispute that he was engaged as a daily rated employee in the High Tech Nursery on 01.05.2015 and he was paid Rs.6,000/- per month. He entered into the witness box and and he was cross-examined by the opponent. In para 8 of his statement, he stated that he was not given any appointment order in writing. His cousin brother who was already working in the forest department called and Kept him in the work place. He expired in the month of December, 2015. He further submits that he was paid the wages in cash on site by signing the register. His attendance used to be mark in muster, but he never demanded the muster role. It is clear from the face of evidence that appointment order was not issued and he is not having any documentary evidence in respect of his claim. He did not examine any co-employee in support of his claim. Except his oral evidence nothing has been produced by him. The petitioner examined Forest Range Officer, who specifically stated that there is no system of making payment to the daily rated employee in cash. The department is making payment through e-payment since 2015 and also taking the work through contractor and even the employees of contractor are being paid through e-payment.

The learned Court has placed heavy reliance over Ex.D/2 which is nothing but a reply to the notice submitted before the Assistant Labour Commissioner by the petitioner. In this reply, there is an admission to the effect that the respondent was engaged for nursery as daily rated employee according to the need of work and wages paid as per the rate fixed by the Collector. There is no admission that the respondent worked 240 days in a one calendar year. The burden lies on respondent/workmen to prove that he worked 240 days. Petitioner filed the Panchanama vide Ex.D/3 which is in respect of verification of cash book, muster register, pay slips etc. the period 01.05.2015 to 01.07.2016 but, the name of respondent was not found in those records. Therefore, this is the case of no evidence. The respondent has utterly failed to prove that he had worked 240 days in the preceding year. In absence of proof of continuous working of 240 days, he can not claim the benefit of 25(F), therefore, he is not entitled for reinstatement into the service.

This Court in case of Zonal Manager, UCO Bank Vs. General Secretary, reported in 2017(4) MPLJ 104 has set aside the award of the labour Court whereby directions for reinstatement with full back-wages was issued, only on the ground that burden was on the respondent workmen to establish that he has been working for more than 240 days before his retrenchment/termination. Relevant portion of the judgement is reproduced below:

"9. Trite it is that the burden of proof is on the workman and not on employer to prove that workman had worked for 240 days or more in year immediately preceding retrenchment.

In R.M. Yellatti vs Assistant Executive Engineer AIR 2006 SC 355, it is held :

"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 under Section 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 workmen 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 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 workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down 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.

In Range Forest Officer vs S.T. Hadimani AIR 2002 SC 1147, it is held that :

"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."

In M/s Essen Deinki v. Rajiv Kumar AIR 2003 SC 38, it is held that

"16. The proof of working for 240 days is stated to be on the employee in the event of any denial of such a factum

..".

In Surendranagar District Panchayat vs Dahyabhai Amarsinh AIR 2006 SC 110, it is held :-

"19. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non- compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."

In the case at hand, as it was a specific stand of the petitioner-management that the respondent-workman was never appointed against any post and has not continuously served the Bank upto 27.7.2002, burden was on the respondent-workman to have established that he had worked for more than 240 days in a year before his retrenchment/termination. However, having failed to establish, the CGIT fell into patent error in construing that the workman had worked for more than 240 days by drawing adverse inference.

In view whereof, the impugned Award cannot be given the stamp of approval as the working having not proved of working continuously for more than 240 days in

12 months preceding his alleged termination, provisions of Section 25F of 1947 Act are not attracted.

Consequently, impugned Award dated 12.5.2016 is set aside."

In view of the above, the award is set aside. Petition is allowed.

No order as to cost.