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Judgment
Tejinder Singh Dhindsa, J.�The instant petition is directed against the award dated 9.6.2010, Annexure P4, passed by the Industrial Tribunal, Bathinda whereby the reference has been answered against the petitioner-workman and he has not been held entitled to any relief. The statement of claim appended on record at Annexure P1 would show that the petitioner had asserted to have worked as a Helper in excess of two years and his services were terminated w.e.f. 1.4.1997 without any notice, charge sheet, enquiry or compensation. However, the date of joining was not furnished in the statement of claim. Before the Tribunal, the plea of the employer was that services of the workman had never been terminated and rather he had voluntarily abandoned his service having worked for 16 days i.e. from 15.4.1997 to 30.4.1997.
The Tribunal has returned a finding by noticing muster roll, Exhibit M1, produced on record as regards the workman having served only for 16 days i.e. from 15.4.1997 to 30.4.1997. It has further been observed by the Tribunal that the workman had failed to produce any documentary evidence as regards having worked for 240 days in the preceding 12 calender months taken from the date of termination and as such, held that he was not entitled to the protection under Section 25 of the Industrial Disputes Act, 1947 (for short ''the Act'').
Learned counsel appearing for the petitioner would submit that the workman had been in continuous service as a Helper Electrician on daily wages from 1.4.1995 to 30.4.1997 and such fact has been ignored by the Tribunal. Towards such assertion, learned counsel would refer to documents appended along with the instant writ petition at Annexures P5 to P8.
On a specific query put to the learned counsel that apart from the deposition of the workman himself as also his affidavit placed on record before the Tribunal, was any other evidence produced to demonstrate as regards daily wage service having been rendered for a period of 240 days in the last calender year, it stands conceded that no such evidence had been adduced. Mr. Ghuman would even admit that the documents now placed on record and appended at Annexures P5 to P9 were not a part of the record before the Tribunal. Learned counsel has further conceded that no application had been moved on behalf of the workman before the Tribunal to call upon the employer to produce the relevant record in the nature of muster rolls, salary slip, attendance register etc. Learned counsel, however, would join issue and would contend that the burden of proving that the workman has not worked for 240 days is on the employer. It is further contended that since the employer possesses the best evidence, as such, notwithstanding the fact that an application had not been moved on behalf of the workman and the employer having not called upon to produce the relevant record, still the onus of proving the length of service of 240 days in the calender year preceding date of termination would not shift upon the workman. Towards such submission, reliance has been placed on a Division Bench judgment of this Court in Bal Kishan v. Presiding Officer, Labour Court, Panipat, 1996 (3) SCT 548.
Having heard learned counsel for the parties at length, this Court is of the considered view that there is no merit in the instant petition and the same deserves dismissal.
The question as regards burden of proof pertaining to completion of 240 days of continuous work in a year has come up for consideration before the Hon''ble Supreme Court of India on a number of occasions in the recent past. In The Range Forest Officer Vs. S.T. Hadimani, , a dispute was referred to the Labour Court as to whether the workman had completed 240 days of service. Award was passed holding that the services of the workman were wrongly terminated without giving retrenchment compensation. In coming to such conclusion, the Labour Court stated that in view of the affidavit of the workman saying that he had worked for 240 days, the burden was on the Management to show justification in terminating his service. The Hon''ble Supreme Court, however, took the view that the Tribunal was not right in placing the burden on the Management without first determining on the basis of cogent evidence that the workman had worked for 240 days in the year preceding his termination. The Apex Court held that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination and that filing of an affidavit is only his own statement in his own favour which cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had worked for 240 days in a year. As such, the award was set aside.
In Municipal Corporation, Faridabad Vs. Siri Niwas, , the workman had worked from 5.8.1994 to 31.12.1994 as a Tubewell Operator. He had alleged that he had worked further from 1.1.1995 to 16.5.1995 and his services were terminated on 17.5.1995. Industrial dispute which was raised in the case of the workman before the Labour Court was that he had completed 240 days in a year and the order of retrenchment was illegal as the conditions preceding Section 25-F of the Act had not been complied with. On the other hand, Management had contended that the employee had worked for only 136 days during the preceding 12 months on daily wages. Upon considering the material placed on record, the Labour Court came to a conclusion that the total number of working days put in by the workman were less than 240 days and as such, he was not entitled to any relief. Workman assailed the correctness of the award before the High Court, which took a view that since the Management did not produce the relevant documents before the Labour Court, an adverse inference should be drawn against it as it was in possession of the best evidence and it was not necessary for the employee to call upon the Management to do so. The High Court has observed that the burden of proof may not be on the Management but in the case of non-production of documents, an adverse inference could be drawn against the Management. On such reasoning, writ petition was allowed holding that the employee had worked for 240 days. Over-ruling the decision of the High Court, the Apex Court found in the facts of the case that the workman had not adduced any evidence before the Labour Court and that apart from examining himself in support of his contention, the employee did not produce or call for any document from the office of the Management including muster rolls etc.
In Manager, R.B.I., Bangalore Vs. S. Mani and Others, , the workmen raised a contention of having rendered continuous service between April 1980 to December 1982 in their pleadings and in their affidavits. The Labour Court based its decision in favour of the workmen and against the Management in the light of the affidavits filed by the employees and took a view that since the Management had not produced the attendance registers, the burden on the workmen to prove 240 days of service stood discharged. The Apex Court, however, held that pleadings did not constitute a substitute for proof and the affidavits containing self-serving statements would not be sufficient to prove continuous service of 240 days. It was observed that the workmen had not called upon the Management to produce relevant documents and the initial burden of establishing factum of continuous work of 240 days in a year, which was on the workmen, had not been discharged. On such reasoning, the Apex Court set aside the award of the Labour Court wherein reinstatement had been directed. Such view, as has been noticed hereinabove, has been re-iterated thereafter by the Hon''ble Supreme Court in R.M. Yellatti Vs. The Assistant Executive Engineer, .
In the light of such view and dictum laid down by the Apex Court, benefit of judgment of Division Bench of this Court in Bal Kishan''s case (supra) cannot enure to the benefit of petitioner.
In view of the conceded position of fact that the workman apart from his own affidavit and self-serving statement had not produced any document whatsoever before the Tribunal as regards 240 days of service in the preceding 12 months taken from the date of termination, there would be no grounds for interference with the finding recorded by the Tribunal in the impugned award.
Learned counsel for the petitioner, at this stage, would raise an additional grievance and would submit that certain daily wage employees who had joined service even later than the petitioner have been granted the benefit of regularization in service vide order dated 27.7.2011. Such grievance has been answered in the joint written statement filed on behalf of respondents No. 2, 3 and 4 wherein it has been averred that the petitioner cannot claim any parity as the services of only such daily wage employees had been regularized who had completed 240 days in a calender year.
For the reasons recorded above, no basis to warrant interference in the impugned award dated 9.6.2010 at Annexure P4 is made out. Writ petition is, accordingly, dismissed.