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Judgment
G.S. Sandhawalia, J.
CM. No. 2879 of 2014
Application for condonation of delay of 6 days in filing the restoration application is allowed, in view of the averments made in the application duly supported by an affidavit.
CM. No. 2880 of 2014
The present application has been filed under Order IX; Rule 8 read with Section 151 CPC for recalling of order dated 29.01.2014 vide which the petition was dismissed for want of prosecution.
Notice of the application
Mr. Kshitij Sharma, AAG, Haryana, who is present in Court accepts notice and states that he has no objection if the application is allowed.
CWP No. 19397 of 2011
In view of the above, the application is allowed. Order dated 29.01.2014 is recalled and the case is restored to its original number.
CWP No. 19397 of 2011
With the consent of counsel for the parties, the main case is also taken on Board for hearing today itself.
Challenge in the present writ petition is to the order dated 24.8.2010 (Annexure P-1) passed by Labour Court, Panipat whereby, the reference was declined against the workwoman.
A perusal of the paper book would go on to show that the workwoman, who was working as a part-time sweeper from 01.01.1993 to 30.06.2002, raised an industrial dispute vide demand notice dated 08.07.2002 that her services were terminated without complying with the mandatory provisions of the Industrial Disputes Act, 1947 (in short the Act''). It was averred that juniors were working with the respondent-school.
The stand of the respondent-school was that she was a part-time water-woman and used to come for 3-1/2 hours in the morning and was paid as per Deputy Commissioner''s rates from 1st March to February every year excluding summer vacation. Sanction of the post was granted from year to year basis and fresh appointment was made and she had not completed 240 working days in any calendar year. She had left the job on her own sweet will and, therefore, there was no violation of the provisions of the Act.
The workwoman stepped into the witness box as WW-1 and deposed regarding her claim whereas the Principal of the School, Smt. Pushp Lata Gogia appeared as MW-1, who filed an affidavit and deposed as per the written statement. It was averred that the workwoman did not report for duty after 16.9.2002 and that she used to be disengaged during vacation and every year after sanction she was engaged.
Accordingly, a finding was recorded that she had not completed 240 days and no evidence had been led by her in the file to substantiate the said fact and accordingly, the reference was declined after placing reliance upon the judgment of the Apex Court in The Range Forest Officer Vs. S.T. Hadimani, .
Counsel for the petitioner has vehemently submitted that it was admitted that she had worked for a period of 9 years from 1993 to 2002 and, therefore, she was entitled to protection under the Act.
After hearing counsel for the petitioner, this Court is of the opinion that there is no merit in the said submission. Merely because she had worked for a period of 10 years, would not mean that an adverse inference could be drawn against the respondent-school. Under Sections 25B and 25F, the requirement would be that 240 days preceding the date of termination for the period of continuous service which has to be taken into account. The onus to prove this fact is always upon the workman as per the settled precedent. Reliance can be placed upon judgment of the Apex Court in R.M. Yellatti Vs. The Assistant Executive Engineer, , wherein, the Apex Court has laid down the principles regarding the burden of proof and that the drawing of adverse inference would depend upon the facts of each case. The following principles were laid down:--
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, mere 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 selfserving 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.
The workwoman was thus remiss in filing an appropriate application and calling for the record to show her attendance that from 30.06.2002 backwards, she had completed 240 days in view of the categorical stand taken by the school. A -factual finding has been recorded by the Labour Court which is well-justified. Nothing could be pointed out or brought on record by the petitioner to show that such finding is perverse or requires interference in any manner. Accordingly this court is of the opinion that there is no merit in the present writ petition and the same is dismissed.