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Judgment
The petitioner has filed the present petition,
under Article 227 of the Constitution of India, challenging the
award dated 23/12/2015 passed by the Presiding Officer,
Labour Court, Sagar, District Sagar.
Brief facts of the case are that the
respondent was engaged from time to time with the
petitioner on the basis of availability of the work, but respondent started picking up quarrels with the superior
officers demanding whole month work and salary on the
basis of collector''s notification meant for labours other than
agricultural labours. She herself abandoned the work in the
year 2007 and, therefore, she was again offered to continue
work as seasonal labour, but again she started creating
problems and refused to accept the wages calculated on the
basis of notification. The respondent thereafter filed dispute
before Presiding Officer Labour Court on 17/02/2014. The
petitioners filed reply to the said application. Thereafter, the
petitioners moved an application on 20/08/2015 for taking
some material documents on records, but the trial Court has
dismissed the said application. Thereafter, the labour Court
has passed the impugned award by which the labour Court
has directed to reinstate the respondent along with back
wages. Being aggrieved by that award, the petitioner has
filed the present petition.
Learned counsel appearing on behalf of the
petitioner argues that the award passed by the labour Court
is illegal and arbitrary. He submits that the labour Court has
failed to consider that the respondent was working as
seasonal labour and was engaged in the petitioner''s
organisation as per the availability of the work. The labour
Court has committed jurisdictional error by shifting the
burden of proof relating to 240 working days on the present
petitioners. He submits that the respondent has failed to
prove that during the last 25 years of her working as
seasonal labour, she has completed one year''s service or
240 days service in order to attract the Section 25-F of the
Industrial Dispute Act. He further submits that the labour
Court has erred in awarding the back wages to the
respondent who is seasonal labour and engaged on the
basis of availability of the work.
The respondent had filed his return and
submits that the respondent never left the job but her
services were illegally terminated thrice. However, before the
Conciliation Officer, the petitioner side conceded to reinstate
the respondent. The notice as contained in Annexure P/11 has never been served on the respondent and they appear
to be fabricated documents and the petitioners were
harassing the respondent. The earlier petitioners paid the
salary as fixed by the Collector but in order to harass the
petitioner, started paying the salary fixed for Agriculture Farm
Labour. The salary was not paid to the petitioner from April
2010 to November 2011 which was admitted by the
petitioners before the labour Court. The findings given by the
labour Court that the respondent has served for more than
240 days in a calendar year and her services were
terminated without complying the provisions of Section 25-F
of the Industrial Disputes Act. It is submitted that as per the
provision of Section 25-F of the ID Act, any termination
without complying with the provision amounts to illegal,
retrenchment and, therefore, for this reason the labour Court
has rightly passed the impugned award. The petitioner has
failed to produce the relevant documents before the labour
Court to demonstrate that answering respondent has not
worked for 240 days in a calendar year although they are in exclusive possession of the petitioner. He further relied on a
judgment passed by the Apex Court in the case of Gauri
Shanker vs. State of Rajasthan, 2015 (12) SCC 754.
Heard learned counsel for the parties and
perused the record as well as the award passed by the
labour Court. From perusal of the order passed by the labour
Court, it reveals that the respondent was working as a labour
in the petitioner''s association. She was paid the salary as
per the Collector''s basis, however, thereafter the respondent
has started paying her salary as per the Agricultural Farm
Labour. Thereafter, her services were terminated vide order
dated 01/02/2007, she therefore filed an application for
conciliation before the Conciliation Officer. Before the
Conciliation Officer, the petitioner has given an assurance for
reinstating her, however, from April 2010 she has started
working with the petitioners. Thereafter although she had
working from April 2010 to November 2011, however, no
salary has been paid to her. She again approached before
the Conciliation Officer by filing an application. Petitioners
have again given assurance for reinstating her. Thereafter,
she appeared before the petitioners on 08/09/2011, however,
her services were again terminated on 01/01/2012. Before
terminating her services, no departmental enquiry was
initiated against her and she has not paid the compensation
also. Before terminating the services, the petitioner has not
followed the provision of Sections 25-F, 25-G & 25-H, of the
ID Act and, therefore, she filed this application challenging
the order of termination dated 01/02/2012. Respondent has
filed reply and denied that the respondent has completed
240 days in a calendar year. It is submitted that the
respondent has committed misconduct and has not given
her attendance in time and as well as her appointment is on
the basis of availability of the work and, therefore, her
services have been terminated. It is submitted that the
respondent is a seasonal labour and is employed by the
petitioners on availability of the work and, therefore, before
termination of her services, no enquiry is required to be initiated and the compliance of Section 25-F, 25-G & 25-H of
the ID Act is not required to be done.
The labour Court framed the issues and
after recording the evidence has passed the impugned
award. The labour Court while deciding the issue No.2 has
held that the respondent was working with the petitioner''s
association since 1987. The Departmental witness DR. J. P.
Khare has admitted in his statement that the respondent was
working with them from 1987 from time to time. He also
admitted that they have not produced any attendance
register or muster rolls. The attendance register of the
respondent as well as the documents relating to the payment
of salary to the respondent are with the petitioners and as
the petitioners have failed to produce those documents
before the Labour Court, therefore, the labour Court has
given the findings that respondent has proved that she is
employed with the petitioner''s orgaisation since 1987. The
Apex Court in the case of Gauri Shankar (supra) in para 20
has held as under :-
"20. It is not in dispute that the workman was
employed with the respondent Department in
the year 1987 and on the basis of material
evidence adduced by both the parties and in
the absence of the non-production of muster
rolls on the ground that they are not available,
which contention of the respondent
Department is rightly not accepted by the
Labour Court and it has recorded the finding
of fact holding that the workman has worked
from 1.1.1987 to 1.4.1992. The Labour Court
has drawn adverse inference with regard to
non-production of muster rolls maintained by
them, in this regard, it would be useful to refer
to the judgment of this Court in Gopal
Krishnaji Ketkar v. Mohd. Haji Latif wherein
it was held thus: (AIR p.1416, para5)
"5........ Even if the burden of proof
does not lie on a party the Court may draw
an adverse inference if he withholds
important documents in his possession
which can throw light on the facts at issue.
It is not, in our opinion, a sound practice for
those desiring to rely upon a certain state
of facts to withhold from the Court the best
evidence which is in their possession
which could throw light upon the issues in
controversy and to rely upon the abstract
doctrine of onus of proof. In Murugesam
Pillai V. Manichavasaka Pandara, Lord
Shaw observed as follows: (IA p. 103)
''" practice has grown up in Indian
procedure of those in possession of important
documents or information lying by, trusting to
the abstract doctrine of the onus of proof, and
failing, accordingly, to furnish to, the courts
the best material for its decision. With regard
to third parties, this may be right enough- they have no responsibility for the conduct of the
suit but with regard to the parties to the suit it
is, in Their Lordships opinion an inversion of
sound practice for those desiring to rely upon
a certain state of facts to withhold from the
court the written evidence in their possession
which would throw light upon the proposition.''
This passage was cited with approval
by this Court in a recent decision Biltu Ram
v. Jainandan Prasad. It that case, reliance
was placed on behalf of the defendants upon
the following passage from the decision of the
Judicial Committee in Bilas Kunwar v. Desraj
Ranjit Singh . (IA p. 206)
....... But it is open to a litigant to
refrain from producing any documents that he
considers irrelevant; if the other litigant is
dissatisfied it is for him to apply for an affidavit
of documents and he can obtain inspection and production of all that appears to him in
such affidavit to be relevant and proper. If he
fails so to do, neither he nor the Court at his
suggestion is entitled to draw any inference
as to the contents of any such documents.''''
The similar was view was taken in the case
of Director, Fisheries Terminal Division v. Bhikubhai
Meghajibhai Chavda, 2010 AIR SCW 542. In the said
judgment in para 15 has held as under :-
"15) 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 Municipal Corporation,
Faridabad Vs. Siri Niwas [(2004) 8 SCC 195],
where it is observed:
"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."
As per the said judgment, due to non-
production of muster rolls by the employer, the adverse
inference can be drawn against the employer. In the present
case also as the petitioner has failed to produced the muster
rolls and the attendance register before the labour Court
which was admittedly in their possession, therefore, the
labour Court has rightly drawn inference against the
petitioners, thereby holding that the respondent has worked
for more than 240 days in the petitioners'' association. The
petitioners have also failed to prove that the respondent was
indisciplined while she was on duty. The labour Court has
also held that as the respondent has completed more than
240 days in one calendar year before her termination is
amounts to retrenchment under Section 2(oo) of the ID Act
and, therefore, before retrenchment the respondents are
bound to comply with the provisions under Section 25(f) of
the Act. In the present case, the petitioner has not issued
prior one month''s notice, neither paid the salary of one
month in lieu of the notice nor paid any retrenchment
compensation therefore, termination of services of the
respondent amount to be illegal retrenchment.
Thus, the findings recorded by the labour
Court are based on proper appreciation of the evidence as well as facts available on record. The Apex Court in the case
of Gauri Shankar (supra) in para 23 & 24 has held as
under:-
"23. The learned single Judge of the High
Court has exceeded his jurisdiction under
Articles 226 and 227 of the Constitution of India
as per the legal principles laid down by this
Court in the case of Harjinder Singh (supra)
wherein this Court has held thus : (SCC page
205, para 21)
Before concluding, we consider it
necessary to observe that while exercising
jurisdiction under Articles 226 and/or 227 of
the Constitution in matters like the present
one, the High Courts are duty bound to keep
in mind that the Industrial Disputes Act and
other similar legislative instruments are social
welfare legislation and the same are required
to be interpreted keeping in view the goals set out in the preamble of the Constitution and
the provisions contained in Part IV thereof in
general and Articles 38, 39(a) to (e), 43 and
43-A in particular, which mandate that the
State should secure a social order for the
promotion of welfare of the people, ensure
equality between men and women and
equitable distribution of material resources of
the community to sub-serve the common
good and also ensure that the workers get
their dues. More than 41 years ago,
Gajendragadkar, J, opined that
........... The concept of social and
economic justice is a living concept of
revolutionary import; it gives sustenance to
the rule of law and meaning and significance
to the ideal of welfare State.
The said principle has been reiterated by this Court in Jasmer Singh v. State of Haryana & Anr . .
Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that non- compliance of the mandatory requirements under Sections 25-F, 25-G and 25-H of the Act by the respondent-Department rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court.
Thus, as per the said judgment, the High
Court should not interfere into the findings recorded by the
labour Court. Thus, in light of the aforesaid, I do not find that
the labour Court has committed any jurisdictional error in
passing the impugned award. Accordingly, the writ petition is
dismissed.