1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 10TH DAY OF JULY 2012 BEFORE THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA W.P.No.84132/2009 (L-KSRTC) BETWEEN: MR. SANGAYYA S/O MALLAYYA PUJARI, AGE: 43 YEARS, OCC: NIL, R/O JUMANAL, TQ: & DIST: BIJAPUR. PETITIONER (BY RAMESH .B. ANNEPPANAVAR, ADVOCATE.) AND: 1. THE ASSISTANT EXECUTIVE ENGINEER P.W.D. SUB-DIVISION,NO.1, BIJAPUR, DIST: BIJAPUR. 2. THE EXECUTIVE ENGINEER P.W.D. DIVISION OFFICE, BIJAPUR, STATION ROAD, BIJAPUR, DIST: BIJAPUR. 3. THE SECRETARY TO THE DEPARTEMENT OF PUBLIC WORKS, 2 GOVT. OF KARNATAKA, BANGALORE-560001. 4. THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT, GOVT. OF KARNATAKA, K.R. CIRCLE, BANGALORE-560001. RESPONDENTS (BY SRI M KUMAR, AGA.,) THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30-11-2007 PASSED BY THE LABOUR COURT, BIJAPUR IN [CASE NUMBER] PRODUCED AS ANNEXURE-A. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Petitioner, who worked as heavy majdoor on N.M.R basis, alleging wrongful termination, having approached the Government of Karnataka for relief, a reference under [SECTION] of [ACT] (for short 'the Act'), was made to the Labour Court at Bijapur, for adjudication.
2. Petitioner filed claim statement and contended that he worked on N.M.R basis as heavy majdoor from 22.03.1982 to 09.10.1986 and was terminated orally and sought for a declaration that the order of termination is null and void and to direct the respondents to reinstate him into the service with full backwages, continuity of service and all other consequential benefits. Respondents filed written statement and denied the claim that the claimant/petitioner worked for more than 240 days continuously during 12 calendar months. The periods for which the petitioner worked on N.M.R basis were stated. Respondents also raised the plea of delay and laches on account of intervening period of 12 years and sought dismissal of the claim. MW-1 deposed for the respondents, through whom Exs.M-1 to M-43 were marked. Claimant/petitioner got himself examined. Labour Court, by appreciating the evidence has found that the claimant had not worked continuously for more than 240 days in 12 calendar months and there is no violation of [SECTION] of the Act and also there is no evidence of any junior having been retained in service. Hence, it held that there is no violation of [SECTION] of the Act. Further, noticing that, oral termination on 09.10.1986 was not established and there being delay of 13 years in raising the dispute, it recorded the finding that the dispute was not in existence at time of filing the conciliation application. As a result, the claim was negated. Feeling aggrieved, the claimant has filed this writ petition.
3. Sri [ENTITY], learned Advocate appearing for the petitioner, firstly, contended that the findings of the Labour Court are perverse and illegal. He submitted that the burden of proof with regard to 240 days service was on the respondents, which was not discharged by them and hence the finding recorded being illegal, calls for interference. Secondly, issue relating to delay having not been raised, finding recorded thereon is opposed to ratio of the decision in the case of [PRECEDENT]. Thirdly, the non-exercise of powers under [SECTION] of the Act is irrational and hence interference in the matter is called for.
4. Sri [ENTITY], learned Additional Government Advocate appearing for the respondents on the other hand, made submissions in support of the impugned award and sought dismissal of the writ petition.
5. I have perused the record. The point for consideration is:
Whether the impugned award is illegal?
6. In [PRECEDENT], it has been held as follows:
"2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10-8-1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days, the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in [PRECEDENT]. 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".
(emphasis supplied by me)
7. In the case of [PRECEDENT], it has been held that, the initial burden of proof is on the workman to show that he had completed 240 days of service and the view taken by the Tribunal that the burden was on the employer was held to be erroneous.
8. In [PRECEDENT], it has been held as follows:
"17. Analysing the above decisions of this Court, it is clear that the provisions of the [ACT] in terms do not apply to the proceedings under [SECTION] of the [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 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. 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 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 [SECTION] of the [ACT] will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case".
(Emphasis supplied by me) In view of the above position of law, the initial burden of proof with regard to 240 days of service in 12 calendar months being on the petitioner, Labour Court having appreciated the evidence, is justified in holding that the claimant/petitioner has failed to prove that he served for 240 days in 12 calendar months. The finding recorded being on appreciation of evidence placed by the parties, more particularly, the documents produced at Ex.M-1 to M-43 by the respondents, the finding is not perverse.
9. The alleged termination being on 09.10.1986, the dispute was raised in January 1999 as was evident from Ex.C-1. There being intervening period of about 13 years, Labour Court has held that the dispute was not in existence at the time of filing the conciliation application and as such the matter is stale. It is true that there is no formula of universal application with regard to the period within which the reference should be sought. It would depend upon the facts of an individual case. In this background, Labour Court has examined the record of the case. Even according to the petitioner, he having been terminated on 09.10.1986, conciliation was sought only in January 1999 and as such, there was intervening period of 13 years which is quite long and as such the dispute was not live.
10. In [PRECEDENT], it has been held as follows:
"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under [SECTION] of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under [SECTION] of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under [SECTION] of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made".
11. The position of law has been reiterated by the Apex Court in the case of [PRECEDENT], as is evident from the following:
"It is true, as held in Shalimar Works Ltd. vs. Workmen
- AIR 1959 SC 1217 that merely because the [ACT] does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of most of the old workmen was held to be fatal in [PRECEDENT]. In [PRECEDENT], a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In [PRECEDENT], it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available".
12. In view of the undisputed position that, conciliation was sought after about 13 years by the petitioner, Labour Court is justified in arriving at the conclusion that there was no dispute in existence when the conciliation was sought and in not granting any relief to the petitioner. Since there was no live dispute, question of exercising power under [SECTION] of the Act did not arise.
13. The approach of the Labour Court to the matter is sound and the order passed by it disentitling the claimant/petitioner to relief is neither irrational nor illegal. No case is made out to interfere in exercise of writ jurisdiction. Finding on fact by the Labour Court, which is neither perverse nor illegal, cannot be interfered in the exercise of writ jurisdiction.
In the result, writ petition being devoid of merit is dismissed with no order as to costs.
JUDGE Ksj/-