SCA/15594/2007 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15594 of 2007 With SPECIAL CIVIL APPLICATION No. 17885 of 2007 To SPECIAL CIVIL APPLICATION No. 17890 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE EXECUTIVE ENGINEER & 2 - Petitioner(s) Versus RAGHUBHAI UKABHAI & 6 - Respondent(s) ========================================================= Appearance : GOVERNMENT PLEADER for Petitioner(s) : 1 - 3. MR H.S.MULIA for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 26/07/2007 ORAL JUDGMENT 1. Heard learned Advocate Mr. Hukum Singh for the petitioners and Mr. HS Mulia, learned Advocate SCA/15594/2007 2/22 JUDGMENT appearing for respondent workmen in this group of petitions. 2. Through this petition, petitioner is challenging the award made by the labour court, Surendranagar in Reference (LCS) No. 82 of 2001 dated 12.1.2007 wherein the allowed reference in part and granted reinstatement in favour of the workmen concerned without back wages for interim period by directing the petitioner establishment to reinstate the workmen concerned on their post within thirty days from the date of publication of award without back wages for interim period. 3. Learned AGP Mr. Hukum Singh for petitioners submits that before the labour court, detailed reply was filed by the petitioner wherein none of the averments made in the statement of claim were admitted. Petitioner had disputed working days and working years of the respondent workmen. Continuous service of the workmen concerned was also denied by the petitioner. According to the petitioner, in seniority register, name of the present respondents are not noted and, therefore, they are not considered to be employees of the petitioner. It was also disputed by the petitioner that the concerned workmen have completed 240 days continuous service as alleged and in view of that, it was contended that the question of giving notice or notice pay in lieu thereof and retrenchment compensation to the workmen concerned does not arise and no new workmen were SCA/15594/2007 3/22 JUDGMENT recruited/engaged by petitioner after termination of services of the workmen concerned. He submits that the labour court has committed gross error in not appreciating these contentions raised by petitioner in its written statement. He submits that labour court has committed gross error in granting relief in favour of the workmen. He submits that when section 25F of the ID Act, 1947 was not violated by petitioner, question of non compliance of the mandatory provisions contained therein was not arising and, therefore, labour court ought not to have granted such relief of reinstatement. He also submits that none of the workman was completing 240 days continuous service as alleged and no concrete evidence was produced by the workmen before the labour court. As per his submission, oral evidence of the witness for the petitioner namely Rameshbhai K. Delwadia Exh. 24 was also not properly appreciated by the labour court and therefore award in question is required to be set aside by dismissing the reference of the workmen concerned. Except these submissions, no other submission was made by learned AGP Mr. Singh before this Court and no decision whatsoever was cited by Mr. Singh, learned AGP for petitioners before this court in support of his submissions as aforesaid. 4. Learned Advocate Mr. Mulia has, while supporting the award in question, submitted that the evidence of the workmen on affidavit had SCA/15594/2007 4/22 JUDGMENT remained unchallenged because same was not cross examined by the petitioner. He submits that at the time of terminating services of the workmen concerned, junior employees were retained and continued in service and subsequently fresh workmen were also engaged by the petitioner as daily wager and at that time, petitioner had not given offer of work to the workmen concerned and, therefore, labour court has rightly set aside the order of termination and rightly granted reinstatement alone. He also submits that the seniority list was not published by the petitioner and no documentary evidence whatsoever was produced by petitioner in support of the contentions raised by petitioner in his written statement, in respect of presence card, wage slip, identity card and muster roll of the workmen working in the establishment of petitioner and, therefore, labour court was right in considering the evidence on record and and rightly relied upon he decision of the apex court in case of RM Yellatti versus Asstt.Executive Engineer, reported in 2005 (9)SCALE 139 = 2006 (1) SCC 106. He also submits that the labour court has rightly exercised the jurisdiction vested in it and has not committed any error in law or facts in granting reinstatement in favour of the workmen concerned and, therefore, no interference of this court is warranted in exercise of the powers under Article 227 of the Constitution of India. SCA/15594/2007 5/22 JUDGMENT 5. I have considered the submissions made by both the learned Advocates. I have also perused the award in question passed by the labour court, Surendranagar. Industrial dispute was referred to for adjudication on 30.6.2001. Statement of claim was filed by workmen wherein it was alleged that the respondent workmen were remaining in service for about twelve years and their services were terminated on 1st January, 1988. It was also contended that the workmen had completed 240 days continuous service in one year preceding the date of alleged termination of their services and therefore action of termination of their service was violative of the mandatory provisions of section 25F of the ID Act, 1947. Reply to the statement of claim was filed by petitioner. Thereafter, affidavit of each respondent workmen were filed by workmen but the petitioner had not cross examined those workmen and thereafter, vide Exh. 24, witness for the petitioner namely Shri Rameshbhai K.Delvadia was examined before the labour court and thereafter, labour court has examined the matter and gave finding after considering the record and evidence on record. 6. Labour court has come to the conclusion the oral evidence of the workmen concerned vide Exh. 15 to 21 had remained uncontroverted since it was not cross examined by the petitioner before the labour court. Labour court also considered that the seniority list was not published by the SCA/15594/2007 6/22 JUDGMENT petitioner before passing order of termination against workmen concerned. Labour court also appreciated that no muster card, presence card, wage slip, identity card were supplied by the petitioner to respondent workmen and, therefore, workmen concerned were having no material with them except to contend on oath before the labour court that they were working for 12 years continuously and have also completed 240 days continuous service in a year preceding the date of termination and that part of their oral evidence was not cross examined by the petitioner before the labour court. Therefore, labour court consideed the decision of the Hon'ble Apex Court in case of RM Yellatti versus Asstt.Executive Engineer, reported in 2005 (9)SCALE 139 and also came to the conclusion that the petitioners have proved completion of 240 days continuous service and, in view of the non compliance of section 25F of the ID Act, 1947, action of termination of their service is violative of sec. 25F of the ID Act, 1947. Thus, labour court has recorded clear finding that 240 days continuous service was proved by the workmen and the petitioner has violated section 25F of the ID Act, 1947. 7. Labour court has also come to the conclusion that section 25-G and H have also been violated by the petitioner. Therefore, labour court granted reinstatement without back wages for interim period in favour of the workmen SCA/15594/2007 7/22 JUDGMENT concerned. 8. Most relevant and important aspect of the matter is that the evidence of the workmen concerned on affidavit from Exh. 15 to 21 has remained unchallenged and uncontroverted as it was not cross examined by the petitioner. Second important thing is that the petitioner has not supplied any document to the workmen concerned from the date of their appointment or engagement till the date of their termination of service. As per the case of the workmen concerned, they were not supplied any identity card or wage slip from which the workmen can establish completion of 240 days continuous service by leading proper evidence. These facts have been also admitted by the witness for petitioner Ramesh K. Delvadia vide Exh. 24. 9. Third important thing is that the muster roll wherein the presence of the workmen concerned was being marked by the petitioner or wage slip on the basis of which wages were being paid by petitioner to workmen concerned were in custody of the petitioner and yet they were not produced and proved before the labour court by petitioner for rebutting the assertions of workmen concerned. SO, documents which were relevant and material for rebutting the case of workmen which were in custody of petitioner were not produced and proved by petitioner before the labour court and, therefore, labour court was right in drawing an adverse inference aginst the SCA/15594/2007 8/22 JUDGMENT petitioner for withholding of the best documentary evidence possessed by it. Seniority list was not published and at the time of termination, employees junior to the petitioner were continued by petitioner and subsequently also, fresh workmen were engaged and recruited by petitioner without first offering such work to the workmen concerned. Such evidence of the workmen concerned had remained uncontroverted and unchallenged and petitioner not produced any documentary evidence for rebutting the case of the respondent though same was available with the petitioner. Labour court has appreciated the evidence on record and come to the conclusion that the publication of seniority list is mandatory but that has not been done and that was the vital defect while terminating services of the workmen concerned. Labour court has also considered the various decisions of this court as well as Bombay High Court and apex court and set aside the order of termination on the ground that the same is violative of the provisions of section 25F, 25G and 25H of the ID Act and granted reinstatement with continuity of service. 10.Law on this subject has recently been examined by the apex court and decided that in such circumstances when the workman is not having any evidence to prove completion of 240 days continuous service within one year, then, in such circumstances, employer shall have to SCA/15594/2007 9/22 JUDGMENT produce documentary evidence which are in possession of the employer and if the evidence of the workman has not been challenged by cross examining the workmen concerned, then labour court has right to believe the oral evidence of workman. In RM Yellatti versus Asstt.Executive Engineer, reported in 2005 (9)SCALE 139 = 2006 (1) SCC 106, this aspect has been examined by the apex court. It has been observed by the apex court in par 17, 18 and 19 as under: “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 SCA/15594/2007 10/22 JUDGMENT 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 Art. 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. 18. Now applying the above decision to the SCA/15594/2007 11/22 JUDGMENT facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22/11/1988 to 20/6/1994. This period is the period borne out the certificate (Ex. W1) issued by the former Asstt. Executive Engineer the evidence in rebuttal from the side of the management produce five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex. M4 and Ex. M5, which indicated that the workmen had worked for 43 days during the period 21/1/1994 to 20/2/1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour Court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstance, we are of the view that the Division Bench of the High Court ought not to have interfered with the concurrent SCA/15594/2007 12/22 JUDGMENT findings of fact recorded by the Labour Court and confirmed by the learned Single Judge vide order dated 7/6/2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workmen are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workmen was working in SD 1, Athani and Ex. W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani- 591304. In the present case, the defence of the management was that although Ex. W1 refers to the period 22/11/1988 to 20/6/1994, the workmen had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the Labour Court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workmen had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate SCA/15594/2007 13/22 JUDGMENT (Ex.W1). In the circumstances, the Division Bench of the High Court had erred in interfering with the concurrent findings of fact. 19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earner, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of terminations. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper record of the services rendered by the daily wagers; that these records should be SCA/15594/2007 14/22 JUDGMENT signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government.” 11.Recently, on 8th March, 2007, apex court has considered same issue in case of M/s. Sriram Industrial Enterprises Ltd. Versus Mahak Singh & Ors. reported in 2007 (3) Supreme Today page 553. In the said decision, the apex court has considered the decision in case of Range Forest Officer v. ST Hadimani reported in (2002) 3 SCC 25 and other all relevant decisions including the decision in case of Surendranagar District Panchayat versus Dahyabhai Amarsinh (2005) 8 SCC 750. In the said decision, the apex court has also considered the earlier three Judges decision of the apex court in case of RM Yellatty v. Assistant Executive Engineer (2006) 1 SCC 106. Ultimately, after considering all relevant decisions in respect of onus of proof, whom to prove 240 days continuous service and how to SCA/15594/2007 15/22 JUDGMENT discharge such burden by the workman and presumption of non production of documents by the employer. Relevant observations made by the apex court in para 23 and 34 of the said decision are reproduced as under: “23.Regarding Mr. Desai's submission that this Court had consistently laid down that it is for the workmen to prove that they had worked for 240 days in a calendar year, Mr. Viswanathan submitted that this Court had in the case of R.M.Yellatty vs Assistant Executive Engineer, reported in (2006) 1 SCC 106, observed as under: 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 SCA/15594/2007 16/22 JUDGMENT 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 Art. 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.' 34. Having correctly interpreted the provisions of Section 6N of the UP Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse SCA/15594/2007 17/22 JUDGMENT inference. The views expressed by this Court on the question of burden of proof in case of range Forest Officer's case (supra) were watered down by the subsequent decision in R.M. Yellatty's case (supra)and in our view the workman had discharged their initial onus by production of the documents in their possession.“ 12.Second question is section 25-G and 25-H, whether applicable in case when section 25F has not been violated or when workman has not completed 240 days continuous service, then whether section 25G and 25H would apply or not. Of course, this question is not relevant in view of the facts of the present case before hand because in this case, labour court has given clear finding that there has been violation of section 25F of the ID Act and labour court has also held that the workmen concerned have completed 240 days continuous service. However, this case has been examined by this court that section 25G and 25H of the ID Act, 1947 are independent and distinct sections and for claiming benefit thereof, it is not necessary for the workman to contend and prove that there has been breach of SCA/15594/2007 18/22 JUDGMENT section 25F of the ID Act, 1947. Moment, termination of workman is covered by the definition of 'retrenchment' under section 2(oo), then, irrespective of the fact whether he has been completing 240 days continuous service or not, court can independently examine as to whether section 25G and 25H are followed by the employer or not as decided by this court (Coram : Hon'ble Mr. Justice MR Shah,J.) in SCA No. 6262 of 2005 with SCA No. 12616 of 2005 dated 25th July, 2005. In said matter, this court has observed as under in para 12, 13, 14 and 15: “12. The Labour Court on appreciation of the evidence and considering the fact that the workman has worked only for 3 days in the year 1983 and for 69 days in all in the year 1984-85 as Daily Wager, has held that as the workman has not completed 240 days in the preceding year of retrenchment, there is no breach of Section-25-F of the Industrial Disputes Act. However, considering the fact that new employees came to be appointed on 19.12.1995, the Labour Court has on appreciation of evidence held that there is breach of Section-25-G of the I.D.Act by not calling upon the workman for reemployment. This is finding of fact arrived at by the Labour Court on appreciation of evidence which is not required to be interfered by this Court in exercise of the powers under Articles 226 and 227 of the Constitution of India. Under the circumstances, finding given by the Labour Court that SCA/15594/2007 19/22 JUDGMENT there is breach of Section-25-G of the I.D.Act, in my opinion, is not required to be disturbed and the same is not disturbed and is accordingly confirmed. 12.The next question is with regard to the contention raised on behalf of the management relying upon the judgment of the Division Bench of this Court in case of STATE OF GUJARAT V. RAMESH MOPABHAI RATHOD, 2003 (3) GLR 2590 that for attracting and applicability of Section-25-G and 25-H of the I.D.Act, retrenchment covered by Section-25-F is must, is required to be considered by this Court. Firstly, it is required to be noted that in the said case, the said controversy was not directly involved and on facts, it was found