SCA/3919/2001 1/69 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3919 of 2001 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 Labour and Industrial Tribunal judges ? SCA/3919/2001 2/69 JUDGMENT ================================================= STATE OF GUJARAT - Petitioner(s) Versus KARSANBHAI JESANG - Respondent(s) ================================================= Appearance : MS MITA PANCHAL, AGP, for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 16/09/2005 ORAL JUDGMENT 1.Heard Ms.Mita Panchal, learned Assistant Government Pleader on behalf of petitioner – State of Gujarat. 2.This matter came up for admission hearing before court on 11.6.2001 on which date, Rule was issued making by it returnable on 3.7.2001, and ad-interim relief, in terms of para 5(C) was granted till then. Thereafter, on 28.8.01, interim relief was extended upto SCA/3919/2001 3/69 JUDGMENT 6.9.2001. From perusal of original record, it appears that ad-interim relief has not been extended thereafter. Not only that, no such request was made on behalf of the State for extension of ad-interim relief. From 7th September, 2001, the impugned award passed by the Labour Court, Surendranagar, was required to be implemented by the State of Gujarat because thereafter, no interim relief was continued and it came to an end on 6th September, 2001. This is the sorry state of affairs. This petition was admitted since the Government Pleader pointed out judgment dated 31.1.2001 of the Honourable Supreme Court passed in Civil Appeal No.1684 of 1998 in the case of State of Gujarat & others v. Pratamsingh Narsinh Parmar, whereby the Honourable Supreme Court held that `forest' is not an `industry'. 3.In the present petition, State of Gujarat has challenged the award dated 5.8.2000 passed by SCA/3919/2001 4/69 JUDGMENT Labour Court, Surendranagar, in Reference (LCS) No.327 of 1992, mainly on the ground that the Forest Department is not an `industry' and it is covered by decision of Honourable Supreme Court referred to above, the workman had not completed 240 days during any year and Labour Court had not given sufficient opportunity to petitioner for defending the case and to produce the evidence on record and passed the award without considering written statement filed by the petitioner. The workman had raised dispute after a period of 8 years and therefore, on ground of delay and latches, award is required to be set aside. 4.Labour Court, Surendranagar, has granted reinstatement with continuity of service while setting aside the termination order with 20% back wages with effect from 15.6.92 with cost of Rs.500/-. Notice of Rule issued by this court was served upon the respondent- SCA/3919/2001 5/69 JUDGMENT workman, but inspite of service, no appearance is filed on behalf of respondent before this Court. However, considering fact that matter is more than four year old and award has been stayed by this Court, matter is taken up in absence of respondent and heard, finally. 5.The workman had filed statement of claim vide ex.4, the petitioner had filed written statement vide ex.8, and thereafter vide ex.9, workman was examined before Labour Court, and cross examined by petitioner. Thereafter, matter was adjourned for evidence of petitioner but inspite of various opportunities given by Labour Court, petitioner did not lead any oral evidence before the Labour Court though an advocate was engaged by petitioner in Reference. Petitioner not availed opportunities given by Labour Court. Thereafter, Labour Court, Surendranagar, closed the evidence of SCA/3919/2001 6/69 JUDGMENT petitioner and learned advocates for both parties were heard by Labour court. Labour Court considered oral evidence of workman and in absence of any evidence being led by petitioner, ultimately, it came to conclusion that termination order is passed by petitioner violating section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). Accordingly, termination order has been set aside and reinstatement with continuity of service is directed, however full backwages have not been awarded for interim period from date of termination because of delay in raising industrial dispute by workman. Labour Court has also not granted full back wages because some part of gainful employment was admitted by workman. Therefore, Labour Court has granted 20% back wages form date of Reference , 15.6.92. 6.Along with petition, the petitioner has SCA/3919/2001 7/69 JUDGMENT produced copy of statement of claim and a copy of written statement. Except that, no other document is placed on record of petition by petitioner. 7.Learned AGP Ms. Mita Panchal has raised contentions before this court that in written statement, contention raised by the petitioner that Forest Department is not an industry, has not been examined by Labour Court and therefore, Labour Court has committed gross error in not examining the contention raised in written statement. She relied upon the decision of Full Bench of this Court in case of Gujarat Forest Producers, Gatherers and Forest Workers Union v. State of Gujarat reported in 2004(2) GLR 1488. She relied upon paragraph 26 of Judgment which has been read over before this court in detail. No doubt, it is clear that at the time of admitting the matter, decision of the Apex Court which has been relied upon SCA/3919/2001 8/69 JUDGMENT has not been again relied upon by AGP today while making her submissions before this Court. Second contention raised by learned AGP is that workman had not completed 240 days in preceding twelve months and therefore, Labour Court has committed gross error in setting aside the termination order. She also raised contention that it is burden upon respondent workman to prove continuous service of 240 days which has not been proved by workman. She also submits that delay in raising industrial dispute itself fatal to the Reference. The labour court has not considered said question, therefore, award is bad. She emphasized her submission that in spite of petitioner not producing any material, it was duty of Labour Court to examine contention which has been raised by petitioner in written statement. She read over whole award before this Court. She also pointed out to this Court the presence of SCA/3919/2001 9/69 JUDGMENT respondent workman marked by petitioner with effect from 1.2.85 to 30.6.85. Except that, no document has been shown to this court by learned AGP. Except as referred above, learned AGP has not raised any other contention before this Court for consideration. 1.First aspect is that State of Gujarat was represented by AGP before Labour Court. Learned advocate Shri B.J.Shah appeared before Labour Court on behalf of State of Gujarat. After filing written statement by petitioner, respondent- workman was examined vide ex.9. According to deposition of workman, he was working as Watchman in Wadhvan Range Forest for more than four years. He was receiving daily wages of Rs.11-20 ps. at the end of month. He also deposed before Labour Court that each month, he was receiving work for 26 days and at the time of SCA/3919/2001 10/69 JUDGMENT termination, no notice pay and retrenchment compensation was paid to him, no notice was given to him, no seniority list has been published by petitioner and after termination of respondent-workman, one new employee Jagabhai Govindbhai was appointed in his place. At that occasion, he was not called by petitioner. After termination, he remained unemployed, but he maintained the family by doing some miscellaneous work where he was getting Rs.200 to Rs.300 per month. He also made a statement before Labour Court that if petitioner was ready and willing to take him back in service, he is prepared to join the service. The workman was cross examined by advocate for petitioner. In cross examination, he gave the date of termination as 10.6.85. He admitted that he raised dispute in year 1992 and he was SCA/3919/2001 11/69 JUDGMENT working as Chowkidar but he denied that he was engaged for miscellaneous work and he left the job of his own. He also denied the facts in cross examination saying that it is not true that he had not completed 240 days' continuous service in preceding 12 months from date of termination. He also denied that he voluntarily stopped to report for work. At present, he stated, he is doing miscellaneous work, but inspite of efforts, he was unable to get any job. That in his family, there were four members and he was not having any land. Against this evidence of respondent- workman, facts are proved to the effect that workman remained in service as Chowkidar for four years continuously. He had completed 240 days' continuous service in preceding twelve months from the date of termination. His service were SCA/3919/2001 12/69 JUDGMENT terminated on 10.6.85 and he raised dispute in 1992. He had not left the job and he was prepared to work if petitioner called him. Against this evidence, petitioner has not led any oral evidence and not produced any documentary evidence, except the working days for period from 1.2.85 to 30.6.85. According to Labour Court, various opportunities were given to petitioner for oral evidence as well as documentary evidence. But those opportunities were not availed by petitioner in spite of fact that advocate has been engaged by petitioner. No details have been produced on record as to what happened with advocate as he had not lead any oral evidence before Labour Court. It is surprising that Government worries about amount of public exchequer on one hand and on other hand, against a poor workman, the matter is SCA/3919/2001 13/69 JUDGMENT allowed to be proceeded without leading any evidence, and after award is made, a writ petition is filed in this court challenging said award. Labour Court has closed right of evidence of petitioner by ex.14. No efforts were made by petitioner to reopen such right in Labour Court. Thereafter, learned advocate from both the sides argued before Labour Court. Even at that occasion, AGP did not thought it proper to request Labour Court to reopen the stage of evidence which closed by Labour Court vide Exh.14 but argued matter without leading any kind of evidence. Therefore, in this background, Labour Court has relied upon oral evidence of the respondent-workman vide ex.9 and came to conclusion that his evidence remained unchallenged because no oral evidence was led by petitioner and no documentary evidence has been produced SCA/3919/2001 14/69 JUDGMENT and proved by petitioner before Labour Court. The Labour Court, in terms came to conclusion that whatever contentions were raised in written statement by petitioner have not been proved by petitioner by leading oral evidence as well as by producing documentary evidence. Labour Court further observed with regard to working days which were produced by petitioner that on what basis same have to be believed since no evidence has been led by petitioner before Labour Court to prove these working days before Labour Court. The Labour Court relied upon oral evidence of workman and came to conclusion that service of the workmen were terminated without notice or notice pay and retrenchment compensation, therefore, section 25-F of the Act has been violated which is considered to be mandatory provision and non compliance SCA/3919/2001 15/69 JUDGMENT thereof renders order of termination void ab initio as decided by Apex Court in case of Mohan Lal v. Management of Bharat Electronics reported in AIR 1981 SC 1253. The Labour Court also observed that in place of respondent-workman, one new employee Jagabhai Govindbhai was also appointed by petitioner because there is no contrary evidence produced by petitioner. Therefore, ultimately, Labour Court has examined matter on the basis of material place before it by respective parties. Labour Court has not granted back wages for period from date of termination till date of dispute i.e. 15.6.92. Further, Labour Court has granted 20% back wages from date of Reference, 15.6.92 after considering the evidence of workman to admit some part of gainful employment. 8.Learned AGP has emphasized her submission on SCA/3919/2001 16/69 JUDGMENT decision of Full Bench in case of Gujarat Forest Producers, Gatherers and Forest Workers Union v. State of Gujarat (supra). Sub para 5 of Paragraph 26 is relevant, which is quoted as under: “26.5 We also answer part of question No.1 of the questions referred in Special Civil Application Nos.4715 of 2003 and 4435 of 2001, and the question No.2 referred in Special Civil Application Nos.8259 of 1996 and 2566 of 1997 in the negative, by holding that, the Forest and Environment Department of the State Government is not an “industry” under Sec.2(j) of the Industrial Disputes Act, 1947, and the question whether any of its units, establishments or undertakings, is an industry or not, will depend upon the nature of the work done by such entity and only when the activity undertaken amounts to an activity for production or distribution of goods and/or services for satisfying wants and desires of consumers, in the sense in which the concepts are understood in the field of industrial economy, satisfying the third ingredient of the triple ingredients test that such unit, establishment or undertaking of the department can be said to be “industry” unless falling in categories removed by constitutional and competently enacted legislative provisions from the scope of SCA/3919/2001 17/69 JUDGMENT Industrial Disputes Act as indicated in clause (c) of Item IV of the guidelines laid down by the Supreme Court in Paragraph 161 of the Bangalore Water Supply Case (supra), including law falling under Arts. 309 to 311 of the Constitution.” In said decision, Full Bench has therefore held that, question whether any of its units, establishments or undertakings, is an industry or not, will depend upon the nature of work done by such entity and only when the activity undertaken amounts to an activity for production or distribution of goods and/or services for satisfying wants and desires of consumers, in the sense in which concepts are understood in field of industrial economy, satisfying third ingredient of triple ingredients test that such unit, establishment or undertaking of department can be said to be “industry” unless falling in categories removed by constitutional and competently enacted legislative provisions from scope of Industrial Disputes Act. Therefore, in view of above findings of Full Bench of this Court, whether particular unit or entity in which respondent workman was working is an industry or not depends upon activities of unit or entity in which respondent was working. No evidence has been led before Labour Court by petitioner that what activities were carried out by Unit or entity in which respondent-workman was working. No material has been shown to Labour Court by which Labour Court could SCA/3919/2001 18/69 JUDGMENT have examine question whether contentions raised by petitioner are correct or not. When contention is raised by petitioner that Forest Department is not an “industry”, then it is burden upon petitioner to prove by material evidence before Labour Court that looking to such activities, a unit or entity or establishment is not an “industry”. No such efforts have been made by petitioner before Labour Court. It is further contended by petitioner that whether the Forest Department is an “industry” or not is purely a question of law. I fail to appreciate this submission when Full Bench of this Court has decided issue that it depends upon activity of unit or entity or establishment, and as such, it is a pure question of fact, and not question of law to be examined by this Court. 9.The contention raised by Ms. Panchal, learned AGP that it is burden upon respondent to prove continuous service of 240 days. According to her submission, said burden is not discharged by workman by producing any evidence and on that count, award is bad. The contention raised by Ms. Panchal cannot be accepted for a simple reason that no documents were given by petitioner to workman SCA/3919/2001 19/69 JUDGMENT when workman was engaged as a daily wager watchman. It is not case of petitioner that at time of appointment or engagement of workman, he was given order in writing. It is also not case of petitioner that during service period, workman was given presence card or muster roll or identity card and wage slip. When employer engaged workman orally and terminated service also orally and during service period, no proof of any document given to workman about presence card, identity card and wage slip, then, on what basis, workman can discharge burden to prove continuous service of 240 days preceding the date of termination. In absence of any document with workman, only mode to discharge burden is to give oral evidence before labour court. Workman has deposed before the labour court at Exh. 9 and his oral evidence was cross examined by advocate for petitioner before labour court. This oral evidence led SCA/3919/2001 20/69 JUDGMENT by workman has supported averments made by respondent in his statement of claim establishing that he remained in continuous service of more than four years and also completed 240 days continuous service. Thus, averments made by respondent in his statement of claim were supported by oral evidence of respondent. When workman discharged his burden by leading oral evidence of himself, then, burden will shift upon employer to rebut such evidence of workman. Law on this point is discussed with a view to appreciate contention of petitioner. In case of Range Forest Officer versus ST Hadimani and another reported in 2002 AIR SCW 909. Apex court observed that in case of workman that he had worked for 240 days in a year preceding his termination, which claim is denied by the management, onus lies upon the workman to show that he had in fact worked for 240 days in a year. [See also : Rajasthan State SCA/3919/2001 21/69 JUDGMENT Ganganagar S. Mills Ltd. vs. State of Rajasthan and others reported in 2005 AIR SCW 3160]. In absence of proof of receipt of salary or wage slip or record of appointment, mere filing of affidavit by workman is not sufficient evidence to prove that he had worked for 240 days in a year preceding his termination. Hon'ble apex court also observed that Tribunal was not right in placing onus on Management without first determining on the basis of cogent evidence that respondent had worked for more than 240 days in a year preceding his termination. Facts of this case are to the effect that workman was examined before labour court and deposed that he had worked for more than four years continuously and completed 240 days continuous service. So, it is not case only based upon affidavit of workman. In Municipal Corporaion, Faridabad versus Siri Niwas reported in 2004 (103) FLR 187, Hon'ble apex court observed SCA/3919/2001 22/69 JUDGMENT that burden of proof was on workman to show that he had worked for 240 days in preceding twelve months prior to his termination. Apex court further observed that if party, despite possession of best evidence, had not produced the same which would have gone against his contention. In case of Manager, Reserve Bank of India, Bengalore versus S. Mani and others reported in (2005) 5 SCC 100, after considering aspect of onus and burden of proof with respect to evidence sufficient to discharge and failure of employer to prove a defence (of abandonment of service) if sufficient or amounted to an admission, discharging the said burden, the apex court held that initial burden of proof is on workmen to show that they had completed 240 days of service. Apex court held that onus of proof does not shift to employer nor is the burden of proof on the workman discharged merely because employer fails to prove a SCA/3919/2001 23/69 JUDGMENT defence or an alternative plea of abandonment of service; filing of affidavit of workman to the effect that he had worked for 240 days continuously or that the workman had made repeated representations or raised demands for reinstatement is not sufficient that can discharge the said burden; other substantive evidence needs to be adduced to prove 240 days' continuous service. Apex court further observed that filing of 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 a conclusion that workman had in fact worked for 240 days in a year. Such evidence might include proof of receipt of salary or wage slip for 240 days or record of appointment or engagement for this period or terms and conditions to his offer of appointment or by examination of any evidence in support of his case. View taken by apex court in aforesaid decision is SCA/3919/2001 24/69 JUDGMENT based upon facts of that particular case. It is correct that initial burden is upon workman to be discharged by legal evidence that he had completed 240 days continuous service within 12 months preceding the date of termination, how to discharge burden by workman in absence of any cogent evidence when employer has not given any single document to him. 10.In Bank of Baroda versus Ghemarbhai Harjibhai Rabari reported in 2005 Labour Industrial Cases 2279, apex court distinguished case of Range Forest Officer versus SD Hadimani (supra) and observed as under in para 8 of the judgment : “While there is no doubt in law that the burden ofproof that a claimant was in the employment of a Management, primarily lies on the workman who claims to be a workman. The degree of such proof so require, would vary from case to case. In the instant case, the workman has established the fact which, of course, has not been denied by the bank, that he did work as a driver of the car belonging to the bank during the relevant period which come to more than 240 days of work. He has produced 3 SCA/3919/2001 25/69 JUDGMENT vouchers which showed that he had been paid certain sums of money towards his wages and the said amount has been debited to the account of the bank. As against this, as found by the for a below, no evidence whatsoever has been adduced by the bank to rebut even this piece of evidence produced by the workman. It remained contended by filling a written statement wherein it denied the claim of the workman and took up a plea that the employment of such drivers was under a scheme by which they are, in reality, the employee of the Executive concerned and not that of the bank; none was examined to prove the scheme. No evidence was led to establish that the vouchers produced by the workman were either not genunine or did not pertain to the wages paid to the workman. No explanation by way of evidence was produced to show for what purpose the workman's signature were taken in the Register maintained by the bank. In this factual background, the question of workman further proving his case does not arise because there was no challenge at all to his evidence by way of rebuttal by the bank.” 11. Apex Court has also considered case of ST Hadimani in case of Essen Deinki v/s. Rajeev Kumar reported in 2003 SCC L/S 13. Relevant discussion made by apex court in para 13 is reproduced as under : SCA/3919/2001 26/69 JUDGMENT “ It is against this order of the Labour Court that the High Court was approached under Article 227 of the Constitution and the latter relying upon the decision of this Court in American Express [(1985) 4 SCC 71: 1985 SCC (L&S) 940] came to a conclusion that the workman in fact has completed 240 days of service and as such allowed writ petition and did set aside the award of the Labour Court wih a direction that the petitioner be reinstated in service with full back wages. It