J—E AMENDED PETITION INTHB HON'BLE HIGH COVRTQF CHHATTISGARH AT BILASPUR PETITIONER Applicant W.P.fL) No. 797 of 2011 Sukhraj, S/o. Akalhu Kanwar, aged about 44 Years, R/o. Post Itar, Tahsil Khairagarh, District Rajnandgaon (C.G.) Versus RESPONDENT Non-Applicant Divisional Porest Officer, General Forest Division Khairagarh, District Rajnandgaon (C.G.) WRIT PETITION UNDER ARTICLE^26 OF THE CONSTITUTION OF INDIA ^ 1 EHS! • liiIfi llli'fil 1111: Efi'l;;';: ^i E81!1 ;BE 'IIB Bi HKf t'f. '•''•' Eii: ^. ^ AF^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (L) N0. 797 OF 2011 PETITTONER/ Sukhraj APPLICANT ' RESPONDENT/ NON-APPLICANT Versus Divisional Forest Officer Postfor pronouncementofthe orders on the //'davofApril, 2011 Sd/- Satish K. Agnihotri Judge ^^-Asa^^ . •li^, '~-y,i.\. c K Bi !i HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (U N0. 797 OF 2011 PETITIONER/ Sukhraj APPLICANT RESPONDENT/ NON-APPLICANT Versus Divisional Forest Officer (Writ petitions under Article 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri H.B. Agrawal, Sr. Advooate with Ms. Sareena Khan, Advocate forthe petitioner. Shri A.V. Sridhar, Panel Lawyerforthe State. (Delivered on this // dayofApril, 2011) 1. Heard learned counsel for the parties. 2. Challenge in this petition is to the award dated 20-7-2010 (Annexure - P/6) passed by the Labour Court, Rajnandgaon, in case No.95/10 Act Ref./2008 (Sukhrajv. Divisional Forest Officer) on thp ground that the Labour Court ought to have held that the petitioner/employee had worked for 240 days in the preceding year on the basis of inference drawn from the fact that the respondent/ employer has not produced the muster roll register to controvert the statement of the petitioner that he had worked for 240 days. Further, alternatively, after quashing of the impugned award the case may be remitted backto the Labour Courtto reconsider again to record the finding that the petitioner had worked for 240 days in the preceding year. 3. The petitioner, without disclosing the fact that asto how and when his service was engaged with the respondent department and '^ I 1 -,.s ifcAlSSh. 1 fsKuf:3^s:fl:fr'^: ^ ''SiS'S^''''' tS "^/ ^ ""'^.-^. ""^f-WJ'K-WS:^^" ^ B!li 6. when the service of the petitioner was disengaged, filed the instant writ petition. The petitioner raised a dispute before the Deputy Labour Commissioner, Government of Chhattisgarh. The Deputy Labour Commissioner, in turn, referred the dispute to the following effect: "Whether the removal of Sukhraj, S/o Akhalhu is legal and proper ? If yes, the petitioner is entitled to what relief?" The Labour Court, by theimpugned award dated 20-7-2010, after having considered the claims arid the counter claims of the parties came tothe conclusion that the petitioner has failed to establish that he had worked for 240 days in a year. The petitioner did not produce any other witness or co-workers or any other documents, may be, payment slip or others to establish his case except that the employer records the attendance in the muster roll and the same should be produced and on that basis the petitioner may be held that he has worked for 240 days. The Labour Court dismissed the reference made by the Deputy Labour Commissioner on the ground that since the petitioner has failed to establish that he h'ad worked for 240 days, thus consequential question about compliance of the provisions of Section 25 ofthe Industrial Dispute Act, 1947 (for short "the ID Act, 1947") does notarise. Shri Agrawal, learned Senior Advocate with Ms. Sareena Khan, learned Advocate appearing for the petitioner, would submit that under the provisions of Section 114 (g) of the Indian Evidence Act, 1872 (for short "the Act, 1872"), if the employer fails to !TliT1 ...// 1^' produce the muster roll, the benefit must be inferred in favour ofthe employee i.e. the petitioner in the case on hand, thus, the impugned awqrd is bad in law. 7. On the other hand, Shri Sridhar, learned Panel Lawyer appearing for the State, wouldsubmit that the employee hadnot produced any doeument in support of his contention that he had ever demanded for attendance register in the enquiry. 8, The petitioner has made vague statement that he worked during the period from 1988 to 1999 regularly thus, he had completed more than 240 days in a year. In the deposition, the petitioner has stated that he-was not a regular employee. The petitioner further submitted that he was removed from the service in the year1991, but he had referred the dispute only after 2-3 years. 9. Pandurang Sao Ji, a retired employee of the Forest Department, was examined at his instance. He deposed that during his service when he was posted at Khairagarh in the year 1978 he recorded the attendance of the petitioner and he had worked for more than 240 days. On a query, Pandurang Sao Ji clearly declined that he had any document in supportof the statement. He alsofailed to disclose any document to indicate that he was posted at Gadai range after 1978. His deposition was not creditworthy. 10. Entire case of the petitioner is that since the employer had failed to produce the muster roll, the deposition ofthe petitioner, which was notsupported by documents and other credible witnesses, may be accepted as final and the Labour ought to have held that the petitioner had worked for240 days. il 11. Thoughon 14^7-2009, the Labour Court directed the employer to produce the muster roll and pay-vouchers in respect of the petitioner for the period 1988-1999, but on the basis of the same adverse inference cannot be granted in favour of the petitioner in industrial dispute matters. 12. Contention of Shri Agrawal that the petitioner ought to have been given the benefit of provisions of Section 114 (g) of the Act, 1872 is misplaced, as the provisions of the Act, 1872 is not strictly applicable to the industrial disputes or the disciplinary proceedings. 13. In Gopa/ Krishnaji Ketkarv. Mohamed Haji Latifand Others , relied upon by the learned counsel for the petitioner, wherein the issue involved was under the provisionsof Section 18 of the Public Trust Act,the Supreme Court held as under: "6. But Shah, J., speaking for the Court, stafecf; 'The observations of the Judicial CQmmittee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such-a rule is inconsistent with lllustration (g) of Section 114 of the Evidence Aot, and a/so an impressive body of authority.' 14. In BSNL and Others v. Mahesh Chancf, Vne Qup'reme Court after having considered several decisions held as under: "8. On e question of whether the respondent had worked continuously for 240 days in a calendar year the Tribunal and the High Court have wrongly placed the onus on the employer to prove the negative. This is : clearly contrary tothe decision of this Court. 'AIR 1968 SC 1413 2 (2008) 3 SCC474 ^S!A«iit^, II ,//^>- I -^%^:^-t'^ ^^ • ^3, V "sr^ "ili6>.».-'<',s8I! 9. "7. In a large number of cases the position of law relating to the onus to be discharged has been delineated. In Range Forest Officer v. S. T. Hadimani it was held as fo/fows: fSCC p.26, paras 2-3) '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 nof accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10-8-1998 came fo the conclusion that the sewice 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 afRdavit of the workman was sufficjent to prove that he had worked for 240 days in a year. 3. For the view we are taking, it is not necessary togo into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar. 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 wasthe case ofthe 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 ofan affidavit is only hisown statement in his favour arid that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, infact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 cfays 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. However, Mr Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today.' IBiB»-.., 1,s Uj .5 1 .0 5 U) <6 .1.« '0 II s^ !°;£ w'io* ®Q: £>;I® -Q <?i^ != SCOlli c's M tB dj §a'.S us; •2§n .S£<° col5 c _ro'(B (OQ; Q. li.5 •S.SB. ^li s^l9 °°SS, ^.£8' "1 s"; (B Q. tB cro ® 4-.o <b <u co <6 ®<B"0 C!..'P^,'0 s5|^r§ ri-cis^^ ^il^iji 11<ISS <B£ (O•c s ^n'! S.E^^§,§- S|is s^^s k. **»< ^^ 't^J 0(000 .£cc: .02 ffi ^•SLi::::§§: IS1ilS5 ll^iill iSi^1^ £h~ Sco II §8 w w 5^'g a:-c: 5 s^' <d -o (O« .•§s':fi ^:l-SN'l ° 5 sS 0 SB Q.S < S,(0'(l) o <u S CB'O <->•?: <i> c:i=-? 1^1: <B m's <., ^i TO ;Pi! 15.1! §^1. gn 5i ®s'*:; -5 £-6 l^-!. s"°.s ^il^§§^i ? §11'^^^ lljl 1111 ss-S. 1 :C: ®!B ^>^«i o ^ illiil •?.& ^t^; fc.&<6 £S'£ (6 ^f •^- °° c "? 'p ? -® &IE'S 'Oxu'S S£§ t6 -o c6« (0-0 1.1 P tO'3 w£ _^§ £.g^'(B -o" sIIII C-Q B-i? <3£ '+d (p SI.R •S-? :Q'S|ito(6 1?S >- !a u CP O ^IS co Ct.oo'2. w l^1-! s^s '•s liSii U ?K'e:'t~ B P g ~v- lils's 1^1 5 11 .03 Ol o'- a;a:-o •S S? -^ ~~ B ltj-1 ro\i:-c5 g "N s:c §'§& lli.S^ CS <u ffl'6£ 4-o a> 43 <»«* oc <D ^i^ .e-cc §•£ S^s s &^3 .S''c: .o •S-tO <9 3— -E::o.ra &-S Q) 0) .C to^: (B .t: t: &-Q"~ sp.ei&'; ? .^ 'fc' ^^' 1"'1^£11 i§<3^1^ ^l^sS^ c0: 1^1 .c <n Sll5 -Q^'::.c liiS is!flti (C ^ § s % N-?§ II5 .w :s <B c-2 (OS 0)*+». a°. s?'Si'si S-Sgc^ 0)<0 co s-ro 5iS III ^:§s .t0 ^•6 CP o e <- y °•<.§ s''^ ro <u <* - " 2S c Q.-S rp §e SO 0) <tl F: (6 ®i: li^l '•2 c •y ? o -c 9^ !IIf3^! lli^itsl lij -2w o ro •^.Q-.C (U ^-§ ^ 11^11 3 '" -5 °0~ 0> oow I1£ tO .R ^ <q S'S' <6 (6 •C Q. It^llj l?ilS1 iB-i-.^: ^-S w o-3 <u 5 5<^^§i ®t: 11) O 3<s~ t0 -;" (B -c co •5 5 g m illl i-g's c c ^ v> S c s>II (O C <o <S .(6.SS ^•g 9) ^ttisS 'Ss,^ ii^ ^ '^3 CO ^|85' .?^ uE^ 8.1 ^l s.jllS c .0 .3's §.-sg ^•t^ (6 [5 Q.fc Q.-C O) ¥ J^ .f- »«) gss^s^^^^^s^s^- '.;S-L^^^^R^'^L?^jSj:^-i'L-.-L.; ^\ ,t/.;^L~^-'.ibil^'-'w~ ' ] - •.•~^.'^^^^I^-~^..•', G however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non- production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent. "' 10. In RBI v. S. Mani athree-Judge Bench of thisCourt again considered the matter and held that the initial burden of proof was on the workman to show that he had completed 240 days of service. The Tribunal's view that the burden was on the employer was heldto be erroneous. In Batala Coop. Sugar Mills Ltd. 'v. Sowaran SinghJt was held as follows: (SCC pp.484-85, para 13) '13. So far as the question of onus regarding working for more than 240 days is concemed, as obsewed by this Court in Range Forest Officer v. S.T. Hadimani the onus is on the workman.' The position was examined in detail in Surendranagar District Panchayat v. Dahyabhai Amarsinh and the view expressed in Range Forest Officer, Siri Niwas, M.P. Electricity Board cases was reiterated. 11. In ...R.M.Yellattiv.Asstt. Executive Engineer the decisions referred toaboye were rioted and it was held as follows: (SCC p.116, para 17) '17. Analysing 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 theworkman stepping in the witness box. This burden is i~l ^:.' II discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily- wage eamers, 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 pehod, 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-pmduction of muster rolls perse without any plea of suppression by the claimantworkman 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 underArticle 226 ofthe Constitution 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. '" 15. This Court in Chhattisgarh State Electricity Board & Another v. Industrial Court, Raipur(C.G.)&Anothei^, observedas under : "13. Applying the above well settled phnciple of law to the facts of the present case, it cannot be held that it is a case of retrenchment covered undersection 25F of the Industrial Disputes Aot, 1947 as the respondent No.2/employee has failed to prove that he has worked for more than 240 days in a preceding year. Secondly, the identical issue raised before the Court which was dismissed earlier by order dated 30.09.99, again the same /ssue cannot be raised." 16. Applying the well settled principles of law to'the factsof the present case, as aforestated, the writ petition is meritless. 17. Resultantly, thewrit petition fails and is hereby dismissed. There shall be no order asto costs. _— !fe,; 2009 (2) CGLJ 264 Sd/- Satish K; Agnihotri Judge iisi 11; 1!B ff,, "^ :i;6 ^iT^r^^S^H' —""•^