THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.19453 of 1998 Dated 12-02-2008 Between: N.Chinnavadu. ..... PETITIONER AND The Industrial Tribunal-cum-Labour Court, Visakhapatnam rep. By its Chairman & Presiding Officer Hyderabad and others. .....RESPONDENTS THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.19453 of 1998 O R D E R: Aggrieved by the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No.229 of 1993 dated 27-12-1997, whereby an award was passed holding that the workman was not entitled to any relief, the present writ petition is filed. Petitioner-workman claims to have been engaged with the second respondent during the period 1971 to 1984. He invoked the jurisdiction of the Industrial Tribunal by way of an application under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’) in the year 1993. The Industrial Tribunal framed two issues (i) whether the industrial dispute was maintainable and (ii) whether the workman was entitled to the relief prayed for. On Issue No.1, the Industrial Tribunal held that Vamsadhara Project of the Government of A.P. was not an industry. It relied on the judgment of the Supreme Court in The Executive Engineer, State of Karnataka v. K.Somasetty[1] in arriving at a finding. It is necessary to note that subsequently, a three Judges Bench of the Supreme Court in General Manager, Telecom v. S.Srinivas Rao[2] overruled its earlier judgments in Sub-Divisional Inspector of Posts v. Theyyam Joseph[3] and Bombay Telephone Canteen Employees Association v. Union of India[4] on the ground that they were not correctly decided in view of the ratio laid down by a Seven Judges Bench of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A.Rajappa[5]. I, therefore, agree with the submission of Sri V.Sudhakar Reddy, learned counsel for the petitioner-workman, that the second respondent is an industry under Section 2(j) of the Act. Accordingly, issue No.1 is held in favour of the petitioner-workman and the award to that extent is liable to be set aside. The Industrial Tribunal did not dismiss the I.D. on this issue, but went on to record a finding on the issue whether the workman was entitled to the relief sought for. The Industrial Tribunal drew an adverse inference against the second respondent-Management for not producing muster rolls for the years from 1971 till 1984 though the workman had specifically pleaded that he was terminated at the end of the year 1984. The Industrial Tribunal held that it was mandatory to maintain muster rolls under Section 25-D of the Act and the seniority list under Rule 79 of the A.P.I.D. Rules and, since these were not maintained properly, an adverse inference was required to be drawn against the Management and it must be held that the workman had established that he had worked for more than 240 days during the one year period preceding the date of his termination. It is well settled, as held in a catena of judgments of the Supreme Court, in Range Forest Officer v. S.T.Hadimini[6] Manager, Reserve Bank of India, Bangalore v. S.Mani[7] and Municipal Corporation, Faridabad v. Siri Niwas[8], that the burden of proof is on the workman to establish that he had put in the minimum required 240 days of service during the 12 month period preceding his termination. It is also well settled that this burden is discharged only upon the workman adducing cogent evidence, both oral and documentary, (S.T.Hadimani6, Siri Niwas8), that mere affidavits or self-serving statements made by the 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 (S.T.Hadimani6), that it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer (Surendranagar District Panchayat v. Gangben Laljibhai9), that a party, in order to get benefit of the provisions contained in Section 114 III. (g) of the Evidence Act, must place some evidence in support of his case. (Siri Niwas8), that 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. Such presumption 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. (Siri Niwas8) Sri V.Sudhakar Reddy, learned counsel for the petitioner- workman, would, however, place reliance on the judgments of the Supreme Court in R.M.Yellati v. Assistant Executive Engineer10 and Sriram Industrial Enterprises Ltd. v. Mahak Singh11 to contend that failure on the part of the Management to produce muster rolls would justify the Labour Court drawing an adverse inference against the respondent-employer. Whether, in the facts of the present case, the Labour Court was justified in drawing an adverse inference, and in shifting the onus from the workman to the employer is again a matter which ought to be considered by the Tribunal itself. While several contentions on merits have been raised before this Court by Sri V.Sudhakar Reddy, learned counsel for the petitioner-workman to substantiate his contention that the petitioner-workman, had, indeed, completed 240 days service in the 12 month period preceding his termination, it is necessary to note that none of these contentions have been examined by the Industrial Tribunal. The Industrial Tribunal has also not examined the consequences of an employee’s services being terminated under Section 25-F of the Industrial Disputes Act and the nature of the relief to be granted. The questions whether an employee should be reinstated with back wages, whether the delay in invoking the jurisdiction of the Industrial Tribunal would disentitle the workman to the relief sought for, whether he should be denied a portion of the back wages or whether compensation in lieu of reinstatement would suffice are all matters which the Industrial Tribunal is required to consider even if it were to come to the conclusion that the petitioner had put in 240 days of service in the 12 month period preceding his termination. Since these questions have not been examined by the Industrial Tribunal, I consider it appropriate, while setting aside the award, to remand the matter back to the Industrial Tribunal for its consideration afresh in accordance with law. Sri V.Sudhakar Reddy, learned counsel for the petitioner- workman, would seek permission of this Court to adduce further evidence on behalf of the petitioner-workman. It is made clear that it is open to the Industrial Tribunal-cum-Labour Court to examine the request for adducing evidence afresh both by the petitioner and the second respondent and, thereafter, consider the matter in accordance with law and pass a reasoned award. Since the dispute relates to the year 1993, and nearly 15 years has elapsed since then, it is but appropriate that the Industrial Tribunal-cum-Labour Court passes an award, as expeditiously as possible, in any event not later than four months from the date of receipt of a copy of this order. The Writ Petition is, accordingly, disposed of. However, in the circumstances, without costs. ______________ 12-02-2008 Note:Furnish copy within one week (b/o) usd [1] 1977(6) Supreme 13 [2] AIR 1998 SCW 270 [3] 199(8) SCC 489 [4] 1997(6) SCC 723 [5] 1978(2) SCC 213 [6] 2002(3) SCC 25 [7] 2005(5) SCC 100 [8] 2004(8) SCC 195 9 2006(9) SCC 132 10 2006(1) SCC 106 11 2007(4) SCC 94