1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4753/1996 Deputy Engineer,Panzan Dam Left Canal Sub Division No.1 Mehunbara, Tq. Chalisgaon District Jalgaon. .. PETITIONER [ORIG.FIRST PARTY] VERSUS 1] Pratap S/o Waman Rajput Age-major, Occ-Service R/o At Post Khadisim, Tq.Chalisgaon,Dist.Jalgaon .. RESPONDENT NO.1 [ORIG.SECOND PARTY] 2] The Presiding Officer, Labour Court, Jalgaon District Jalgaon. .. RESPONDENT NO.2 ... Shri D.R.Shelke, Adv.for petitioner Shri P.R.Patil,Adv.for R.1. ... 2 CORAM : R.K.DESHPANDE,J. DATE :09/12/2009 ORAL JUDGMENT : 1] This petition has been preferred by the employer, challenging the judgment and award dated 27/6/1996 passed by learned Presiding Officer, Labour Court, Jalgaon in Reference (IDA) No.17/1990, whereby oral termination dated 21/2/1985 of the respondent has been quashed and set aside and the employer is directed to reinstate the respondent no.1 employee in service with continuity of service w.e.f. 21/2/1985, however, the prayer for grant of backwages has been rejected. Rule was granted in this matter on 1/9/1998 and there was no interim order passed. The facts are as under : 2] The respondent no.1 employee in his statement of claim filed in Reference (IDA) No.17/1990, alleged that he was in service of the petitioner employer from 21/12/1983 as daily wager till the date of his oral termination on 21/2/1985. However, his services were terminated without issuing notice or paying salary in lieu of notice w.e.f. 21/2/1985. He alleged that the termination was effected without payment of 3 compensation and hence it was a case of retrenchment in violation of Section 25(f) of the Industrial Disputes Act. He therefore, claimed for setting aside of his termination and reinstatement and backwages in service. 3] The petitioner employer opposed the name of the respondent no. 1 and filed written statement. It was denied that the petitioner worked continuously for 240 days preceding the date of termination from service. According to the petitioner- employer, the respondent was daily wager and was employed as and when the work was available. It was further submitted that the respondent-employee did not complete 240 days continuous service in the employment and hence it was neither a retrenchment nor there was any question of violation of Section 25(f) of the Industrial Disputes Act, as alleged. 4] The respondent employee examined himself and relied upon certificate at Exh.U-6 issued by the employer certifying that the respondent no.1 employee was employed in sub division on R.M. Roll during the period from 21/12/1983 to 20/2/1985. The employer also relied upon application dated 23/4/1996 (Exh.U-5) filed by the respondent employee for production of documents by employer. Since 4 the employer failed to produce the documents on record inspite of order of the Court dated 14/5/1996, it was urged that an adverse inference came to be drawn to the effect that the employee has completed continuous 240 days service prior to the date of termination from service. 5] The petitioner employer examined one Shri Suryakant Vasudeo Patil, Sub Divisional Engineer, to produce on record the extract of attendance of the respondent-employee. He has also produced on record the copies of the order of appointment at Exh.C-5, which are at Exh.”A” to “E”. On the basis of these documents, it was urged that the employee has failed to establish that he had completed continuous 240 days service in the employment of the petitioner. So far as the production of record was concerned, it was the stand that the record was destroyed and therefore, the same could not be produced. 6] The learned Presiding Officer, Labour Court, Jalgaon, by his award dated 27/6/1996, passed in Reference (IDA) No.17/1990, held that the employee had established that he had worked continuously for 240 days preceding the date of his termination from service. This was the finding on the basis of the certificate Exh-U-6 and the adverse 5 inference drawn for non production of documents inspite of order dated 14/5/1996. The labour Court held that undisputedly, the provisions of Section 25(f) of the Industrial Distputes Act were not followed and hence set aside the oral order of termination dated 21/2/1985 and granted reinstatement to the respondent-employer without backwages. 7] Shri Shelke, the learned counsel appearing for the petitioner employer, urged that the production of proof to establish that the employee has completed 240 days continuous service preceding the date of his termination is on the employee. According to him, the employee has not only failed to plead that he has completed 240 days continuous service, preceding the date of termination but has also failed to produce any evidence on record to substantiate such appeal. According to him, the certificate relied upon at Exh.U-6, was a character certificate and could not be used to record a finding that the employee had completed 240 days continuous service during the period from 21/12/1983 to 20/2/1985. He has further urged that the labour Court has erred in drawing an adverse inference for non- production of documents. The petitioner employer had opposed the application for production of documents on the ground that as per the rules, the documents are destroyed after expiry of stipulated period 6 and therefore, the labour Court had passed a specific order on 14/5/1996 as under : “Heard. First party to produce the documents if available with them.” 8] According to him, no documents were available with the petitioner employer, there was no question of producing the same on record and at any rate, no adverse inference could have been drawn for mere non-production of documents. The learned counsel in support of his plea, relied upon the following judgments of the Apex Court : 1] (2005) 5 S.C.C. 100 Manager, Reserve Bank of India, BangaloreV/s S.Mani and others. 2] (2005) 8 S.C.C. 750 Surendranagar District Panchayat V/s Dahyabhai Amarsingh. 3] (2009) 1 S.C.C. 20 Kanpur Electricity Supply Company Limited V/s Shamim Mirza. 9] Shri P.R.Patil, the learned counsel appearing for the respondent- employee, on the other hand, urged that the labour Court has recorded a finding of fact that the employee has completed continuous 240 days 7 employment preceding the date of his termination from service. Admittedly, there was no compliance of the provisions of Section 25(f) of the Industrial Disputes Act and hence the finding was recorded that termination was illegal, which was followed by an order of reinstatement. He further urged that the labour Court has refused to grant backwages to the employee after passing an order of reinstatement and hence the said order does not require any interference under Article 226 and 227 of the Constitution of India. He has further urged that the finding of the labour Court is based upon the certificate at Exh-U-6 and the adverse inference drawn for non production of documents. The order according to him, is therefore, legal and proper. 10] The matter was initially listed before this Court for final hearing on 16/11/2009. After hearing the parties at length, it was found necessary to call for the record and proceedings of the labour Court and hence order was passed calling for the record and proceeding on 16/11/2009. Accordingly, record and proceedings are received. The parties have gone through it and have thereafter, addressed this Court. 11] The perusal of the orders of appointment produced by the 8 employer which are for the period from 24/11/1983 to 20/11/1984 clearly indicate that the first appointment of the petitioner was for the period from 24/11/1983 to 20/12/1983. The second order was for the period from 21/12/1983 to 20/1/1984. The third order was for the period from 20/5/1984 to 20/6/1984. The forth order of appointment was for the period from 21/9/1984 to 20/10/1984 and the fifth order of appointment was for the period from 21/10/1984 to 20/11/1984. The abstract of attendance register is also produced on record, which shows the absentee of the employee. These documents nowhere indicate that the petitioner had completed continuous 240 days employment with the employer prior to the date of his termination from service. These documents appear to have been ignored by the labour Court. 12] The certificate at Exh.U-6 relied upon by the labour Court was issued for the purposes of displaying the character of the employee and it cannot, therefore, be construed as an evidence about continuous working of the petitioner. No doubt, the certificate states that the petitioner was employed during the period from 21/12/1983 to 20/2/1985. However, this does not mean that the employee has continuously worked for 240 days. It merely shows the working period 9 of the employee with the petitioner. The said certificate cannot, therefore, be an evidence of the fact that the employer has completed 240 days continuous service with the petitioner prior to the date of his termination. 13] The Labour Court has drawn an adverse inference against the petitioner employer for non production of the record. The record available with the employer was produced before the Labour Court, as pointed out earlier. It is in the form of orders of appointment and the extract of attendance register. This is supported by oral evidence of the witness Suryakant Vasudeo Patil. The order passed by the labour Court directing the petitioner employer to produce the documents if those are available with him. The stand of the employer was clear that the documents have been destroyed as per the Rules. Hence, the Labour Court committed an error in drawing an adverse inference on the basis of non production of documents by the employer. The employee has not produced on record any material, to substantiate his plea that he has worked continuously for 240 days immediately preceding the date of his termination from service. Undisputedly, the burden of proof lies on the employee to establish the fact. Mere statement of the employee in his affidavit or in examination in chief, is 10 not sufficient to establish the said fact. Thus, the employee has totally failed in proving his case. 14] The learned counsel for the petitioner employer has relied upon the decision of the Apex Court reported in (2005) 8 S.C.C. 750 Surendranagar District Panchayat V/s Dahyabhai Amarsingh. It was a case where the labour Court drew an adverse inference for non production of muster roll and salary register from the year 1976 to 1986 and held that the workman had completed more than 240 days and therefore, the termination was held to be illegal for non compliance of Section 25(F), 25(G) and 25(H) of the Industrial Disputes Act. The learned Single Judge dismissed the Writ Petition. The Division Bench in Letters Patent Appeal, recorded a finding that the workman under Exh.4 called upon the appellant Panchayat, to produce his salary register and muster roll for 1976 to 1986 and also to produce the seniority list of workman and the same were not produced. The Division Bench held that the Labour Court rightly drew an adverse inference against the appellant employer by holding that the employer had worked 240 days in a year. The Apex Court allowed the Appeal and quashed and set aside the judgment and order passed by the High Court as well as by the Labour Court. Para 18 of the said judgment is reproduced below : 11 “18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non-production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the 12 purpose of Section 25(F) of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25-B(1) of the Act. In the facts and situation and in the light of the law on the subject, we find that the respondent workman is not entitled to the protection or compliance with Section 25-F of the Act before his service was terminated by the employer. As regards non- compliance with Sections 25-G and 25-H suffice it to say that witness Vinod Misra examined by the appellant has stated that no seniority list was maintained by the department of daily-wagers. In the absence of regular employment of the workmen, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so-called seniority, no relief could be given to him for non compliance with provisions of the Act. The Courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the Court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved.” 13 The aforesaid judgment in my view, clearly supports the case of the employer that the Court below ought not to have drawn adverse inference in the facts of the present case as the workman had totally failed to establish that he had worked for 240 days in a year and there was no finding by Labour Court that there existed any such record. 15] The second judgment relied upon by the learned counsel for the petitioner employer is reported in (2005) 5 S.C.C. 100 Manager, Reserve Bank of India Bangalore V/s S. Mani and others. The Industrial Court had passed an award holding the termination as illegal and granting reinstatement with full backwages in service. The learned Single Judge of the High Court dismissed the Writ Petition. However, in writ Appeal, the Division Bench modified the award partly in respect of back wages. The Industrial Court had recorded a finding that the workman had completed 240 days continuous service in a year, by drawing an adverse inference for non production of attendance register. The Apex Court held that the employee had not produced any evidence on record to show that he had completed 240 days continuous service and therefore, it was held that the Tribunal was erred in drawing an adverse inference. This judgment also supports the case of the employer. 14 16] The learned counsel for the employee relied upon the decision of the Apex Court reported in (1976) 4 S.C.C. 222 M/s Hindustan Steel Ltd. V/s The Presiding Officer, Labour Court, Orissa and others. T he said judgment was delivered on an unamended provision of Section 2(OO) regarding retrenchment and the same is of no relevance to the facts of the present case. Similarly, the learned counsel relied upon another decision of the Apex Court reported in (2009) 1 S.C.C. 20 Kanpur Electricity Supply Company Limited V/s Shamim Mirza. In this case, an adverse inference was also drawn for non production of record, however, there was no sufficient evidence on record on the basis of which a finding was recorded that the workman had discharged his burden of establishing that he has completed 240 days continuous service in a year. The Court also recorded a finding that no evidence was led by the employer in rebuttal. Hence, the said decision is not applicable to the facts of this case. 17] In the result, Writ Petition is allowed. The award passed by the Labour Court on 27/6/1996 in Reference (IDA) No.17/1990 is quashed and set aside. The Reference (IDA) No.17/1990 is answered in the 15 negative and the claim of the respondent-employee is dismissed. There shall be no order as to costs. [R.K.DESHPANDE,J.] umg/wp4753-1996