I^?^ iu^^^^= -•3 ^; -/,1^- IN THE HIGH COURT OF JtTDICATUElE. AT BH.ASPUR WRIT PETITION N0'lvhm PETITIONER: - SECRETARY, KRISHI UPAJ MANDI, SAMITI RAJNADGAON [C.G.] VERSUS ..1. RESPONDENTS: - .. l.PRESIDING OFFICER, O/ ..l..*5^ l LABOUR COURT,RAJNANDGAON ^ 1Jr--^\^''v 2ANJORI LAL DEVANGAN .)v<%4%\'" •' R/OSUKULDAIHAN, DISTT-RAJNADGAON [C.G.j o.^->^>" •^K^ .-•*''; <-^ 01 ^ Writ petition under art.226/227 of the constitution of India for issuanee of a suitabk writ, orders or direction. The above named petitioner most humbly and respectfuily begs to submit the petition under: - mGH COURT OF CHiIATTISGARH, BILASPUR W.P.No.1225/2001 Secretary, Krishi Upaj Mandi, Rajnandgaon Vs. Presiding Officer, Labour Court Rajnandgaon & omollier Y.^ ORDER i^y^' ^ ^ )^ ^ :s^ ^ >^< =\^ '^ 's^" ^y Postfor r2<01.2006 Sd/- Sunil Kumar Sinha Judge fflGH COURT OF CHHATTISGARH, BILA^PUR W.P.No.1225/2001 Secretary, Krishi Upaj Mandi, Rajnandgaon Vs. Presiding Officer, Labour Court Rajnandgaon A another Shri Rajiv Shrivastava, counsel for the petitioner. Shri Ashok Vaishnav, counsel for responctent no.2. ORbER ( 1^,01.2006) SUNIL KUMAR SINHA, J (1) The secretary, Krishi Upqj Mandi Samiti, Rqjncindgaon has challenged the validity of award dated 11.5.2001 passed by the Labour Court R<ynand9aon in case No.28/I.D. Act/Reference/95. This cward was pcessed on a reference being made by the Deputy Labour Commissioner on 03.01.1995 under section 10 of the Industrial Disputes Act 1947 on th® folbwiry terms: "^rr ^ sM^t ^n^r ^FFf ^i ^crr y-Tcto?q ^ ^cr ^RT t ? ?iR ";it?rt ^r tef ^l^ctl ^^f t, ^T ^T ^T ^t fNfcRTT ^ ^TT ^^^ ^THT ^nf^?" ? (2) The cldm of 'the respondent No.2 before the Labwr Court was thot he hod worked in the estcfolishment of the petitioner GS an Electrician for Q continuous period of 2 ^ yecrs ond all of a sudden, he was removed from service on 16.6.1992. The contention was that he had assumed the stotus of a permanent labour and his services could not hwe been terminated without following the necessary procedure laid down under the lcw as neither a show cause notice wos issued to him nor there hcri been any departmental enquiry /— —1 -2- in this re9ard. His contention was that for the first time, he was appointed as daily wager on 01.12.1990 and thereafter he continued on the said post upto 16.6.1992 and then only the removal took place, therefore, in fact, he had worked for more thcai 240 doys and his termination without followjn9 the provisions of section 25-F of the Industrial Disputes Act 1947 was ille9al. This cldm of respondent no.2 was resisted by the petitioner before the Labour Court by filing a written statement and it was pleaded that in fact, the respondent no.2 was appointed as a ddly wa9er vide order dated 01.12.1990 (Ex.P.2) and 31.4.1991 (Ex.P.4) for the period of 89 days on Collectorate rote and the works allotted to him were the seasonal works and he was so called by the Mandi occasionally when such work was avdlable in the particulcr season and after completion of the work, he was removed and in this manner he was not ot all continued after 16.6.1992. In fact, it was denied by the petitioner before the Labour Court that the respondent no.2 continuously worked for 240 days, on accouttf of which, his removal on 16.6.1992 wos illegal. ^^^ (3) At the evidence. in support of his contention, the respondent no.2 examined himself and hcd filed 7 exhibits in which Ex.P.l was his application dated 20.11.1990, Ex.P.2 was an order of appointment dated 1.12.1990 on the doily wa^es for a period of 89 days, Ex.P.3 was also an order of cppointment for 89 days w.e.f. 04.1.1991 and Ex.P.4 was tiie last order of appointment issued to the respondent no.2 for a further period of 89 doys commencing from 04.4.1991 and thereafter, two other documents vide Ex.P.5 and P.6 were filed to shcw that he was albwed sorne work in between this period and Ex.P.7 is the representation which appears to be filed by him on 24.7.1992 after* the alleged removal on 16.6.1992. The mancgement dso examined his witness namely Chwdra Sekhar Sdiu and thereafter, the learned Judge of the Labour Court after heariry the parties allowed the claim of respondent no.2 and wswered the reference in his fwour holding that his removal from service is declared to be illegal retrenchment ond respondent no.2 wces directed to be reinstated Jn service on the post of Electrician with 75% of back-wages. -3> (4) Learned counsel for the petitioner submitted that respondent no.2 could not estdblish that he had worked for more than 240 days in precedin9 one year prior to his alleged retrenchment so as to claim a benefit of section 25-F of the Industrial Oisputes <4ct. Hence, the <wwd passed by the Labour Coirt is apparently bcri in law and the same be set aside. (5) Per contra, leorned coiNisel for respondent no.2 argued that on the bcisis of records avdlcfole before the Labour Court. it was estcdblished that respondent no.2 had worked for more than 240 days in the preceding yecr prior to his retrenchment and the Labour Court has rjghtly passed the award in his fwour. It was also contended that if the muster rotls and other records re9<rdin9 the service of respondent no.2 wass not produced before the Labour Coirt by the management, the Labour Court hod rightly based the award on the statement of respondent no.2. (6) I hwe heard learned counsel for the parties and have also perused the records of the writ petition as well as the tabour court. (7) In the matter of Reawe Forest Offieer -Vs- S.T. HarffVHml. C2002) 3 SCC 25 the Lobour Court in its awcrd held that the services of the respondent was terminated without poyin9 the retrenchment compensation. It also held that the affidovit of the wwkmm wos sufficient to prove that he had worked for 240 days in a yew. The Supreme Court held that jt was the case of the claimant that he had so worked but this cldm was denied by the appellant. It was then for the cloimwt to lead evidence to show that he had in fact worked for 240 doys in the yeor preceding his termination. Filing of an affidwit is only his own statement in his favour md that cannot be regorded as sufficient evidence for any court or tnbunal to corne to the conclusion that a workman had, jn fact, worked for 240 days in a year. No proof of receipt of satcry or wcges for 240 doys or order or record of appointment or engcyement for that period was produced by the workman. On this ground alone, the aw<rd is lioble to be set aside. ^- (8) The same position was again reiterated in the matter of Rc^asthcm State San^anayar S. Mttls Ltd.. 'Vs- State of Retjasthw and awlher. 2004 (8) SCC 161 ond jt was held by the Apex Court that it was for the cldmant workman to show that he had in fact wwked for 240 dcys in the year preceding his termination. A mere stcrt'ement in this regard on the port of the workmw cannot be regarded as suffjcient evidence. Similar position was also laid down in the matter of Mwiichwl Cmvwa^w. FariitebaiS -V- Slri N'was. (2004) 8 SCC 195. The Apex Court agdn took the similar view in the matter of ^ialtwein. OH mdl Natwwl Sas CmwivwHw Ltel. <S anoliwr -Vs- Shyenml Cheav^a Bhowmfk. 20^8) Swtwne 213. (9) In the matter of M.P.Beetiieify Bowf -Vs- Harhwn. (2004) 8 SC€246. the Supreme Court- held that the initial burden of estoblishing the factum of continuous work for 240 d<ys in a ye<r rests with the worknian and the above burden having not been discharged ond the Labour1 C<Hirt having held so in the said niatter, the industriat Coirt and the Hyh Court- erred in basing an order of reinstatement solely on m adver» inference drcwn erroneously. Reference was made to the case of Municipal Corporation, Fcridabad (Supra) wherein the Apex Courl- disagreed with the Hi^h Courfs view of drcwing an criverse inference in regard to non production of certain relevant documents- (10) If we excmine the pre^nt case in the light of the obove decision rendered by the Apex Court, it would appear that in fact, respomlent no.2 on the basis of his own statement and 7 documents filed in support of his contention, could not estdblish that he had worked for a continuous period of 240 doys in a yecr preceding to the date of alleged retrenchment i.e., 16.6.1992. Admittedly, the document Ex.P.2 dated 1.12.1990 would show that respondent no.2 was 9iven an cypointment as a doify woger for a period of 89 doys c<wnmencin9 from 01.12.19TO. Thereafter, vide Ex.P.3 dated 01.1.1991, another order wos issued showing his appointment on ddly wcqes for a period of 89 days commencing from 4.1.1991 and lastly <m order dated 13.4.1991 (Ex.P.4) was again issued to respondent no.2 for a period of 89 days commencin9 from 4.4.1991. Aftw this, no appojntment orders were y -s- ^^ issued to respondent no.2. The respondent ro.2 continued after the period of last order of the appoJntment dt.13.4.1991 (B<.P.4) uplo the dote of his alleged retrenchment is not establi^ed by him <an this case. No documentary or oral evidence have been produced by him in this regcrd. Lecrmd counsel for respondent no.2 referred to the evidence of the witness exanined on behalf of the managenient and subinitted 1+iat since this witness has admitted that respondent no.2 had worked till 16.6.1992, therefore, if the total period of work from the first date of Qppointment i.e., from OL12.i9W till 16.6.1992 would be calculated it would come as more than 240 dflys and the view taken by the Laboir Courl' is just and proper. This contention raised by le<rned counsel for respondent no.2 cannot be wcepted. Though the witness for the petitioner namely Chandra sekhar Sdiu h<^ crimitted that respondent no.2 was not kept after 16.6.1992, but he had no where stated that respondent no.2 had continuously worked upto 16.6.1992 from the first date of hjs appointment i.e., from 01.12.1990. His evidence would show that c^ and when necessity arose, the respondent no.2 was called by the nianagement and was given certain seasonal work. In pora no.24 of his statement, he has denied the suggestion given by the counsel for respondent no.2 that respondent no.2 had worked continuously for inore than six months or 240 doys prior to his olle^ed retrenchment. (11) Learned counsel for respondent no.2 had also relied on two decisions reported w (2001) 10 SCC 606 fDeep Chamhw -Vs- Slwte fff U.P. an<l wwlfier) wul 2000 (2) M.P.LJ 405( Sukhia Q Sushma -w- ffainbhliv). So far as the first decision of the Apex Court in the matter of Deep Chandra is concerned, it is on the principles 1+iat if the retrenchment Js affected without complyjng with the requirement of section 25-F, the employee has to be reinstated to his origjnal service on the same tenns and conditions on which he was working earlier. There is no dispute in the present case like the above one. This is not a case in which the retrenchtnent is affected without complying with the requirement of section 25-F though the sanie was necessitated under tiie law. Rather, jt is a case in which there is no necessity of complying with the requirement of section 25-F because the respondent no.2 could not estoblish that he had worked fw more thcui -^- 240 days in a ye<r preceding to the date of his alte9ed retpenchment and the law referred to by counsel for respondent no.2 \s distin9ui{Shable on this point as being not applicable in this cose. (12) Re9ordin9 the second decision relied by learned counsel for respondent no.2. in the matter of Sukhia @ Sushma (supr'a), o single judge of the M.P.Hi9h Cburt, relying on the decision of the Apex Court, held that where a pcrty had not produced the best evidence, which coutd have thrown light on the i&sue in controversy, the Court ought to drow an adverse inference against him notwithstanding that onus of proof did not lie on him. The party connot rely on abstract doctrine of omis of proof or on the fc^t that he was not called i^on to produce same. Para 15 of Ihe decision of the Supreme Court in the matter of Munidpal Corporation, F<ridabad (Su{»*a)is referable. It has been held by the Apex Court in the said dedsion that a court of law even in a case where provisions of the B^idence Act opply, moy presume or may not presume that if Q party despite pofisession of the best evidence had not produced the same, it would hove gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption <» to adverse inference for non-production of evidence is alwoys optional md one of the factors which Js required to be taken into cor^ideration is the bock9round of facts involved in the lis. The presumption, thus. is not obligatory because notwithstandin9 the intentional non-production, other circunistmces moy exist upon which such intentional non-production moy be found to be justifiable on some reasonable grounds. The Apex Court held that m the said case the Tribunal did not draw any odverse inference against the appellcnt <md it was within its jurisdjction to do so partjcularly hwing regard to the nature of evidence adduced by the respondent. In the present case also, there was no direction from the court to produce any evidence pertaining to the service rendered by respondent m.2 to his empbyer and non production of documents pertaining to service of respwident no.2 would not automatjcatty render to draw adverse inference Ggainst it. The ar9uments advonced by le<med counsel for respondent no.2, that too for the first time before this Court, for drawing adverse inference against the ^^s.^^^^^ 7- employer to hold that the employee had worked for more thm 240 doys on account of non-production of records of the employee, suom^tu, pflrticularjy when there were no directions of the Court. connot be accepted. (13) Therefore, even if we take the entire period as the period of continuous work done by the respondent no.2 since his first date of appointment i.e., 01.12.1990 till the period of his lcest appointment letter issued vide Ex.P.4 on 13.4.1991 which would end on 03.7.1991, it is not established that he hcal worked for 240 doys in the preceding year from the date of his alleged retrenchment, and the <ward passed by the Labour Court is not in accordance with law and the same deserves to be set aside. (14) In the result, the petition is dlowed, The impugned cw<rd passed by the Labour* Court on 11.5.2001 is set ceide. However, in the facts and circumstances of thjs case, th& porties are directed to bear their own costs. Sd/- Sunil Kumar Sinha Judge /Rao/