SCA/10226/2007 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10226 of 2007 With SPECIAL CIVIL APPLICATION No. 10176 of 2007 With SPECIAL CIVIL APPLICATION No. 10227 of 2007 With SPECIAL CIVIL APPLICATION No. 10229 of 2007 With SPECIAL CIVIL APPLICATION No. 10231 of 2007 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 civil judge ? ========================================================= THE STATE OF GUJARAT & 1 - Petitioner(s) Versus VALIBEN SAVJIBHAI - Respondent(s) ========================================================= Appearance : Mr. Hemant Makwana AGP for Petitioner(s) : 1 - 2. None for Respondent(s) : 1, ========================================================= SCA/10226/2007 2/38 JUDGMENT CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 17/04/2007 ORAL ORDER Heard the learned AGP Mr. Hemant Makwana on behalf of the petitioners. In this group of petitions under Article 227 of the Constitution of India, petitioner have challenged the common award passed by the Labour Court Surendranagar in reference no. 130/2000, 131/2000, 132/2000, 133/2000, and 121/2000 dated 28/12/2006 respectively. The Labour Court has set aside termination order of each respondent and granted reinstatement with continuity of service without back wages of interim period. All these references were consolidated with consent of both the parties, therefore, common award has been passed by the Labour Court Surendranagar. Learned AGP Mr. Makwana submitted that the Labour Court has granted reinstatement without back wages with continuity of service. According to him, some of the respondents have completed more than 10 years and in one case references no. 132/2000 respondent has completed three years service. The service of the respondents were terminated orally on 31/8/1985. Learned AGP Mr. Makwana submitted that disputes were raised by the respondents after period of 15 years as per contention raised in para 12 of written statement which is at page 42. Therefore, references are fatal and Labour Court should not have decided the SCA/10226/2007 3/38 JUDGMENT merits of the matter. He also submitted that at page 47, seniority list of 1976 to 1985 vide exh. 14, was produced by the petitioners wherein the name of the respondents are not there. He also submitted that at page 41, para 6 of the reply, the contention has been raised by the petitioners that respondent department is State Government department, therefore, not covered by definition of industry and the I.D. Act 1947 is not applicable. He also submitted that respondent workmen has not produced any document before the Labour Court to prove completion of 240 days and it is the burden on the workmen concerned to prove that he has completed 240 days service and mere oral evidence not supported by documentary evidence can not shift such burden on the employer. He has submitted that the case of the respondents before the Labour Court was that no seniority list was produced or published, the principle of last come first go has not been observed or followed, and certain new employees were recruited by the petitioners. Except this, the learned AGP Mr. Makwana has not made another submission in this group of petitions. I have perused the common Award passed by the Labour Court, Surendranagar. The statements of claim was filed by the respondent workmen before the Labour SCA/10226/2007 4/38 JUDGMENT Court and dispute was referred to for adjudication on 28/9/2000. According to the respondents workmen, they were appointed by the petitioners and completed more then 10 years' service; except in one case 3 years service and completed 240 days continuous service. Eventhough, their services were terminated on 31/8/1985 in violation of Secs. 25 (F) (G) (H) of I.D. Act 1947. After termination of the respondents, new employees were recruited, the seniority list was not published and last come first go principle has been violated, therefore, according to the respondents their termination order is bad. As per para 3 of the of the Award, Labour Court has considered that vide exh. 8 and 10 of the written statement filed by petitioner before the Labour Court, the contention raised by the petitioners before the Labour Court that whatever period where the question of making payment of wages or appears for the days for which workman have not worked does not arise of paying wages or salary and workmen have not remained continue in service and not completed 240 days continuous service. The petitioner has produced seniority list vide exh. 14 dated 29/5/1986. The first seniority list is prepared dated 29/5/1986, on the date on which the workmen were not working with the petitioners. It is necessary to note that service of the respondents were terminated on 31/8/1985 naturally their name may not be in the seniority list dated 29/5/1986. Whether the seniority list was published at the time of SCA/10226/2007 5/38 JUDGMENT termination showing the position of respondents while they were in service and prior to the respondents service or not, there is no answer from the petitioners, but it was placed before the Labour Court pointing out the position of the workmen, those who were in service on 29/5/1986, therefore, name of the respondents were not there, reason is that prior to that service of respondents workmen were terminated by the petitioners. Petitioner should have produced seniority list showing position of respondents prior to their termination. The respondents workmen filed individual affidavit vide exh. 9,10, and 11 in support of the statement of claim and in affidavit, it is pointed out by the respondents workmen that petitioners have not provided muster roll, appointment order, termination order,pay slip and identity card to the respondents merely obtaining the signature in muster roll and wages were paid by the petitioners, these documents are possessed by the petitioners. After their termination they had approached the petitioners on number of occasion, but merely assurance has been given to the respondent, but respondents were not taken in service by the petitioners so from the date of termination till date raising the dispute on the number of occasion respondents approached the petitioner for service. This fact is narrated in affidavit filed by the respondents workmen. In affidavit also it is made clear that dispute has been raised after some time SCA/10226/2007 6/38 JUDGMENT because in between number of occasion respondents approached to the petitioners, but they were not taken in job. In affidavit also it is made clear, that each workman has completed continue service of 240 days in preceding 12 months. Vide exh. 16, witness Mr. Y.S.Shah, Deputy Executive Engineer has filed affidavit. The petitioner has cross examined the workmen by the Advocate. The witness Mr. Y.S.Shah vide exh. 16 submitted that seniority list for the period of 1976 to 1985 produced by the petitioners where respondents name are not reflected and workmen had not produced any evidence in support of their claim, therefore, reference should have to be dismissed. In cross examination, it was pointed out by the witness of the petitioners that he was working since 2004 at Patdi since 2004, he is not having any information for the period of prior to Dec. 2004 the claim of respondents, the seniority list which was published by the petitioners was not brought to the notice of the respondents workmen by the petitioners. He has no knowledge whether workmen have worked earlier on dudhrej-Vana-Malvan Road or not. According to him, he has read reply submitted by the petitioner, who has signed written statement, he is not aware about it. Therefore, also admitted in cross examination that in written statement no dispute has been raised by the petitioners to the effect that workmen were not working with the petitioners. SCA/10226/2007 7/38 JUDGMENT According to him, on record it is not proved that respondents workmen were working with the petitioners. Thereafter, both the learned advocates made submissions before the Labour Court and ultimately Labour Court has framed issued and reason has been given by the Labour Court in respect to issue no. 1. The Labour Court has considered the affidavit and cross examination of the respondents workmen and come to the conclusion that petitioner has not challenged the evidence of the respondents workmen in respect to the continue service, presence mark in muster roll and payment of wages has been made to the respondents workmen. In written statement, only contention was raised that for that period when respondents are not working and not in service, they were not entitled for any amount of wages. The written statement has been produced by the petitioners before this Court which is at page 40, there is no answer given by the petitioners except the document and legal contention in para 12 raised by the petitioners where no averment has been made to deny the factual aspect which has been made by respondents workmen in their statement of claim. The averment made in the submission or claim, if it is not denied in written statement, it amounts to admission of that fact accepted by the petitioners. Therefore, Labour Court has rightly appreciated this fact in its award that petitioner has not raised any contention in written statement in respect to the merits whether the respondents workmen had completed SCA/10226/2007 8/38 JUDGMENT 240 days service or not and whether Sec. 25 (F)(G)(H) has been violated or not. Therefore, Labour Court after considering the submissions made by both the learned advocates come to the conclusion that workmen have completed continue service of 240 days because no documentary evidence were given to the respondents by the petitioner about the payment of wages, muster roll, Identity card, wages slip, appointment order and termination order. So in absence of aforesaid documents how the workmen could prove 240 days continue service, that aspect has been considered by the Labour Court, Surendranagar. The Labour Court has come to the conclusion that petitioner having documentary evidence with him which has been admitted by the petitioner that wages has been paid after obtaining the signature of the respondents workmen and presence were also marked in the presence register, so none of the documents were produced by the petitioner before the Labour Court. The petitioner having the possession of documents muster roll, pay register and presence register, but none of the documents has been produced by the petitioner before the Labour Court. The onus to prove the continue service of 240 days has been discharged by workmen by filing affidavit with cross examination, so onus was shifted upon the employer to dis prove the facts which has been proved by the workmen by proving that workmen had not completed continue service of 240 days continue service by producing relevant original record before the Labour Court. The party who is having original record with him, not disclosed to the Court SCA/10226/2007 9/38 JUDGMENT with supporting the material, then Court has no other option. The affidavit being an evidence which has been cross examined by the petitioner. So burden was discharged by workmen and thereafter, such evidences were not disproved by petitioner by producing material on record and withheld such important original documents from Labour Court. The Labour Court had relied upon the decision of Apex Court in Case of R. M. Yellaty reported in 2005 (9) SCALE page 139. This decision is given by the three Judges of the Apex Court. The Labour Court has also considered that looking to the evidence on record, the petitioner has violated Sec. 25 (F)(G)(H) of the I.D. Act 1947. After the termination of the respondents, new employees were recruited as per the evidence of the workmen and at the time of termination of service on 31/8/1985 last come first go also not observed by the petitioners. The Labour Court has also considered the various decisions relied by both the parties and mainly relied upon the decision of Apex Court in Case of R.M. Yellaty Vs. Assi. Executive Engineer reported in AIR 2006 SC Page 355. In the said decision the Apex Court has considered the case of Range Forest Officer Vs. S.T.Hadimani reported in 2002 (3) SCC page 25. The Apex Court has also considered the case of Banglore Water Supply & Sewerage Board Vs. A. Rajappa reported in AIR 1978 SC page 548 and State of U.P. Vs. Jai Bir Singh reported in 2005 AIR SCW page 2773 and SCA/10226/2007 10/38 JUDGMENT other relating decision including the case of Manager, Reserve Bank of India, Banglore, Vs S. Mani reported in (2005) 5 SCC page 100. The Apex Court has observed in para 17, 18, and 19 which are relevant, therefore, all these paras are quoted as under: “17. Analyzing 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 reapetedly 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 the workmen stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, 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 (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self serving statements SCA/10226/2007 11/38 JUDGMENT 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 production of muster rolls per se without any plea of suppression by the claimant workmen will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down basic principle, namely, that the High Court under Art. 226 of the Constitution will not interefer with the concurrent findings of fact recorded by the labour court unless they are preverse. This exercise will depend upon facts of each case. 18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commnencing from 22/11/1988 to 20/6/1994. This period is the period borne out the certificate (Ex. W1) issued by the former Asstt. Executive Engineer the evidence in rebuttal from the side of the management produce five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex. M4 and Ex. M5, which indicated that the SCA/10226/2007 12/38 JUDGMENT workmen had worked for 43 days during the period 21/1/1994 to 20/2/1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour Court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstance, we are of the view that the Division Bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the Labour Court and confirmed by the learned Single Judge vide order dated 7/6/2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workmen are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workmen was working in SD 1, Athani and Ex. W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani-591304. In the present case, the defence of the management was that although Ex. W1 refers to the period 22/11/1988 to 20/6/1994, the workmen had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the Labour Court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this SCA/10226/2007 13/38 JUDGMENT judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workmen had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the Division Bench of the High Court had erred in interfering with the concurrent findings of fact. 19. Before the concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earner, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of terminations. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper record of the services rendered by the daily wagers; that these records should be signed by the SCA/10226/2007 14/38 JUDGMENT competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and procuniary liability for the Government.” Learned AGP Mr. Makwana submitted that contention of delay has been raised in written statement and contention that petitioner is not industry was also raised in the written statement but Labour Court has not considered it. From the entire award no where such contention was raised before the Labour Court by the petitioner. Merely, raising contention in written statement can not be considered as part of evidence it remain at the stage of pleadings only. The witness of petitioner Mr. Shah has been cross examined vide exh. 16 before the Labour Court. No evidence led in support of the contention which has been raised by the petitioner in written statement about the delay and industry. No submissions were made by the petitioner before the Labour Court about the delay and industry. Therefore, Labour Court has not examined these two contentions because same were not subsequently pressed by the petitioner before the Labour Court. Learned AGP Mr. Makwana has admitted that such contentions were not raised before the Labour Court by the petitioner about the delay and Industry except in written statement. No evidence was led in support of contention of industry and delay by the petitioner SCA/10226/2007 15/38 JUDGMENT before the Labour Court. In such circumstance for the first time this Court can not allow the petitioner to raise these two contentions before this Court which involved mixed questions of facts and law. In view of the Apex Court decision reported in 2003 AIR SCW 2616 in case of Transmission Corporation of A.P. Ltd. And others v. P. Surya Bhagwan, and decision of Gujarat High Court reported in 2003 Labour and Industrial Cases 1793, Guj, in case of Executive Engineer, PWD, Rajkot v. Prakash Laxmidas Gajjar, the contention of the delay in raising of an industrial dispute and that the petitioner is not industry can not be accepted by this Court simply on the ground that same were not raised before the Labour Court. Apart from that, according to the workmen after termination they were approaching the petitioner on number of occasion and assurance were also given by the petitioner that they will be taken back in service, but ultimately respondents were not taken back in service. Therefore, dispute was raised and after a period of 15 years. The petitioner has not challenged the order of reference and no such contention was raised before the Conciliation officer, therefore, these contentions are rejected. The Apex Court has observed in the case of Maharashtra State Mining Corp. Vs. SUNIL, son of Pundikarao Pathak, Appeal (civil) 2228 of 2006, reported in AIR 2006 SC 1923. Relevant para 4 is quoted as under: SCA/10226/2007 16/38 JUDGMENT “4. In the writ petition the respondent had taken several grounds for challenging the dismissal order for example, that the relevant documents were not supplied, that he was not allowed to cross examine the witnesses, that he was not allowed to engage a lawyer, etc. However, a perusal of para 6 of the impugned judgment of the High Court shows that the writ petitioner did not press any of the grounds. The only ground which was pressed was that the order of dismissal was passed by the Managing Director of the Appellant, who had no authority or power to do so, as the same was vested in the Board of Directors of the appellent. In view of the fact that the respondent had not pressed these grounds before the High Court, we can not allow him to urge these points before us. The only issue which the High Court was called upon to decide was whether the removal of the respondent from service was by a competent authority.” Similar aspect has also observed by the Apex Court in case of Orrissa Industrial Infrastructure Development Corp. Vs. Ashok Kumar Singh and Ors, reported in 2006 SCC (L&S) page 999, relevant Head note is quoted as under: “Regularisation- Of muster roll employees of appellant Corporation – High Court's SCA/10226/2007 17/38 JUDGMENT direction for regularization within specified time of the remaining workers who had not so far been regularized – Plea of backdoor entry, non existence of vacancy and ban on creation of posts issued by the State Government., raised on behalf of appellant before Supreme Court – No such pleas raised before High Court, not any counter affidavit filed before High Court by appellant who was respondent in the writ petition preferred by the employees – Held on facts, appellant can not be permitted to raise such pleas before Supreme Court – No interference of Supreme Court under Art. 136 with the directions issued by High Court called for – However, operation of those directions having been stayed by Supreme Court, appellant to be given a reasonable time to regularize the remaining employees – Constitution of India, Art. 136 – New plea – Not allowed.” And in case of Anwarul Haq Vs. State of Uttar Pradesh, reported in AIR 2005 SC 2382, relevant observations made by the Apex Court is quoted as under: “12. We find that the trial Court has analysed in great detail the evidence of eye witnesses, including that of PW-1, the injured and, therefore, there is no scope for intereferance. The plea that the weapon used was not a dangerous weapon had never SCA/10226/2007 18/38 JUDGMENT been urged before the trial Court or the High Court. Whether weapon is a dangerous weapon or not has to be gauzed only on the factual basis. As there was no challenge on this