1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPL. APPL. WRIT No. 503 of 2008 BHAGWAN DAS V/S STATE & ORS. Date of Judgment : 7.8.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. DK PARIHAR, for the appellant / petitioner BY THE COURT :(PER HON'BLE GUPTA,J.) Heard learned counsel for the appellant. The learned Single Judge by the impugned order has allowed the writ petition, and has set aside the award made by the learned Labour Court, challenging that, this appeal has been filed by the workman. In very brief, the necessary facts are, that on the workman being retrenched, and on challenge to validity of termination being made, an award was passed by the learned Labour Court, ordering reinstatement, on 20.8.2001. That award was challenged by way of writ petition before this Court, and the matter ultimately traveled to the Hon'ble Supreme Court, and the Hon'ble Supreme Court allowed the 2 appeal of the employer, vide judgment dt. 13.9.2004, and remitted the matter back to the learned Labour Court, to decide the matter afresh, considering the facts, and come to the definite conclusion, as to whether the workman had worked for 240 days, during the period claimed. A reading of the judgment of the Hon'ble Supreme Court shows, that the matter happened to be required to be remitted, because the Hon'ble Supreme Court found, that the learned Labour Court and the High Court were in error in placing the burden on the employer, rather in drawing inference. It was precisely found by the Hon'ble Supreme Court, that non-production of muster roll for a particular period was not sufficient for the labour court to hold, that the workman had worked for 240 days, as claimed. It was also found by the Hon'ble Supreme Court, that it was for the claimant to lead evidence to show, that he had in fact worked upto 240 days in the year preceding his termination. Likewise, it was also found, that an affidavit has been filed by the workman, being only his own statement, which is in his favour, and that cannot be regarded as sufficient evidence, for any court or tribunal, to come to the conclusion, that in fact the claimant had worked for 240 days in a year. Of course, the Hon'ble Supreme Court made reference to its earlier judgment in Range Forest Officer Vs. S.T. Hadimani, reported in 2002(3) SCC-25. Thus, the remitting of the matter by the Hon'ble Supreme Court is, on account of the above aspects, decided inter- 3 parties, by the Hon'ble Supreme Court. After remittance, the learned Labour Court again passed the award on 3.2.2005, reinstating the workman with 30% back wages, and this time, while passing the award, the learned Labour Court again drew adverse inference, for non-production of the muster- rolls, and took the period of those muster rolls, as the period served by the workman. It is against that award that writ petition was filed by the employer, and the learned Single Judge quoted the relevant para of the judgment inter- parties dated 13.9.2004, and has found, that the learned Judge of Labour Court has passed the award, not only without proper appreciation of all the relevant facts, including the fact, regarding passing of the order dated 7.1.2005, rejecting the application of the petitioner, for permitting them to place complete material on record, while drawing adverse inference, and noticed, that in view of the judgment of Hon'ble Apex Court, burden to prove 240 days working lies on the employee, but then the Labour Court has failed to note this aspect. Of course, the learned Single Judge has also relied upon the judgment of the Hon'ble Supreme Court, in Range Forest Officer Vs. S.T. Hidimani's case, as referred in the order of Hon'ble the Supreme Court dated 13.9.2004, and thus, it was found, that the award passed by the learned Labour Court is perverse. 4 Assailing the impugned judgment, it is contended by the learned counsel for the appellant, that after the judgment dt. 13.9.2004, in S.T. Hidimani's case, the Hon'ble Supreme Court in M/s. Sriram Industrial Enterprises Ltd. Vs. Mahak Singh, reported in AIR 2007 SC-1370, has specifically watered down the judgment dt. 13.9.2004 in S.T. Hidimani's case, holding, that adverse inference can be drawn against the employer. In that view of the matter, when the legal position is settled, the learned Labour Court has rightly drawn adverse inference against the employer, and has recorded a finding of fact, about the workman having worked for more than 240 days, and that finding could not be interfered. Learned counsel has also referred to, and relied upon the provisions of Section 25-D of the Industrial Disputes Act, which relates to the requirement of maintenance of muster rolls of the workman, and submitted, that these provisions have not at all been considered by the Hon'ble Supreme Court, in any of the judgments. We have considered the submissions. In our view, may be, that in M/s. Sriram Industrial Enterprises Ltd.'s case, Hon'ble the Supreme court has held, that the views expressed in Range Forest Officer's case were watered, but then, so far the case in hand is concerned, the judgment dt. 13.9.2004 was a judgment inter-parties, i.e. between the parties, and that judgment has never been recalled. In the judgment dt. 13.9.2004, the Hon'ble Supreme Court has positively found, as noticed above, that non- 5 production of muster-roll for a particular period was not sufficient for the labour court to hold that the workman had worked for 240 days, as claimed, and that, the affidavit is only his own statement, which is in his favour, and that cannot be regarded as sufficient evidence for any court or tribunal, to come to the conclusion, that in fact, the claimant had worked for 240 days in a year. In view of the remand having been made by recording aforesaid findings, and thereafter no evidence having been led by the workman, the fact did remain, that neither any proof of receipt of salary or wages for 240 days was produced on record, nor any sufficient reliable evidence was produced on record before the learned Labour Court, and the learned Labour Court has again passed the award by drawing adverse inference for non-production of the concerned muster roll, even ignoring the positive conclusions recorded in the judgment dt. 13.9.2004. In our view in view of the inter parties judgment between the parties, it was not open to the learned Labour Court, to arrive at the conclusion, in the manner done. Thus, we do not find any error in the judgment of learned Single Judge, finding the award of the learned Labour Court, as perverse. 6 The appeal thus has no force, and is dismissed summarily. (KISHAN SWAROOP CHAUDHARI),J. (N P GUPTA),J. /Sushil/