? 2& :^< HIGHCOURTOFCHHATTISGARHATBILASPUR DB,: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Prashant Kumarnflishra Writ Appeal No.128 of 2009 Jagdeo Ram Sen versus State of M.P. (now State of Chhattisgarh) and others JUDGMENT FOR CONSIDERATJON Sd//- Prashant Kumar Mishra Judge Hon'fcll&Shri Suni 1 Kumar Sinha, J , u . . Sd/- Sunil Kumar Sinha Judge ^s^- Postfor |A -05-2011 Sd/- Prashant Kumar Mishra [ Judge ^-Sa^as-^iSuSS yy HIGH COURTOF CHHATTISGARH ATBILASPUR D.B.: Hon'bleShri Justice Synil Kumar Sinha and Upn'ble^hnJusticePrashantKumarMishra Appellant Respondents WritARpeal No.128 of 2009 versys 1. 2. 3. 4. 5. Jagdeo Ram Sen, S/o Manbodh, aged about 43 years, R/o Gangrel, Tahsil Dhamtari, District Dhamtari (CG) State of M.P. (now State of Chhattisgarh), through Collector, Raipur (CG) The S.D.O., Mahanadi Reservoir, P.M.L. Sub-Division, Rudri Post Rudri, Dhamtari, District Dhamtari (CG) Executive Engineer, Pairi High Dam Division Rudri, Post Rudri DistrietDhamtari(CG) Presiding Officer, Labour Court, Raipur(CG) State Industrial Court, Bench Raipur (CG) Present: Shri Satyendra Sahu, counsel forthe appellant. Shri U.N.S.Deo, Government Advocate for the State/respondents No.1 to3. Writ Appeal under Seetion 2(1) ofthe Chhattisaarh Hiah Court (Apisealjo Division Bench) Act JUDGMENT (Delivered on /2- May, 201 1) Per Prashant KumarMishra, J.: The instant writ appeal under Seetion2(1) ofthe Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (hencefori:h 'the Act, 2006') hasbeen preferred to challenge the order passed by the learned Single Judge allowing the writ petition preferred by '\^- . . . . . . : • . respondents No.1 to 3 herein thereby setting aside the order passed frv ':'^^' Bfcsai^^ '&" ! • : • \,^iwsyi-h !yffi°-"";^ ili... • ^•^Sts ••„ ^ ^ls.-"' ^y '"'iiawrf''' by the Labour Court on 7-7-2001 (Annexure A-5) and the appellate order passed by the Industrial Court on 24-9-2001 (Annexure A-6), whereby the appellant/workman's application under Section 31 of the Chhattisgarh Industrial Reiations Act, 1960 (henceforth 'the Act, 1960') has been allowed directing his reinstatement with 50% back wages. 2. Facts of the case, briefly stated, are that the appellant preferred application under Section 31(c) of theAt, 1960 before the Labour Court seeking reinstatement in service and back wages on the pleadings inter alia that he was appointed as permanent Chowkidar in the office of Sub-Divisional Officer, Water Management Sub-Division No.9, Gangrel on 1-1-1991 where he continued to work till 31-12-1995. However, by oral orders of the Executive Engineer/respondent No.3 herein, he was transferred to the office of Sub-Divisional Officer, Mahanadi Reservoir/respondent No.2 herein. The said respondent No.2 disengaged him from service on 20-8- 1996 by oral orders on the ground that the muster roll system has been abolished. 3. It was specifically pleaded in the application that the applicant was paid salary on 'A' Roll and 1-1 R, however, he was later on shifted to muster roll for which the applicant is not responsible and that he has worked fdr more than 240 days during the preceding 12 months and as such his retrenchment is illegal as thesame has been made without payment of retrenchment compensation which is violative of provisionscontained in Section 25 F of the Industrial Disputes Act, )T^47 (henceforth 'the Act, 1947'). The respondents No.1 to 3 \uw.I.U..I... -^^!SiASii:.;^:S^g^^^'^^Sl&t :p% "^. '^^ 3 (hereinafter referred to as 'the employer')submitted its reply and denied that the appellant was appointed as permanent Chowkidar. It wasspecifically pleaded that the appellant was engaged on daily wages and that he was not transferred by oral orders of the Executive Engineer and in fact he has not worked with the employer after 31-12-1995. It was also denied in specific terms that the appellant has worked for more than 240 days in a calendar year immediately preceding the day of submission of application before the Labour Court. 4. Before the Labour Court, the workman examined himself and made oral statement that he continued towork from 1-1-1991 to 31- 12-1995 and thereafter he was transferred in the office of Sub- Divisional Officer,Mahanadi Reservoirfrom 1-1-1996, where he worked till 20-8-1996. However, he did not produee any document like paymentslip/salary slip or muster roll or letter of appointment ete. to substantiate his oral statement that he has worked for more than 240 days in a calendar year. 5. From the order passed by the Labour Court, it would appear that the employer has also examined Shri K.C.Agne, the Sub- Divisional Officer, in support ofthe defences raised by theemployer in its written statement. The Labour Court, while allowing the application preferred by the workman and granting order of reinstatement with 50% backwages, has only observed that the witness examined by the employer has demonstrated ignorance about the workman's engagementfrom 1-1-1991 to 31-12-1995, lerefore, it is a case where the employer has failed to rebut or e^ J.Ote. 'f ,M!IJ, l^iS'^^ controvert the statement made by the workman regarding his engagement. 6. The Industrial Court, while dismissing the appeal preferred by the employer at the admission stage, has also referred to the said statement madeby the employer's witness. 7. Learned Single Judge has allowed the writ petition preferred by the employer/respondents No.1 to 3 and has held that the Labour Court has allowed the application and has directed order of reinstatement with 5Q% back wages without even recording any finding as to whether the workman has worked for 240 days in the immediately preceding calendar year which is illegal and that the employment is dehorsconstitutional scheme of appointment. 8. In this writ appeal, learned counsel for the appellant has argued that the appellant had sought for the records from the employer by issuing notice which was not produced, therefore, reliance placed by the Labour Court on the appellant's oral testimony should not have been interfered by the learned Single Judge. 9. Per contra, learned counsel for fhe State has supported the order passed by the learned Single Judge and has argued that initial burden to prove that he has worked for 240 days in the immediately preceding calendar year was on the workman which has not been , \' :.¥discharged. :-..lt";?>> f^~\ c^ 10. We have heard learned counsel for the parties at length and perused the documents annexed with the writ petition and in this writ appeal. 11. Except for the oral testimony of the workman, there is nothing in the record to prove that the appellant has worked for-240 days in the immediately preceding calendar year or for that matter at any point of time during his alleged engagement from 1-1-1991 to 19-8- 1996. 12. The law with regard to the onus and burden of proof to show that the workman has completed 240 days of service in the immediately preceding calendar year has been settled by the Supreme Court in catena of decisions. In Manager, Reserve Bank of India, Bangalore vs. S. Mani and others, (2005) 5 SCC 100, following has been held by the Hon'ble Supreme Court in paragraphs 28 and 29: "28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellant on the premise that they have failed to prove their plea of abandonment of service stating: "It is admitted case of the parties that all the first parties under the references CRs Nos. 1 to 11 of 1992 have been appointed by the second party as ticca mazdoors. As per the first parties, they had worked continuously from April 1980 to December 1982. But the second party had denied the abovesaid claim of continuous service of the first parties on the ground that the first parties has not been appointed ^as regular workmen but they were working only as Rl u .lil.. «3iai ^^^s^;' ~^%?'" dflA. ^^^ lte:5'S'!!31,Jf ^. i^./' "*>&3 temporary part-time workers as ticca mazdoor and their services were required whenever necessity arose that too on the leave vacancies of regular employees. But as strongly contended by the counsel for the first party, since the second party had denied the abovesaid claim ofcontinuous period of service, it is for the second party to prove through the records available with them as the relevant records could be available only with the second party." 29. The Tribunal, therefore, accepted that the appellant had denied the respondents' claim as regards their continuous service." 13. The principle regarding onus and burden of proof has been reiterated in similar terms by the Hon'ble Supreme Court in Batala Coop. Sugar Mills Ltd. vs. Sowaran Singh, (2005) 8 SCC 481 and yet again in Surendranagar District Panchayat vs.Dahyabhai Amarsinh, JT 2005 (9) SC 54, wherein thefollowing has been held in paragraph 19 thus (only relevant part is extracted hereunder): "19. In the light of the aforesaid, it was necessary for the workman to produce the relevant materialrto prove that he has actuallyworked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence theworkman 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 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 ^ndertaken with his employer. Therefore, we are of the t:; ^- •:^ - ? 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 belowhave wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Courtwas confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial DisputesAct. ..................." 14. When the obtaining factual matrix is considered in the light of the law laid down by the Hon'ble Supreme Court in the above mentioned judgments, it is to be seen that but for the self serving statement made by the, workman, there is absolutely no other evidence on the record which would satisfy the test laid down by the Hon'ble Supreme Court regarding discharge of initial burden by the workman to prove that he has worked for 240 days in the immediately preceding calendar year. The Labour Court as well as the Industrial Court have passed the orders in a very laconic and perfunetory manner without even recording a finding regardingthe workman having worked for 240 days in the immediately preceding calendar year. Before passing any order of reinstatement, it is necessary for the Labour Court to record specific finding with regard '' to the workman having worked for 240 days in the immediately preceding calendar year. In the absence of such finding, the order/award passed by the Labour Court and the appellate order of the Industrial Court have rightly been set aside by the learned Single Sd^- prashantKumarMishr. 'e ' »al-[«. .^vss^ y>as'^ Gopal 15. In view of the above, this Court does not find any substance in this writ appeal, which fails and is accordingly dismissed; Sdt- Sunil Kumar Sinha Judge prastiatt£aarM^hra Judge V.-i 1 tn s»-