* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO. 29583 OF 1997 AND WRIT PETITION NO. 32874 OF 1997 W.P.29583 OF 1997 % 05.06.2007 # The Executive Engineer, APSIDC Division, Eluru and another ….. Petitioner Vs. $ Saragadam Koteswara Rao and another ….Respondents. ! Counsel for the Petitioner: Sri T.Nageswara Rao ^ Counsel for the Respondent: Sri Pitchaiah < Gist: >Head Note ? Citations: [1] 1985(4) SCC 201 2 2004(8) SCC 195 3AIR 2005 SC 2179 4 4006(1) SCC 337 5 2006(9) SCC 132 6 2006(1) SCC 106 7 2005(12) SCC 181 8 2005(10) SCC 792 9 1949(1) LLJ 254 10 1951(2) LLJ 314 111959 (2) LLJ 676 [1] 12971 (1) LLJ 233 131981(1) LLJ386 142006(1) ALD 201. 15 2004(1) An.W.R. 67 (DB) 16(2002) 3 SCC 25 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 29583 OF 1997 AND WRIT PETITION NO. 32874 OF 1997 COMMON ORDER: W.P. No. 29583 of 1997 was filed to quash the award of the Labour Court, Guntur, in I.D. No. 668 of 1991 dated 13.07.1997, whereby the order of termination of the respondent-workman was set aside and the petitioner herein was directed to reinstate him with continuity of service but without back wages. W.P. No. 32874 of 1997 is filed to quash the award of the Labour Court, Guntur, in I.D. No. 625 of 1991 dated 17.03.1997, whereby the order terminating the services of the respondent-workman was set aside and the petitioner herein was directed to reinstate him with continuity of service but without back wages. Since common questions arise for consideration in both these writ petitions, and as the Executive Engineer, Eluru Division of the A.P.S.S.I.D.C. is the petitioner in both these cases, both the writ petitions were heard together and are now being disposed of by a common order. It would suffice if the facts in W.P. No. 29583 of 1997 are taken note of. In the claim statement filed before the Labour Court, the respondent-workman contended that he had joined as a pump operator in Nallajerla Sub Division-I under the control of Deputy Executive Engineer, A.P.S.I.D.C. on 01.04.1980, that he worked continuously from 01-04-1980 to 20-05-1981 and that on 20-05- 1981 he was orally informed by the Sub-Division Incharge that his services were terminated. The respondent-workman contended that since no notice of termination was given by the petitioner herein, and no compensation was paid, termination of his services was in violation of Section 25-F of the Industrial Disputes Act. The workman contended that he had waited all these years with the fond hope that he would be taken back into service and, since the Corporation did not choose to reinstate him, he had approached the Labour Court and there were no latches on his part. In the counter affidavit filed before the Tribunal by the petitioner herein, the allegations made in the claim statement were denied. It is stated that the services of the respondent-workman were utilized temporarily for a limited purpose and for a specific work, that, after completion of the work for which he was engaged, his services were no longer required and his engagement, therefore, came to an end, that the respondent-workman was not promised employment in future, that he had voluntarily left the place of work and had abstained from duty and that he had no right to seek any relief. Petitioners contended that the respondent- workman had never represented his case for the last one decade. In the counter affidavit, it is also stated that the petitioner- Corporation takes up schemes, that in the process of execution, both skilled and unskilled persons were employed and, no sooner the scheme was completed, persons who were engaged for the said scheme were no longer treated as workers under the Corporation and that the respondent-workman did not have any right to agitate claiming any sort of employment, either permanent or temporary, in the petitioner-Corporation. According to the petitioners such persons were engaged only temporarily on daily wages till completion of the scheme and, soon after completion of the work, their services were dispensed with. Petitioners also stated that the respondent-workman did not put up continuous service as required under the law and that there was no obligation on their part to issue any notice or pay wages in lieu of notice since the workman was not an employee of the Corporation. It was also stated that the services rendered by the respondent- workman was purely temporary and intermittent, that the work did not require full time employment, that the workman was not appointed against any permanent post and that he himself had abstained from duties and had no vested right to claim reinstatement. It is also stated that the claimant never worked as pump operator as alleged in the petition at their Nallejarla sub- division I. In his rejoinder, the respondent-workman reiterated that he had worked for 240 days immediately prior to his termination. Before the Labour Court, the respondent-workman examined himself as WW.1 and another worker as WW.2. He marked a xerox copy of the representation, submitted by a group of employees to the Vice-Chairman of the Corporation, as Ex.W.1 and the postal acknowledgements as Exs.W.2 to W.5. On behalf of the petitioner-employer, MWs.1 and 2 were examined and Exs.M.1 to M.13 were marked. The Labour Court held that, as per the entire evidence, it was clear that the respondent-workman was taken as a pump operator by the Corporation and that he had discharged his duties as a pump operator for a period of not less than 240 days continuously. The Labour Court relied on the admission of MW.1, in chief-examination, that the respondent-workman had worked for more than 240 days in Nallajerla Sub-Division. The Labour Court also noted the contention of the Corporation that the workman did not work continuously but had worked for more than 240 days in spells and observed that, if that was the case, the Corporation ought to have established their case by filing necessary documents. The Labour Court held that the documents were available with the corporation, as admitted by MW.1 in cross- examination with regard to the payment register and cash register, but the Corporation did not choose to produce the said books. The Labour Court noted that a petition had been filed by the respondent-workman requesting for a direction to the petitioner- Corporation to produce the muster rolls but in spite of an order they were not produced in Court. The Labour Court held that, as rightly contended on behalf of the workman, an adverse inference was required to be drawn against the petitioner-Corporation for non-production of the documents and that, if the said documents were produced they would clearly establish that the workman had worked for more than 240 days in the petitioner-Corporation. With regards the contention that the workman had voluntarily abandoned his job, the labour Court held that it was for the employer to take necessary action to conduct an enquiry into his absence. The Labour Court noted the contention of the petitioner- management that the financial position of the corporation was bad on account of non-supply of funds by the Government and that the bore-wells had been handed over to the respective beneficiaries and, as the petitioner corporation was not in a position to reinstate the respondent-workman, it was a fit case for payment of compensation. The Labour Court held that this particular plea had not been taken by the petitioner-corporation in its counter- affidavit. The Labour Court, on noting Ex.M-3 the order of the Government dated 08.11.1991 rejecting the request of the petitioner-corporation to regularize the services of its employees, held that it was not as if there was no work for the respondent- workman as the corporation had itself requested the Government to regularize their services. The Labour Court noted that bore- wells were still being supervised by the regular staff of the corporation and it was not as if the corporation had been wound up or closed down. Regarding financial loss suffered by the corporation, the Labour Court held that there was no convincing and authentic evidence placed by the corporation and that, under such circumstances, since termination of the services of the respondent-workman was in violation of Section 25-F of the Industrial Disputes Act, as neither one month’s notice was given nor compensation paid, he was entitled for reinstatement with continuity of service. With regards payment of back wages, the Labour Court held that there was an unexplained delay of more than a decade on the part of the respondent-workman in approaching the Labour Court for redressal and, just before filing of the I.D, a collective representation was sent in the year 1991 though their services were terminated in the year 1981 and that, while this abnormal delay may not be a ground for throwing out the I.D, it was a circumstance to be taken into consideration for payment of back wages. In such circumstances the Labour Court held that the respondent-workman was not entitled for back wages. The Labour Court held that there was an employer-employee relationship between the petitioner-management and the respondent-workman, that the services of the workman was illegally terminated and accordingly passed an award directing his reinstatement with continuity of service but without back wages. Sri Pitchaiah, learned counsel appearing on behalf of Sri P. Raghavender Reddy, learned counsel for the respondent- workman, would submit that an omnibus denial and an evasive reply in the counter denying the specific allegation that the first respondent-workman had worked continuously from 01-04-1980 till 20-05-1981 cannot be treated as a denial since, under Order VIII Rule 3 of the Code of Civil Procedure, it is not sufficient for the defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth. Learned counsel would contend that, since the petitioner had admitted that the workman was employed in the corporation, in support of their plea that the workman was engaged intermittently they ought to have given specific details of the period during which his services were engaged. Learned counsel would contend that, despite an application being filed to have the records produced in this regard and despite a specific direction from the Labour Court to the Corporation to produce them, these records were not produced and the only course left open to the Labour Court was to draw an adverse inference against the Corporation. Learned counsel would contend that the very fact that a counter affidavit was filed would show that the records were available as a counter affidavit could only have been filed on the basis of the records. According to the learned counsel, the oral evidence of the respondent-workman was supported by a co-worker and was sufficient to discharge the initial burden of proof cast on him to establish that he had worked for more than 240 days in the 12 month period preceding his termination and since the burden, thereafter, shifted on the employer, it was for the petitioner herein to let in evidence, oral and documentary, to show that the respondent-workman had not worked for 240 days in the 12 month period preceding his termination. Learned counsel would contend that, while the employer had examined two witnesses with regards factors such as financial loss caused to the Corporation etc, no documentary evidence was let in to show that the respondent- workman had not worked for 240 days in the 12 month period preceding his termination. Learned counsel would rely on H.D. Singh Vs. Reserve Bank of India[1], Municipal Corporation, Faridabad Vs. Siri Niwas[2], Manager, R.B.I., Bangalore Vs. S. Mani[3], ONGC Ltd. Vs. Shyamal Chandra Bhowmik[4], Surendranagar District Panchayat Vs. Gangaben Laljibhai[5], R.M. Yellatti Vs. Assistant Executive Engineer[6], Executive Engineer Vs. Lekh Raj[7] and Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari[8]. As to whether the Labour Court should have examined the question, whether the respondent-workman should have been paid compensation in lieu of reinstatement in the light of the evidence of MW.2 that the Corporation was running in losses, Sri Pitchaiah, learned counsel for the respondent-workman, would contend that it was for the employer to plead and prove such special circumstances. Learned counsel would contend that, in the absence of a specific plea in the counter affidavit that the Corporation had suffered huge losses, no evidence could be let in. Learned counsel would contend that the special circumstances, which the employer was required to plead and prove, to deny the relief of reinstatement to a workman, was a mixed question of fact and law and, unless such special circumstances were brought to the notice of the Labour Court by the employer, failure by the Labour Court to examine the question whether compensation ought to have been awarded in lieu of reinstatement was not such an error necessitating interference under Article 226 of the Constitution of India. Learned counsel would place reliance on Western India Automobile Association Vs. Industrial Tribunal, Bombay[9], Buckingham & Carnatic Mills Ltd. Vs. Workers[10], Punjab National Bank Vs. Workmen[11], The Management of Panitola Tea Estate Vs. Workmen[12], Surendra Kumar Verma Vs. Central Government Industrial Tribunal, New Delhi[13]. Sri T. Nageswara Rao, learned counsel for the petitioner- Corporation, would submit that, since the petitioner had brought to the notice of the Labour Court that the Corporation was continuously running in losses, the Labour Court ought to have examined whether compensation could have been awarded in lieu of reinstatement. Learned counsel would place reliance on Md. Hyder Vs. Industrial Tribunal-II, Hyderabad[14]. According to the Learned Counsel since the onus was on the claimant workman to establish that he worked for more than 240 days in the 12 month period preceding his termination, and not on the employer, the Labour Court, in drawing an adverse inference for non-production of documentary evidence by the petitioner-management, had placed the burden of proof on the employer. Learned counsel would contend that where two conflicting judgments of co-ordinate benches of the Supreme Court are brought to the notice of the High Court, the High Court should follow the judgment which appeared to it to state the law more elaborately and more accurately. Learned counsel would place reliance in this regard on a Division Bench judgment of this Court in Special Deputy Collector, Land Acquisition, Steel Plant, Visakhapatnam Vs. Narla Gopalakrishnaiah[15]. The first question which necessitates examination is whether the finding of the Labour Court, that the respondent- workman has put in the requisite 240 days of service in the 12 month period preceding his termination, is based on the evidence on record. Before examining this question it is, however, necessary to note the judgments cited across the bar and the principles enunciated therein. I n H.D. Singh1, the appellant was a tikka mazdoor employed by the Reserve Bank of India. He was selected to work on daily wages and, on days when no work was given to him, he had to wait till noon for the Bank to decide whether or not work was available on such days. While he was not given any work after July 1986, no written order was given terminating his services. Since his representation seeking redressal was of no avail, the petitioner approached the Assistant Commissioner of Labour and thereafter the dispute, whether the action of the management is striking off his name from the list of approved tikka mazdoors was justified or not, was referred for adjudication to the Tribunal. When the matter came up in appeal before the Supreme Court the bank initially contended that the attendance register for the month of July, 1976 had been destroyed. Thereafter, a supplemental affidavit was filed giving details of the number of days the appellant had worked. The appellant charged the bank with having tampered the records and wanted the relevant records to be filed but they were not produced. It was in such circumstances that, the Supreme Court held that in the absence of any evidence to the contrary, an inference should be drawn that the appellant had worked for more than 240 days from July 1975 to July, 1976. It is in this factual matrix that the Supreme Court observed: “……That takes us to the question whether the appellant had qualified himself to sustain his claim to the benefits of Section 25-F. The appellant, as we will presently see, has given the number of days on which he worked, in his claim statement. The first respondent Bank arranged posting Tikka Mazdoors, like the appellant, in such a manner that they were denied the benefits of the Industrial Disputes Act. Since the first respondent Bank disputed the fact that the appellant had worked for sufficient number of days to entitle him to claim remedies under the Act, we think it necessary to refer to the facts as disclosed in the records. The advocate who appeared for the appellant before the Tribunal, Shri R.N. Srivastava, has filed an affidavit in this Court stating that he had filed written arguments before the Tribunal explaining the mistake committed by the bank in the computation made by it of the number of working days of the appellant. From this affidavit, it is seen that the first respondent Bank put forward a case that the attendance register for the month of July 1976 had been destroyed and that Sundays and other holidays were not taken into account in computing the number of days that the appellant worked. We have also a supplementary affidavit filed by the appellant himself which throws further light about the number of days that he worked. In this affidavit, it is seen that he worked for 4 days in 1974, 154 days from January 1975 to December 1975 and 105 days from January 1976 to July 1976. The appellant was denied work from July 1976. His affidavit shows that he had worked for 202 days from July 1975 to July 1976. According to him, if we add 52 Sundays and 17 holidays, the total number of days on which he worked comes to 271 days. The appellant charged the Bank with having tampered with the records. To contradict the appellant’s case, the first respondent Bank did not produce its records. The appellant wanted the relevant records to be filed but they were not produced. Grounds 18 to 20 of the special leave petition make mention of this plea of the appellant. These grounds are met by the first respondent Bank in their counter-affidavit filed in this Court by stating that “when the matter was before the Industrial Tribunal, the registers in question were filed in another case before the Industrial Tribunal-cum-Labour Court and produced in that Court. However, I submit that now the attendance register has been destroyed but the payment registers are available with the respondent Bank as proof of the number of days on which the appellant worked”. In the absence of any evidence to the contrary, we have necessarily to draw the inference that the appellant’s case that he had worked for more than 240 days from July 1975 to July 1976, is true……….” I n Range Forest Officer Vs. S.T. Hadimani[16] the Industrial Tribunal, in arriving at the conclusion that the workman had worked for more than 240 days, held that the burden was on the management to show that there was justification in termination of the service of the workman and that the affidavit of a workman was sufficient to prove that he had worked for 240 days. In this context the Supreme Court observed: “…….In our opinion the Tribunal was not right in placing the onus on the Management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the Appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside……” (emphasis supplied). In Siri Niwas2, the respondent-workman claimed to have worked with the appellant-Municipal Corporation from 05.08.1994 to 31.12.1995 as a tubewell operator and to have thereafter worked from 01.01.1995 to 16.05.1995. On the ground that his services were illegally terminated on 17.05.1995 an industrial dispute was raised by him. Before the Tribunal, the workman contended that as he had completed 240 days service in a year, the purported order of retrenchment was illegal as the conditions precedent therefor, as contained in Section 25-F of the Industrial Disputes Act, 1947, were not complied with. The Municipal Corporation, on the other hand, contended that the respondent-workman had worked only for 136 days on daily wages during the preceding 12 month period. The Tribunal came to the conclusion that the workman had worked for 184 days and, since he had not worked for 240 days in a year, he was not entitled to any relief. The Tribunal noticed that neither the management nor the workman had produced the muster rolls which was their joint liability. The Tribunal observed that the workman did not even summon the same although the management had not produced the muster rolls. Aggrieved thereby the respondent-workman approached the Punjab and Haryana High Court. The High Court was of the view that, as the employer did not produce the relevant records before the Industrial Tribunal, an adverse inference should be drawn against it, as it was in possession of the best evidence and that it was not necessary for the workman to call upon the employer to do so. The High Court was of the view that, while the burden of proof may not be upon the employer, but in case of non-production of documents an adverse inference could be drawn against the employer. The High Court directed the employer to reinstate the workman with 75% back wages. In appeal, the Supreme Court observed: “…………..The provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by an employer for effecting a valid retrenchment: ( i ) one month’s notice in writing indicating the reasons for retrenchment or wages in lieu thereof; ( ii ) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months. For the said purpose it is necessary to notice the definition of “continuous service” as contained in Section 25-B of the Act. In terms of sub-section (2) of Section 25-B if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17-5-1995. For the purpose of