HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2) (b) Description of the case. WP No. 474 of 02 (M/S) Khadhi & Village Industries Commission VS Prescribed Authority Industrial Tribunal & others. Approved for reporting ________________ Not approved for reporting Date of decision: 07.08.2006 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 474 (MS) OF 2002 Khadhi & Village Industries Commission, Through its Director having its State Office At General Mahadev Singh Road, Kanwali, Dehradun. ……………Petitioner Versus 1. Prescribed Authority, Industrial Tribunal, Uttaranchal, Haldwani. 2. Sri Roshan Lal, S/o Sri Mohan Singh, R/o Village Binikhera, District-Udham Singh Nagar. ………….Respondents. & WRIT PETITION NO. 475 (MS) OF 2002 Khadhi & Village Industries Commission, Through its Director having its State Office At General Mahadev Singh Road, Kanwali, Dehradun. ……………Petitioner. Versus 1. Prescribed Authority, Industrial Tribunal, Uttaranchal, Haldwani. 2. Sri Ramgopal, S/o Sri Gokul Singh, R/o Village Dhakia Gulaboa, Kashipur, District-Udham Singh Nagar. ………….Respondents. & WRIT PETITION NO. 477 (MS) OF 2002 Khadhi & Village Industries Commission, Through its Director having its State Office At General Mahadev Singh Road, Kanwali, Dehradun. ……………Petitioner. Versus 1. Prescribed Authority, Industrial Tribunal, Uttaranchal, Haldwani. 2. Smt. Laxmi Devi, W/o Sri Mushadi Lal, R/o Mohalla Tanda Ujjan, P.O. Kashipur, District-Udham Singh Nagar. ………….Respondents. & WRIT PETITION NO.478 (MS) OF 2002 Khadhi & Village Industries Commission, Through its Director having its State Office At General Mahadev Singh Road, Kanwali, Dehradun. ……………Petitioner. Versus 1. Prescribed Authority, Industrial Tribunal, Uttaranchal, Haldwani. 2. Smt. Kanti Devi, W/o late Sri Ram Kumar, R/o Village Binikhara Post and Tehsil Kashipur, District-Udham Singh Nagar. ………….Respondents. & WRIT PETITION NO. 479 (MS) OF 2002 Khadhi & Village Industries Commission, Through its Director having its State Office At General Mahadev Singh Road, Kanwali, Dehradun. ……………Petitioner. Versus 1. Prescribed Authority, Industrial Tribunal, Uttaranchal, Haldwani. 2. Smt. Somwati, W/o Sri Dal Chand, R/o Paga Post Office Mahuava, Khoraganj, Tehsil Kashipur, District-Udham Singh Nagar. ………….Respondents. & WRIT PETITION NO.480 (MS) OF 2002 Khadhi & Village Industries Commission, Through its Director having its State Office At General Mahadev Singh Road, Kanwali, Dehradun. ……………Petitioner. Versus 1. Prescribed Authority, Industrial Tribunal, Uttaranchal, Haldwani. 2. Smt. Bal Kumari, W/o Sri Ramashwar Prasad, R/o Mohalla Lohariyan, Post office –Kashipur, District- Udham Singh Nagar. ………….Respondents. Dated: 07.08.2006 Hon’ble Rajesh Tandon, J. Heard Sri Anil K. Joshi, Advocate for the petitioner and Standing Counsel for the respondent no. 1. By the present writ petitions, the petitioners have prayed for a writ of certiorari quashing the award dated 12th February, 2002 passed by the respondent no.1. 3. Briefly stated on a reference made under section 4k of the U.P. Industrial Disputes Act, 1947 in Industrial Dispute Case No. 64 of 1998 follwing question were referred:- “D;k lsok;kstdksa }kjk vius Jfed Jherh dkfUr nsoh iRuh Lo0 jktdqekj nSfud Jfed dh lsok;sa fnukad 23&5&90 ls lekIr fd;k tkuk mfpr rFkk@vFkok oS/kkfud gS\ ;fn ugha rks lEcfU/kr Jfed vU; fdu fdu fooj.kksa lfgr mDr ykHk@{kfriwfrZ dks ikus dh vf/kdkjh gS\” 4. According to the case of the respondent No.2, their appointments were made as a daily wagers and without complying the provisions of Section 6-N of the U.P. Industrial Dispute Act, her services have been terminated. Both the parties have filed their written statement and this fact has come on the record that no appointment letters were issued in favour of the daily wagers. 5. Further the employer/petitioner has stated on oath that since no order for appointment were given in favour of the daily wagers, therefore, no orders are required for termination of their services. 6. The Labour Court has passed the order that the daily wagers have worked upto 22.05.1990 and since no complaint was against them, they shall be entitled for wages from the date of reference i.e. from 1998 and shall also be entitled for damages/relief. 7. In Rajasthan State Ganganagar Sugar Mills Ltd. Vs. State of Rajasthan and another (2004) 8 SCC 161, the Apex Court has held that it was for the claimant to lead the evidence that he has in fact worked for 240 days in the year proceeding his termination and mere statement cannot be sufficient to lead to the conclusion that in fact the claimant had worked for 240 days in a year. The Apex Court has also relied upon the judgment of Range Forest Officer Vs. S.T. Hadimani (2002) 3 SCC 25. The muster roll has also not been produced and as such the Apex Court has observed as under:- “4. in support of the appeal learned counsel for the appellant submitted that both the Labour Court and the High Court fell into error by placing burden on the employer to prove that the workman concerned has not worked for more than 240 days. The Labour Court failed to notice that even if the period for which the muster roll was not produced is reckoned, then also the requirement of 240 days’ work during the twelve month preceding the alleged date of termination is not established. 6. It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termina5tion. He has filed an affidavit. It is only his own statement which is 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. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workmen had worked for 240 days as claimed. Even if that period is taken into account with the period as days as claimed. Even if that period is taken into account with the period as stated in the affidavit filed by the employer, the requirement prima facie does not appear to be fulfilled. The following period of engagement which was accepted was 6 days in July 1991, 15-1/2 days in November, 1991, 15-1/2 days in January 1992, 24 days in February, 1992, 20-1/2 days in March 1992, 25 days in April 1992, 25 days in May 1992, 7-1/2 days in June 1992 and 5-1/2 days in July 1992. The Labour Court demanded production of muster roll for the period of 17-6-1991 to 12-11-1991. It included this period of which the muster roll was not produced and came to the conclusion that the workman had worked for more than 240 days were referable. 7. In our view the Labour Court and the High Court have failed to consider the statutory requirement in their proper perspective. One of the stands taken by the employer was that the engagement was made keeping in view the temporary needs and it was seasonal in character. No definite finding was recoded by the Labour Court or the High Court in that regard. 8. We, therefore, remit the matter to the Labour Court to consider the evidence and come to a definite conclusion as to whether the workman had worked for 240 days during the period claimed. While considering the matter afresh, the aspect of need of engagement shall also be examined. If the engagement is found to be not for 240 days during the relevant period, then this aspect may not be considered. In case the Labour Court come to a finding in the affirmative, its original order shall be maintained subject to consideration of the shall be maintained subject to consideration of the seasonal need aspect. If its answer is in the negative the Labour court shall pass appropriate orders.” 8. The Apex Court in Surendranagar District Panchayat and another v. Gangaben Lajibhai and others [2006 (110) FLR 584], has held as under:- “10. The above position was again reiterated in a recent judgment in ONGC Ltd. and another v. Shyamal Chandra Bhowmik. 11. It was held in all these cases that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer.” 9. In view of the aforesaid, the matter is remitted to the Labour Court, who shall examine the claims in the light of the observations made above, and shall also examine as to whether the daily wagers were on the seasonal basis or for a particular project work or daily wagers were employed on account of the exigency of the work. 10. In view of the above, a writ of certiorari is issued quashing the award dated 12th February, 2002. 11. Consequently, writ petition are allowed. All the matters are remanded for fresh decision. No order as to costs. (Rajesh Tandon, J.) 07.08.2006 Rathour