WP(C) 4893/2006 BEFORE HON’BLE MR JUSTICE B.K. SHARMA.. JUDGMENT AND ORDER (ORAL) Heard Mr. Y. S. Mannan, learned counsel for the petitioners as well as M s R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam appearing for the Stat e respondents. In spite of service of notice on Respondent No.3, none has appear ed on their behalf. 2. This writ petition is directed against the award dated 3.9.2005 passed b y the learned Presiding Officer, Industrial Tribunal, Dibrugarh in Reference Cas e No.6/2002, by which the following issues, which were sent for adjudication, ha ve been answered in favour of the Respondent No.3-Union. The issues that were r aised and adjudicated upon, are as follows :- (1) Whether the management of Mancotta T.E. is justified in discontinuing an ex isting facility, namely free supply of electric bulb to its staff members ? (2) If not whether the management of Mancotta T.E. is liable to revive the said facility with effect from the date of discontinuance or any other relief in lieu thereof ? 3. In the proceeding before the Tribunal, while the Union examined 3 witnes ses, the management examined one witness. It appears that no documentary evidenc e was adduced by either of the parties. 4. Mr. Y.S. Mannan, learned counsel appearing for the management-petitioner submits that apart from it being a case of no evidence at all to answer the ref erence in the affirmative, in absence of any agreement by and between the partie s for supply of electric bulbs to the workmen, the learned Tribunal could not ha ve answered the reference in favour of the Respondent No.3-Union. He submits tha t in absence of any mandate either by way of any Act, Rules or an Agreement arri ved at by the between the parties, merely on presumption that there was a preval ent practice of furnishing electric bulbs to the members of the Respondent No.3- Union, the impugned award dated 3.9.2005 could not have been passed by the learn ed Tribunal. 5. I have considered the above submission made by the learned counsel for t he petitioners. I have also perused the records of the learned Tribunal. 6. In the proceeding before the Tribunal in respect of the aforesaid disput e, both the parties submitted their written statement. In the written statement submitted by the management-petitioner, it was contended that in absence of any Rules and/or prescribed procedure, it was not the responsibility of the manageme nt to supply electric bulbs to the members of the Respondent No.3-Union or for t hat matter, the staff of the Tea Estate. Referring to the provisions of the Pla ntation & Labour Act, it was contended that the management having provided the f acility envisaged in the said Act to the staff in absence of any agreement, thei r could not have been any demand for supply of electric bulbs. 7. In the written statement filed by the Respondent -Union, the stand taken was that the practice of supplying electric bulbs was prevalent in the garden f or the last 27 years since 1975 and that suddenly, the management stopped supply ing electric bulbs from 1998 without assigning any reason. As per the said writ ten statement, the supply of bulbs was within the meaning of free supply of tea, ration, fuel, foodstuff etc. at a concessional price. However, the written stat ement is silent as to under what provisions of law, the management was obliged t o supply electric bulbs to its staff. 8. In the proceeding before the Tribunal, 3 witnesses examined by the Respo ndent No.3-Union reiterated the stand in the written statement about which discu ssions have been made in the impugned award dated 3.9.2005. S.W. No.1, one Sri K iron Chandra Gogoi, in his deposition, stated about the purported supply of elec tric bulbs to the staff since 1975, which was allegedly stopped from March 1998. According to the said witness, on return of fused bulb, the management used to supply electric bulb to the workers and the Garden Clerk used to record issuanc e of the same in the register maintained for the purpose. 9. In the cross examination, the aforesaid witness submitted that the worke rs were required to pay a nominal price for supply of fuel, tea and electricity. He admitted that no document was available to substantiate the claim that the e lectric bulbs were supplied free of cost. 10. S.W. No.2, one Sri Durga Sabar, who has been serving in the garden sinc e 1981. also stated in the same line as that of S.W. No.1. However, in his cros s examination, he had stated that he used to purchase electric materials, like bulbs, holders etc. since 1988. It will be pertinent to mention here that as pe r the stand of the Union, the supply of electric bulbs was stopped from 1998. 11. S.W. No.3 Sri Girija Shankar Singh, while deposing that he had been serv ing in the Tea Estate since August, 2000 as a Store Clerk also deposed that he h ad been serving in the Tea Estate as a Health Assistant since 1981. According to this witness, the supply of electric bulbs was stopped by the management from t he year 1998. In his cross examination, he has stated that the bulbs were suppli ed by the Godown Clerk on the basis of issuance of slip, based on which the Chow kidar used to provide required quantity of bulb. According to this witness, the re is no requirement of putting any signature as a mark of receipt of the bulb a nd that the supply was used to be recorded by the Godown Clerk. He admitted tha t in the register available with him, there is nothing to show that the manageme nt used to supply bulb to its staff. According to this witness, there was a sys tem of maintaining a tally register till the year 1996 and thereafter, the syste m was abandoned. This witness in his cross examination, admitted that he did not consult the tally register to see as to whether there was anything to show su pply of bulb to the staff of the garden. 12. The solitary management witness, M.W. No.1 Sri Sajan Kumar Agarwal in hi s deposition flatly denied supply of electric bulbs to the employees of the Tea Estate. He had deposed that there was no system of supply of electric bulbs. T his particular stand of the witness could not be dislodged in the cross examinat ion, as would be evident from the statement made by this witness in his cross ex amination. 13. On the basis of the aforesaid evidence on record, the learned Presiding Officer of the Industrial Tribunal, Dibrugarh has answered the reference in favo ur of the Respondent No.3-Union. In paragraph 9 of the impugned award, the Tribu nal has discussed about the aforesaid evidence. Referring to the adjudication t o be made, the Tribunal rightly observed that the burden was on the Respondent N o.3-Union to show that there was an existing facility of free supply of electri c bulbs to the staff members. The Tribunal solely relied upon the statements ma de by the 3 witnesses examined on behalf of the Union without, however, apprecia ting the contradiction extracted during the cross examination. Referring to the deposition of S.W.No.1 that the Godown Clerk used to provide electric bulbs by r ecording supply in his register and daily tally book, the Tribunal tilted in fav our of the Union without, however, making an endeavour to consult the particular register and/or tally book. In fact and as noted above. It was the specific con tention of the management that there was no system prevalent in the garden, unde r which the management was obliged to supply electric bulbs to the employees. 14. Likewise, the learned Tribunal while referring to the deposition of othe r witnesses heavily relied upon the purported register maintained by the managem ent regarding supply of electric bulbs, however, in the process, no effort was m ade to scrutinize the said register which in fact, was never brought on record by the respondent-Union. The Tribunal having held that the burden was on the re spondent-Union, it was incumbent on its part to see as to whether the respondent -Union had discharged the said burden in accordance with law. 15. It was a mere case of statement and/or assertion against the statement a nd/or assertion. While the stand of the respondent-Union was that the management used to supply electric bulbs since 1975 and had suddenly stopped in 1998, it w as the stand of the management that there was no practice prevalent under which the management was required to supply electric bulbs. It is in this context, Mr. Mannan, learned counsel for the petitioners has submitted that solely on the ba sis of the alleged prevalent practice, the respondent-Union could not have conte nded that the management was obliged to supply the particular material. 16. If there was any prevalent practice of supplying electric bulbs from 197 5, the respondent-Union ought to have produced the order and/or agreement by whi ch such a practice was introduced. A practice, which is said to be supply of ele ctric bulbs free of costs to the staff members could not have come into force wi thout there being any written order and/or any agreement to that effect. Nothing of the sort could be produced on behalf of the respondent-Union. As noted abov e, it also could not produce the relevant register. 17. In absence of any agreement by and between the parties and/or provisions of law requiring the management to supply electric bulbs to its staff, the Trib unal solely on the basis of the plea of the staff members that a practice was pr evalent, could not have passed the award directing the management to make the pa rticular supply w.e.f. 1.10.2005. On perusal of the evidence on record, I am of the considered opinion that there is no clinching material to support the plea of the staff of the Tea Estate. It being a case of no evidence at all, I am con straint to hold that the finding arrived at by the learned Tribunal in the form of the impugned award is totally perverse. 18. For all the aforesaid reasons, the writ petition merits acceptance and accor dingly, is allowed by setting aside and quashing the impugned award dated 3.9.2 005 passed by the learned Presiding Officer, Industrial Tribunal, Dibrugarh in R eference Case No.6/2002. 19. Registry shall send down the case record to the learned Tribunal along w ith a copy of this judgment and order.