IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3810 of 2003 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= BALDEV JAYANTILAL TRIVEDI - Petitioner(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance :
MR KISHOR M PAUL for Petitioner(s) : 1, MS. SHRUTI PATHAK, AGP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA CAV JUDGMENT Date : 1/08/2012
1. By way of this petition under Article-227 of the Constitution of India, the petitioner–a workman, who was in the service of Respondent no.2, seeks to challenge the order passed by the Presiding Officer, Labour Court, Rajkot dated 21/5/2002 in Reference (LCR) No.46/1988 and thereby rejecting the Reference of the petitioner.
2. The facts of the case in brief are –
2.1) Petitioner was serving as a Chokidar from 16/8/1982 in the services of respondent. As per the case of the petitioner, he served as a Chokidar from 16/8/1982 to 31/5/1983. From 1/6/1983 he worked as a Tracer. The petitioner was paid Rs.12.80ps per day as a Skilled Labourer. The services of the petitioner were orally terminated by the respondent on 12/6/1984. Despite several representations to the respondent, the petitioner was not taken on duty. At the time of termination, juniors to the petitioner were serving with the respondent and few others were engaged fresh at the post of petitioner. The petitioner, therefore, filed Reference (LCR) No.46/1988 in Labour Court at Rajkot. The petitioner filed his statement of claim in the said Reference. In response to that the respondents filed their written statement. Both sides led oral as well as documentary evidence before the Labour Court. The Labour Court upon appreciation and evaluation of the evidence, oral as well documentary, led by both the sides, came to the conclusion that the petitioner failed to establish that he was in continuous service of 240 days in the preceding year. Accordingly the Reference came to be rejected.
2.2) Feeling aggrieved and dissatisfied, the petitioner has come-up with this petition challenging the order of the Labour Court.
3. Mr.Kishor M. Paul, learned counsel appearing for the petitioner very laboriously submitted that the Award passed by the Labour Court rejecting the Reference of the petitioner is unjust, improper and without considering the evidence on record. Mr.Paul submitted that the learned Judge seriously erred in coming to the conclusion that the petitioner had not completed 240 days at the time of termination of his services. Mr.Paul also submitted that the learned Judge seriously erred in not drawing adverse inference against the respondents for non-production of adequate documentary evidence in their possession. Mr.Paul also submitted that the learned Judge seriously erred in coming to the conclusion that there was no violation of Sec.25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. Mr.Paul, therefore, urged that this petition be allowed and the respondents be directed to reinstate the petitioner with continuity of service along with appropriate backwages.
4. On the other hand Ms. Shruti Pathak, learned Addl. Government Pleader, opposed this petition submitting that no error can be said to have been committed by the Court below, much less an error of law warranting any interference at the end of this Court in exercise of supervisory jurisdiction under Article-227 of the Constitution. Ms. Pathak submitted that the Court below considered all relevant aspects of the matter and recorded a finding of fact that the petitioner was not in service between 20th June, 1983 to 14th November, 1983. According to Ms. Pathak, the Attendance Registers (muster rolls) produced on record vide Exh.52 to Exh.69 makes the position very clear that from 12/6/1983 to 11/6/1984 the petitioner had worked for 196 days. Ms. Pathak submitted that at the time of hearing before the Labour Court, it appears that the Attendance Register No.142193 for the period between 26/6/1983 to 197/1983, Attendance Register No.211931 for the period between 20/7/1983 to 2/8/1983 and for the period between 3/8/1983 to 14/11/1983 were produced in which the name of the petitioner did not figure. Ms.Pathak, therefore, urged that there was no question for the Labour Court to draw any adverse inference in this regard.
5. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for my consideration in this petition is as to whether the Labour Court was justified in coming to the conclusion that the petitioner had not worked for 240 days in the year preceding his termination. In a case of this nature, it is trite, the High Court exercising the power of judicial review, would not interfere with the discretion of a Tribunal unless the same is found to be illegal or irrational. Keeping in mind this principle I propose to consider the contentions of both the sides.
6. It appears from the materials on record that the case of the respondents before the Labour Court was that the petitioner had worked for 197 days and had no completed continuous service of 240 days in a year. The respondent also adduced documentary evidence in this regard by producing the attendance register. It appears from the order passed by the Labour Court, more particularly, the Chart of the period during which the petitioner worked which is at Page-64 of the Paper-Book, that the days of service between 20/6/1983 to 14/11/1983 were shown to be Nil. Taking this into consideration it was submitted by the petitioner before the Labour Court that the respondents have failed to produce the attendance register for the period referred to above. It appears that thereafter the respondents produced attendance register No.142193, 211931 and the attendance register for the period between 3/8/1983 to 14/11/1983. Taking into consideration this piece of evidence, the Labour Court came to the conclusion that the petitioner had not worked between20/6/1983 to 14/11/1983. I am of the opinion that in taking this view it could not be said that the findings of the Labour Court can be termed as illegal or irrational.
7. By now, it is well settled that the provisions of the Evidence Act in terms, do not apply to the proceedings U/s.10 of the Industrial Disputes Act. However, applying general principle, I find that the Supreme Court, in catena of decisions, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In case of termination of services of a daily wage earner, there will be no letter of appointment or termination. There will also be not receipt or proof of payment. Thus, in most cases, the workman can only call upon the employer to produce the nominal attendance register for the given period, if any, the Wage Register, the Attendance Register etc. Drawing an adverse inference, ultimately, would defend thereafter on each case. As held by the Supreme Court in the case of R.M.Yelati Vs. Assistant Executive Engineer reported in AIR 2006 SC -355 that mere affidavits or self-serving statement made by the claimant will not suffice in the matter of discharge of the burden placed by Law on the workman to prove that he had worked for 240 days in a given year. The Supreme Court, in Yelati (Supra) after considering various other judgments observed that mere non-production of muster rolls per-se without any plea of suppression by the claimant will not be the ground for the Tribunal to draw an adverse inference against the management. Bench also observed that explaining the basic principle, viz. that the High Court under Article-
226 of the Constitution will not interfere with the findings of fact recorded by the Labour Court unless they are perverse.
8. In the present case, except oral evidence led by the petitioner, no other documentary evidence could be adduced by the petitioner to show that he had worked for a continuous period of 240 days in a year. On the other hand, respondents adduced oral as well as documentary evidence to show that the petitioner had worked for only 196 days between 12/6/1983 to 11/6/1984.
9. In the aforesaid view of the matter, I do not find any reason to interfere with the impugned order under challenge. This petition fails and is accordingly rejected with no order as to cost. Rule discharged.
Ashish N.
(J.B.PARDIWALA, J.)