1. The petitioner, first party workman in Reference (ITC) No. 5 of 1998 from Industrial Tribunal, Surat, has approached this Court under Article 227 of the Constitution of India challenging the award & order dated 17/4/2003, whereby the Industrial Tribunal while partly allowing the reference and declaring that the action of relieving the workman or discharging the workman from1/1/1991 was illegal and hence ordered his reinstatement with continuity of service without backwages and cost of Rs.2,000/-.
2. The facts in brief leading to filing this petition deserve to be set out as under.
The respondent workman had to raise industrial dispute as though he was serving since 1982 with the petitioner, his services were terminated w.e.f. 1/1/1991 unceremoniously and without following due procedure of law, including provision of Section 25-F of Industrial Disputes Act or any other provisions of law. Said termination was illegal, hence he issued notice dated 2/12/1999 which also remained unheeded and hence he was left with no choice but to raise dispute before the appropriate forum wherein it was numbered as Reference No. (ITC) No. 5 of 1998. Industrial Court after recording its reasoning while partly allowing the reference did not grant any backwages as the dispute was raised only in the year 1998 and on account of delay in raising reference backwages were denied, but the order of reinstatement with continuity of service and cost was granted as could be seen from the award dated 17/4/2003 which is impugned in this petition.
3. On 11/7/2003 this Court (Coram: P.B. Majmudar, J) issued notice and made it returnable on 18/8/2003, and passed the following order.
''Notice returnable on 18th August, 2003. In the meanwhile, execution and operation of the impugned order is stayed on condition that the petitioner complies with the provisions of Section 17-B of the Industrial Disputes Act, after receiving appropriate affidavit in consonance with the provisions of the said section. The petitioner shall comply with the provisions of Section 17- B of the Act from the date of the order of the Labour Court.”
4. This Court while issuing Rule passed the following order (Coram: Jayant Patel, J):
“ Rule to be heard with SCA No. 10433/01. Interim relief in terms of para 10(B) subject to compliance of section 17B of the I.D. Act.”
5. During pendency of this petition, this Court (Coram: D.H. Waghela, J) passed an order on 13/4/2004, which reads as under:-
“1. By the present petition, under Article 227 of the Constitution, the petitioner has challenged the award and order dated 17.4.2003 of Industrial Tribunal, Surat in Reference (ITC) No.5 of 1998 whereby respondent No.2 was ordered to be reinstated without backwages but with cost of Rs.2,000/.
2. The petition is stated to have become infructuous in view of the fact that, during its pendency, the respondent workman has reached the age of superannuation on 31.7.2005 and even the wages required to be paid under the provisions of section 17B of the Industrial Disputes Act, 1947 have been stopped. Learned counsel Mr Purvish Malkan, appearing for the workman, submitted that the petition was required to be disposed with the observation that the respondent workman was required to be paid his retiral dues on the basis that he had continued in service till 31.7.2005 and, subject to that, he may not insist upon payment of any additional wages for the period after the impugned award.
3. In view of the above facts and circumstances and there being no ground to interfere with the impugned award in exercise of the extraordinary jurisdiction of this court under Article 227 of the Constitution, the petition is disposed as infructuous, with the observation and direction that the respondent workman shall not claim any amount by way of backwages on the basis of the impugned award and the petitioner shall calculate and pay within a period of three months the retiral dues of the respondent workman on the basis that he had continued in service under the petitioner till his reaching the age of retirement on 31.7.2005 in terms of continuity of service granted in the impugned award. Subject to the above observation and direction, the petition is disposed and Rule is discharged with no order as to costs.
6. This order was challenged before the Apex Court wherein Apex Court has passed the following order on 19/11/2010.
“ Leave Granted.
We have perused the impugned order dated 13th April 2007. In the light of the fact that the petition has been disposed of as infructuous on the ground that the respondent had reached the age of superannuation and there is no discussion on the merits of the controversy with regard to the legality of the order of reinstatement, we are prima facie of the opinion that in the absence of any such finding the respondent would not be entitled to any retiral benefits as well. To our mind, a decision on merits of the controversy with regard to the respondent's service has to be rendered before any consequential order can be made.
We, accordingly, allow this appeal, set aside the impugned order and remit the case to the High Court for re-decision on the merits of the case. Parties shall appear before the High Court on the 16th of December,2010, before the Registrar of the High Court so that the service can be completed. We also request the High Court to dispose of the matter within four months thereafter.”
7. Thereafter, the matter was though ordered to be completed by four months, as submitted by learned advocate for the petitioner, it was not being reached for disposal on account of number of matters on the board.
8. On 27/4/2012 this Court (Coram: R.M. Chhaya, J) passed following order:-
“1. It appears from the record that the writ petition was disposed of by order dated 13.4.2007 against which the petitioner preferred Civil Appeal No.10127 of 2010 before the Apex Court. The Apex Court by order dated 19.11.2010 allowed the appeal and set aside the said order and has further remitted the matter back for its re decision on merits. It appears that the Apex Court had directed the parties to appear before this Court on 16.12.2010. Accordingly, the matter is placed for final hearing today.
2. No one appears on behalf of the respondents today. Ms. Tejal Shah, learned advocate for Ms. Roopal Patel for the petitioner requests that fresh notice may be issued to the respondents.
3. In view of the above, fresh NOTICE of RULE to the respondents returnable on 25.6.2012. Direct service is permitted.”
9. Accordingly the matter is now ready for final disposal and accordingly same is being disposed of by this order.
10. Learned advocate for the petitioner contended that the order impugned cannot be said to be in any manner tenable in eye of law as the workman failed in establishing his case with regard to termination of his service without following due procedure of law. Learned advocate for petitioner invited this Court's attention to statement of claim put up by the workman and contended that the workman has taken an unequivocal stand as could be seen from written statement, his services came to be terminated w.e.f. 1/1/1991. The workman adduced evidence in form of documentary evidence being exhibit- 22, 23 and 24 where also it could be said that the workman could indicate his working only up to the year 1989. It is an admitted fact that the workman did not put up any application whatsoever for production of document nor was the document required to be filed in absence of such application. However it is required to be noted that the workman was required to be engaged as & when the work was available. This fact have been brought on record during recording of evidence. Therefore the totality of facts & circumstances should persuade this Court in holding that the order of the Tribunal being perverse is required to be quashed and set aside.
11. Learned advocate for the petitioner thereafter invite this Court's attention to documents being exhibit no. 22, 23 & 24 and contended that even perusal of these documents also do not indicate any where that the workman could be said to have been a permanent employee nor could the same be treated as documentary evidence indicating that the workman did not abandon his job and he was continuing his service till 1991. In other words the documentary evidence, even if they are taken on its face value, would not indicate any where that the workman was in service after 1989.
12. Learned advocate for the petitioner thereafter contended that the burden of proving that workman had in fact worked for 240 days prior to his date of termination for a period of one year is lying upon the workman and in the instant case workman cannot be said to have proved this fact successfully so as to invoke declaration qua non-compliance with provision of Section 25-F of Industrial Disputes Act.
13. Learned advocate for the petitioner further contended that the Tribunal could not have proceeded on account of so called non challenge to the testimony of the workman in respect of he being continued till 1991 and he being not put a question with regard to his status being casual, temporary and or daily wager. This so called non challenge to the workman on behalf of the petitioner during course of cross examination of the workman could not have attained status and or proof so as to hold in favour of workman that the workman proved that he had worked for 240 days preceding the year in which he is claimed to have been retrenched by the employer.
14. Learned advocate for the petitioner relying upon decision of the Apex Court in case Manager, Reserve Bank of India, Bangalore Vs. S. Mani and others, reported in (2005) 5 SCC 100, laid special emphasize upon observations made in para nos. 21, 27 and 28 and contended that non production of documents and burden of proof is the legal proposition to be appreciated depending upon the facts of each case and in the instant case the observations of the Apex Court made in these paragraphs would have total applicability as the workman did not even call upon the employer to produce any documentary evidence nor did pass any order calling upon the employer to produce any document. In absence of such plea or orders there could not have been any question of drawing adverse inference against employer and in favour of the workman.
15. Learned advocate for the petitioner thereafter relying upon decision in case of Bharat Sanchar Nigam Ltd Vs. Man Singh, reported in 2011 STPL (Web) 966 SC in Civil Appeal No. 8747 of 2011 decided on 14/10/2011, contended that even if the order of reinstatement is said to have been based on want of Section 25F, straightway order of reinstatement is uncalled for and at the best there should have been consideration qua payment of compensation, but even in the instant case it was not warranted on account of peculiar facts of the case on hand.
16. Learned advocate for the petitioner thereafter relying upon decision of this Court in case of Bharat Sanchar Nigam Ltd Vs. Learned Presiding Officer & 1, in SCA 10433/2011 decided on 28/9/2011 (Coram: Ms. R.M. Doshit, J) and contended that delay defeats the cause or atleast inordinate delay of so many years would have required the Court to make appropriate observation and without dealing with the same straightway reinstatement is not justified.
17. Mr. Malkan, learned advocate appearing for the workman contended that the statement of claim filed by the workman contains unequivocal statement that the workman was working with the petitioner and his services was terminated on 1/1/1991 and thereafter on 2/12/1991 he issued notice which is ought to have reminded the employer for calling the workman for work. Now, non production of notice cannot be termed to be so fatal on the part of the workman so as to draw adverse inference against version of the workman. The notice though termed to be a notice in the statement of claim it is at the best required to be understood to be a note or representation and if such a representation is filed the workman could not have been expected of keeping it as a record or keeping record thereof. Therefore on production of this notice it is sought to be highlighted on behalf of the employer petitioner is of no avail to the petitioner.
18. Though the workman thereafter invited this Court's attention to the observations made by Tribunal are in fact the findings which cannot be inferred with by this Court under Article 227 of the Constitution of India. This findings are based upon sound principle of law. That the assertion by way of oral evidence if not controverted or challenged by way of cross examination and when those assertion are to be treated, it was sufficient for passing the order. In the instant case fact remains that the assertion made by the workman have not been challenged in the cross examination and therefore on that ground also no interference is called for in the order impugned.
19. The Court is of the considered view that the petition is required to be allowed in its totality and the order impugned is required to be quashed and set aside for the following reasons, namely:-
1) The various decisions of the Apex Court has now the effect of crystallizing the law qua workman's duty and his burden to establish that there is breach of Section 25-F by leading cogent evidence qua his eligibility for invoking section 25F of the I. D. Act. The workman was thus under an obligation to make specific averment in the statement of claim and was required to make those arguments and assertions by leading cogent evidence in support of his assertion. In the instant case the statement of claim contains specific assertion on the part of the workman that workman worked till 1/1/1991 as he stated that his services were terminated w.e.f. 1/1/1991 and despite repeated requests thereafter he was not permitted to discharge duties and ultimately he had to issue notice on 2/12/1991.This assertion is required to be viewed in a proper perspective which would show that workman clearly asserted that he came to be dismissed on 1/1/1991. Now this date being crucial date it was duty cast upon the workman to adduce evidence to show that workman worked atleast 240 days preceding the date of termination i.e. 1/1/1991. Now preceding 12 months from 1/1/1991 is required to be shown and is required also to be shown on part of the workman that atleast for 240 days prior thereto he had put in work. In the instant case by no stretch of imagination it can be said that workman could establish this fact. Even if one takes the evidence on record into consideration, then also the evidence available on record led by the workman is to the effect that workman was in service or workman was only worked up to October 1989 and thereafter for the period from October 1989 till 1/1/1991 there appears to be no evidence at all indicating that the workman completed 240 days. Mere assertion being oral assertion would be of no avail to the workman as time & again recorded by this Court and the Apex Court that the oral assertion is required to be viewed from angle that the workman could produce atleast his evidence which indicate that as & when workman worked the certificate was issued by his employer as it is very evident from the documentary evidence produced by workman on exhibit-22, 23 & 24. Now, the workman admittedly not produced any evidence for that period. That means workman cannot be said to have worked in the interregnum period. The mandate of statute qua completion of 240 days in a preceding year is thus not been established to have been violated on part of petitioner. There is no evidence qua this period nor has there being any application or request of prayer by workman to Court calling upon the petitioner to produce documents nor there any assertion of the workman that he worked for the period. The workman is unfortunately completely silent qua this period which in my view is very crucial and essential and important period for indicating the breach or any breach of the provision of law being section 25F of I.D. Act.
2) The Tribunal is not correct in observing that there was no challenge to assertion of the workman. In fact statement of claim is properly replied as could be seen from the written statement wherein special stand is taken by the employer that it is not the case of termination of service of the workman but it was a case of abandonment of work by workman himself. Now this is the case put up and when workman has not lodged any evidence to indicate that how and what happened during period October 1989, the Tribunal could not have straightway accepted oral version of workman being continuous in service. There exists unexplained gap which could not have been bridged by workman by oral evidence even if it remains unchallenged. Therefore, in my view the order of Tribunal and findings of the Tribunal qua this cannot be said to be sustainable in eye of law.
3) The fact also remains to be noted that the version put up by employer qua workman abandoning his work cannot be said to be unbelievable or unacceptable on account of any cogent evidence adduced on part of workman. On the contrary the entire conduct of the workman and the peculiar facts attending this case indicate that the version of the employer that workman abandoned his job and that he was given work as & when workman was available appears to be believable as workman has not adduced any evidence as to what happened after October 1989 nor has he called upon employer to produce evidence for that period and the employer has been successful in putting questions which have not been refused by the workman, clearly indicate that workman was given work as & when work was available, that the workman has admitted that he was paid his dues for the days he worked. Had the workman worked after October 1989 then there would have been some evidence for which workman either would have produced himself or would have asked the employer to produce the document for the said period. The workman has not worked after 1991 is evident as he has not produced anything to show that he had worked after so called termination from1/1/1991. The reference to notice dated 2/12/1991 also cannot be said to be holding the ground in any manner to further his case as assuming that there was notice to the employer but the employer has not taken any action till 1/1/1991 that is the day on which reference was made would clearly show that the inertia or inaction on the part of workman would speak eloquently qua version put by employer qua availment of the work.
20. In this view of the discussions made herein above, the Court is of the opinion that the order impugned being patently perverse, illegal and non-tenable in eye of law and it has resulted into miscarriage of justice same cannot be sustained in law, hence it is required to be quashed and is accordingly quashed. Rule made absolute. However, there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn