IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 795 of 2004 With CIVIL APPLICATION No. 5592 of 2004 In SPECIAL CIVIL APPLICATION No. 795 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES(para 4to9 only) To be referred to the Reporter 2 or not ? YES(para 4to9 only) 3 Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= BILIMORA NAGARPALIKA - Petitioner(s) Versus JASHUBEN JASHAVANTBHAI SOLANKI - Respondent(s) ========================================================= Appearance :
MS JIRGA D JHAVERI for Petitioner(s) : 1, MR AK CLERK for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 28 /09/ 2012 CAV JUDGMENT By way of present petition, the petitioner challenged Judgment and Award dated 25.11.2003 passed by the Labour Court, Navsari in Ref. (LCN) No. 60 of 2003, whereby the Labour Court declared that the action on the part of the petitioner-Nagarpalika in orally terminating the services of the respondent-workman was illegal. Thereupon, the Labour Court directed reinstatement of the workman on her original post with 20 % back wages.
2. The relevant facts may be noted first. The case of the respondent- workman in his statement of claim at Exh.-4 filed before the Labour Court was that she had been serving since 1.11.1978 as Mahetrani in the Municipality on a daily wage basis and that ever since the date of joining, she worked continuously. She contended that her services came to be terminated orally with effect from 25.01.1998 without any prior notice. It was her case that the action of termination was arbitrary and in breach of the mandatory provisions of Industrial Disputes Act, 1947. It was her further case that after dispensing with her services, the Municipality engaged another person one Parwatiben on her post on permanent basis. She addressed a letter dated 23.12.1998 requesting the Municipality to take her back in service, but in vain.
2.1 In reply to the claim statement, the petitioner-Municipality denied the case of the Watchman. It was denied that there was an illegal termination. It was denied that workman had put in continuous service of 240 days. In short, the case of the employer was of total denial.
3. This Court while admitting the petitioner on 23.1.2004 passed the following order :
“Rule. Ad-interim relief in terms of para 6(B) so far as it relates to back-wages and as regards the reinstatement is concerned, it would be open to the Municipality to reinstate the respondent as daily wager in any other Department of the Municipality. Notice as to interim relief returnable on 3-3-2004. Direct service is permitted.”
3.1 It was noticed from the record that the respondent filed Civil Application No. 5592 of 2004 complaining that she was not being given the work of Sweeper in spite of above order. After the said civil application, the workman was reinstated as daily wager sweeper as per letter dated 4.9.04/12.10.04 produced by learned advocate for the petitioner- Municipality. The workman was accordingly reinstated having been taken back in service. It is not in dispute that she has been serving at preset also under the petitioner- Municipality. The workman is already reinstated as above and is in service.
3.2 It was submitted by learned advocate for the petitioner Ms. Jirga G. Jhaveri that the respondent’s service was on the post of Mehtarani in Manghushi Hospital run by the petitioner Municipality. According to her, since it was now not economical for the Municipality to continue to run the hospital, it has been decided to hand over the management of the hospital to the State Government. Learned advocate Ms. Zhaveri, pointed out that a resolution 25.10.1999 was also passed in that regard, however, she fairly stated that the hospital was still not handed over and the respondent was serving under the Municipality.
4. In the impugned Judgment and Award, the Labour Court on the basis of the evidence before it arrived at a finding that in terminating the services of the workman, the first party employer did not observe the conditions of section 25F of the Industrial Dispute Act, 1947 (hereinafter referred to as ‘the Act’ for sake of brevity), which was mandatory. The Labour held that the workman had put in continuous service as defined in section 25-B of the Act. It was on such premise that the reinstatement and 20% back wages was ordered by the Labour Court.
4.1 Learned advocate for the petitioner would submit that the finding of the Labour Court that the workman competed 240 days of continuous service was baseless as there was no evidence in that regard. She would submit that the question of contravention of section 25 F did not arise and the Labour Court misdirected itself in law in passing the impugned award awarding reinstatement with the back wages.
4.2 On the other hand learned advocate Mr. Abhilash Clerk for the respondent submitted that the workman had put in service of more than 20 years in the Municipality, however, her employer Municipality was uncharitable to her by not giving any written order of appointment, presence card or pay slip and exploited her services. It was submitted that the factum of continuance of the petitioner in service since 1978 till date is not in dispute. It was submitted that in the circumstances, the finding as to completion of 240 days of service by her was proper and was not liable to be interfered with.
5. Having carefully considered the impugned judgment and award and having considered the rival submissions in the context, it may be stated at the outset that since the workman is already reinstated in service long back and is on the job, it would be harsh and inequitable partaking arbitrariness in itself, if the position of the workman is disturbed at this stage after passage of almost 8 long years. Therefore, the Court would be declined to disturb her service status.
5.1 Even otherwise, and even while considering the merits of the judgment and award of the Labour Court and the findings reached by it, it was noticed that the substance of the case of the workman was that she had been in service since 1978 continuously, and therefore has completed the requisite number of days to constitute continuous service as required under the relevant provisions of Industrial Dispute Act, 1947. Against that it was the say of the employer that she was placed at difference places at different times. It was employer's further case that at no place she had completed 240 days of continuous service. On a closure look, the defence by the employer Municipality was deftly taken. To say so that the workman was placed on duty at different places at different times for different work and at none of the places she had completed 240 days, is completely different from saying that workman had not put in 240 days of continuous service under the Municipality.
5.2 It is true that primarily it is for the workman to discharge the burden that she had completed 240 days of continuous service, as she asserted that fact, however once such assertion is prima facie found true with reference to the pleadings and the facts on record, the burden shifts. The proposition of law on the point may be considered usefully. In K. S. Nanji and Co. v. Jatashankar Dossa ( AIR 1961 SC 1474) Supreme Court pointed out, "Under the Evidence Act there is an essential distinction between the phrase "burden of proof" as a matter of law and pleading and as a matter of adducing evidence. Under S. 101 of the Evidence Act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other. In the present case the burden of proof in the former sense is certainly on the respondents. But the question is whether they have adduced evidence which had the effect of shifting the onus of proof to the appellant.”
5.3 In A. Raghavamma v. A. Chenchamma (AIR 1964 SC 136), it was held that shifting of onus is a continuous process. It was observed, “There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”
5.4 The distinction between the burden of proof and the onus proof was explained in Anil Rishi v. Gurbaksh Singh (AIR 2006 SC 1971) as under.
“There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”
6. Therefore, the concept of burden of proof is not a straight-jacket proposition that at all stages in course of evidence, it would remain upon the workman. The evidentiary principle, as seen above, does not make it static.
7. Given the context of the facts of the present case, it is the case of the workman that he had been in service since 1978 till date, which is not disputed. In order to prove that, the workman entered the box and stated to that effect asserting his case. His case was that the employer was not giving any written order or pay slip. In such a scenario, it was incumbent upon the employer to dislodge the case of workman by putting a question to him in cross examination on the aspect of completion of 240 days continuous service. No such question was put and the case of the workman was not contradicted, much less dismantled. This, coupled with the nature of defence of the employer, noted above, which was the workman was posted at different placed on different occasions and at neither place he had completed 240 days. Even on this score, nothing appeared to have been elicited in the course of evidence on behalf of the employer.
8. In Director, Fishries Terminal Division v/s Bhikubhai Meghjibhai Chavda (AIR 2010 SC 1236), after referring to the principle laid down in R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], the Apex Court observed as under:
“Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wages basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the officials documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988”.
9. In above view of the matter, the finding by the Labour Court regarding non compliance of section 25 F of the Act need not be faulted. The whole of the judgment and award warrants no interference in light of above position. The awarding of 20% of back wages granted by the Labour Court was quite reasonable and has to be upheld. No ground is made out for exercise of jurisdiction under Article 227 of the Constitution.
10. For the foregoing reasons and discussion, the Judgment and Award dated 25.11.2003 of the Labour Court, Navsari in Ref. (LCN) No. 60 of 2003 is upheld. The petition is dismissed with no order as to costs.
CIVIL APPLICATION NO. 5592 OF 2004 In view of the above order, Civil Application No. 5592 of 2004 does not survive and is accordingly disposed of.
[N.V.ANJARIA, J.] cmjoshi