Present writ petition has been filed challenging award dated 24.8.2000 passed by the Labour Court(II), U.P., Meerut in Adjudication Case No. 102 of 1997. The award was published under Section 6 of the U.P. Industrial Act (In short 'Act') on 6.12.2000. The reference made under Section 4-K of the Act in C.P. Case No. 401 of 1996 dated 31.3.1997 is as follows:-
"Whether the termination of services of the workman Gajendra Kumar, son of Tej Pal Singh with effect from 15.10.1995 is valid and legal ? If not, to what relief the workman is entitled and from which date?
The labour court answered the reference in favour of the workman and concluded that the termination of services of the workman with effect from 15.10.1995 by the employer was illegal and hence the workman is entitled for continuity of services and reinstatement alongwith 30% of the back wages. The workman was held entitled to the regular salary with effect from the date of the award.
The present petition was admitted on 14.2.2001. This Court while admitting the petition gave a direction which is as follows:-
"In the meantime, in case the petitioner allows the joining of the respondent no. 2 and pay wages with effect from the date of joining regularly, the award dated 24.8.2000 passed by the Labour Court in so far as it relates to the award of back wages shall remain stayed till further orders of this Court. The petitioner shall call the respondent no. 2 for joining by issuing registered letter within ten days from today or if the respondent no. 2 himself approaches, he shall be allowed to join. In case registered letter is not sent within ten days, the benefit of this order would not be available to the petitioner."
At the very outset, learned counsel for the petitioner employer had informed that in the present petition, no counter affidavit has been filed till date though earlier Sri Rajesh Tiwari, Advocate had accepted notice on behalf of respondent no. 2 workman. On 12.7.2011, learned counsel for the respondent no. 2 informed the Court that he had no instructions in the matter. As such, this Court directed the office to issue registered notice to the respondent no. 2 to engage another counsel and further directed that counter affidavit be filed within a period of one month. This Court on 12.7.2011 has observed that in case, the respondent no. 2 is served sufficiently, the matter shall be heard finally. As per the office report dated 1.9.2011, the service of notice upon respondent no.2 is sufficient in accordance with Explanation II of Rule 12 of Chapter VIII of the Rules of the Court.
On 26.4.2012 this Court directed the learned counsel for the petitioner employer to seek instructions with regard to status of the respondent no. 2 workman. On 3.5.2012, learned counsel for the petitioner Sri S.D. Singh after receipt of the instructions, informed that respondent no. 2 workman never turned up to join the duty before the petitioner employer even after the interim order dated 14.2.2001 was passed by this Court though was called upon in pursuance of the interim order. The respondent no. 2 workman filed a caveat application in the month of January, 2001 through Sri Rajesh Tiwari, Advocate who was heard on 14.2.2001 at the time of passing of the interim order, however, he never appeared thereafter before this Court by filing any affidavit in rebuttal of the contents of the writ petition as also supplementary affidavit filed by the petitioner. As despite service of notice issued by this Court in the year 2011, the respondent no. 2 workman has not put in appearance through a counsel. In the circumstances, the Court has no option but to proceed with the matter for final adjudication.
After the reference was made, following additional issues were framed by the Labour Court:-
(i) "Whether there exists any industrial dispute", if not, its effect?
(2) Whether the Court has jurisdiction to enter into and decide the matter" if not, its effect.
(iii) Whether the workman was employed as temporary labourer? if yes, its effect.
The workman Gajendra Singh appeared before the labour court and filed documents, namely W-1 to W-47 in support of his claim. In the cross- examination, he also admitted one of the documents filed by the employer which was numbered as Exhibit E-1. On behalf of the employer, EW-1 to EW-4 were examined as witnesses. An application 11-D alongwith the affidavit was filed by the respondent workman with the request that all the documents, attendance register etc. from 1.1.1993 to 14.10.1995 shall be produced by the employer. Upon order passed on the said application 11-D, the employer produced 50 documents with the list 21-E(3).
The case of the respondent workman is that he was engaged in the establishment on 1.1.1993 on the post of Turner after interview and worked till 14.10.1995. On 15.10.1995, when he reported for duty, he was not allowed to enter inside the factory premises. Thus he was wrongly deprived from discharging his duties and this is a case of illegal retrenchment. No charge sheet was issued nor any opportunity was given to him to defend himself. He was informed at the time of engagement that the work is of permanent nature and he has been kept for a period of six months on probation. In case, his work would be found satisfactory, he would be allowed to remain on the post. No appointment letter was given to him. As his work and conduct was satisfactory, he was allowed to work on the post of Turner. However, after a period one year he came to know that his name was recorded in the record as temporary workman.
It was stated that the petitioner employer indulged in unfair labour practices by giving artificial breaks. He agitated and demanded for permanent appointment and regularization from the date of his engagement. As a result of which, the employer got annoyed and refused to take work from him with effect from 15.10.1995. On account of the said fact, industrial dispute was raised by him.
Sri S.D. Singh, learned counsel for the petitioner employer submits that the labour court committed error in deciding the additional issues 1 & 2 as also the additional issue no. 3 in favour of the respondent workman. While deciding the additional issue no. 3 in favour of the workman, the labour court considered the statement of the witnesses of the employer wherein it was stated that the workman was being engaged for a definite period and as soon as the said period expired, his services automatically came to an end. The workman was being employed under an agreement for a period of engagement. He was paid wages for his working. The labour court wrongly concluded that in order to establish the said assertion, the employer has failed to produce any document and as such it cannot be said that the engagement of the workman was on the basis of any agreement and the services of the workman came to an end on account of the fact that the period of engagement had expired.
He further submits that the case of the workman placed before the labour court in his written statement itself was that he was never engaged on permanent basis. As per assertion of the workman he was well aware of the fact that he was recorded temporary and was being engaged on the availability of work. The employer had submitted in its written statement that the petitioner's establishment being a seasonal establishment, there was always necessity of extra work and on account of said exigency, the respondent workman was engaged in the month of January, 1993 as temporary Majdoor. Last engagement of workman was from 9.10.1995 to 14.10.1995. After expiry of the contractual period on 14.10.1995, the services of the workman came to an end automatically without involving any dispute as the right of his employment. There is no written contract between the workman and the employer and the workman has himself came up with the case that he demanded regularization/permanency of the job, the labour court has wrongly laid burden upon the employer to prove the nature of employment of the workman.
He further submits that the labour court while deciding the question of compensation of 240 days of service has failed to appreciate facts of the case and the legal position and wrongly drawn adverse inference against the petitioner employer. The submissions are (1) The details of engagement in the preceding 12 months from the date of alleged termination of service of the workman was given in paragraph 12 of the written statement filed by the petitioner. The respondent workman in his rejoinder affidavit has not specifically stated that he had worked in the months of April and May, 1995. Had it been the case of the workman in the rejoinder affidavit that he had worked in the months of April & May, 1995, the employer would have definitely produced the attendance register for the said months in order to substantiate its contention. In absence of pleading to that effect there was no occasion for employer to produce the attendance register for the months in which the respondent had not worked at all. The petitioner filed the attendance-cum pay register for all the months in which the respondent workman had worked, In absence of any denial on the part of the workman, the labour court committed a manifest error of law in drawing adverse inference against the petitioner for non-production of attendance-cum pay register for the two months, namely, April & May, 1995.
The attendance register for these months has been filed before this Court alongwith supplementary affidavit sworn on 27.1.2001. A perusal of the said document would establish that the respondent was never engaged during the said months. Even otherwise, it is well settled that burden lies upon the workmen to prove that he had worked for more than 240 days in the preceding 12 months. The workman filed documents, namely, attendance cards for the period of his engagement and failed to establish that he had worked for more than 240 days in the preceding 12 months from November, 1994 till October, 1995. Hence the finding of the labour court by drawing adverse inference against the petitioner cannot be sustained.
Moreover, it is trite that the relief of reinstatement with back wages is not automatic and the labour court has erred in granting relief as a matter of course.
He placed reliance upon the judgment of the Apex Court in Municipal Corporation, Faridabad vs. Siri Nivas reported in (2004) 8 SCC 195 and in Krishna Bhagya Jala Nigam Limited vs. Mohammad Rafi reported in (2009) 11 SCC 522.
Heard learned counsel for the parties and perused the record.
In so far as Issue no. 3 is concerned, findings of the labour court are erroneous for the reason that as per own case of the workman in the written statement he was engaged on temporary basis and demanded regularization. No appointment letter was issued to him. He worked intermittently for a definite period of his engagement and was paid wages.
The conclusion was drawn by the labour court that employer has failed to produce any documents to establish that it was a contractual appointment and hence answered the issue in favour of the workman. While coming to the said conclusion it totally ignored that it was never the case of the workman that the employment was under a written contract.
Further it is well settled that the burden to prove the nature of employment lies upon the workman. In the instant case, the workman had failed to discharge the same. The labour court has committed a manifest error of law in laying burden on the employer to prove that the workman was temporary employee. The Apex Court in Ganga Kisan Sahkari Chini Milla Ltd. vs. Jaiveer Singh reported in (2007) 7 SCC 748 held that "...The High Court noted that the workmen were not permanent employees. It was further noted that they failed to establish the nature of their appointment. No appointment orders were filed. It came to an abrupt conclusion that the burden of proof lay on the employer to establish the nature of appointment. The conclusion is clearly contrary to law...."
In view of above discussion, finding on issue no. 3 of the labour court regarding nature of employment of the workman cannot be sustained.
Now the question is whether the workman had completed more than 240 days service in the preceding 12 months of his alleged termination.
The counsel for the petitioner placed heavy reliance upon paragraph 12 of the written statement filed by employer before the labour court.
"12. That during preceding 12 months i.e. Nov, 1994 to Oct.,1995 the concerned workman was engaged for only 195 days as temporary mazdoor in the Engineering Deptt. of Sugar Factory to meet the need of extra hands, which arose during crushing season as well as in Off-season. The details of his engagement in the last preceding 12 months are as under:
The details of engagement of the workman with effect from November, 1994 till the month of October, 1995 i.e. preceding 12 months from 15.10.1995 has been given in paragraph12 of the written statement. On the basis of said detail, it was submitted by the employer that the workman was not engaged in the month of April and May, 1995 at all. It was further stated that the workman never worked throughout the year or he ever completed 240 days of service in the preceding 12 months. In reply to paragraph 12 of the written statement filed by the employer, in the rejoinder affidavit in paragraph 12 it was stated by the workman that:-
"12. That the attendance record of the applicant workman shown in paras 12 & 13 is absolutely wrong and false and fabricated ones. It is wrong to say that the applicant workman has worked only for 195 days preceding 12 months from the date of termination of his services. It is reasserted that the applicant workman was never engaged to meet the need of the extra hands or exigencies of work of the Opp. Party. Contrary to it he was a permanent turner and he worked as such for more than 240 days in the preceding year of the date of termination of his services. Rest being wrong and false are categorically denied. The opposite party is put to strict proof of it."
A perusal of the paragraph 12 of the rejoinder affidavit filed by the respondent workman indicates that the workman had categorically denied that he had worked for 195 days in the preceding 12 months from the date of termination of his services. He categorically stated that he had worked for more than 240 days in the preceding year of the termination of his services. He also put the petitioner to strict proof of the assertions made in paragraphs12 & 13 of the written statement.
The workman in his examination has stated that the documents W-1 to W-40 are attendance cards issued to him. He, however, submitted that these attendance cards do not indicate his exact period of working as his complete attendance was not being recorded therein. He stated that though the attendance was not recorded, however, he was paid wages for the days of working. It may further be noted that the workman filed an application 11-D alongwith an affidavit praying that the employer be directed to produce all the documents including the attendance register for his period of working with effect from 1.1.1993 to 14.10.1995. However, the employer produced the attendance registers from November, 1994 till 14.10.1995 i.e. 12 months from the date of his retrenchment i.e. 15.10.1995. Out of these 12 months, the attendance register for the months of April and May, 1995 were not produced by the employer. The reason given for non-production of the attendance register for this period was that the employee did not work in the said months and therefore the said registers were not produced.
While refuting the statement of the employer, the workman submitted that the attendance registers were intentionally retained by the employer as they would have proved that he had worked for more than 240 days in the preceding 12 months. In case, the employer wanted to prove that the workman did not work for the aforesaid period, they ought to have produced the attendance register and establish the same. On account of non-production of attendance register for two months i.e. the months of April and May, 1995, the labour court drawn adverse inference against the employer-establishment and concluded that the workman had worked for more than 240 days in the preceding 12 months, therefore, the provisions of Section 6-N of the Act would be applicable in the facts and circumstances of the case. It was held that it is a case of retrenchment without following the provisions of Section 6-N of the Act, hence the respondent workman is entitled to reinstatement with back wages and continuity of service.
It may be noted that the provisions of The Indian Evidence Act, 1872 per se are not applicable in an industrial adjudication. The general principle of it is applicable. It is a cardinal rule of Industrial Law that the burden of proof is upon the workman to show that he had worked for more than 240 days in the preceding 12 months prior to his alleged termination In terms of Section 6-N of the Industrial Disputes Act, the retrenchment of workman would be effective only when the condition precedent therefor are satisfied. Section 6-N of the Industrial Disputes Act is as follows:-
"6-N Conditions precedent to retrenchment of workmen:- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,-
(a) the workman has been given one month's notice in writing indicating the reason for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages of the period of the notice;
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the State Government."
Section 6-N of the Act postulates two conditions,namely (1) one month notice in writing indicating reasons for retrenchment and the period of notice has expired or wages in lieu thereof;(2) Compensation equivalent to 15 days average pay for every completed year of service or part thereof in excess of six months.
From the award, it is does appear that the workman produced the documents in his possession in order to discharge his burden. He produced the documents, namely W-1 to W-40 i.e. attendance cards in his possession and further stated that the attendance marked therein is not complete. He further moved an application 11-D alongwith the affidavit in order to get attendance registers for the period of his engagement i.e. from 1.1.1993 till 14.10.1995 which were definitely not in his possession. Thus the burden laid upon the workman discharged and onus shifted upon the petitioner employer to prove its assertions that the respondent workman had worked only for 195 days in the preceding 12 months of his retrenchment. The petitioner having failed to produce the attendance register for two months i.e. April and May, 1995 before the Labour Court, the labour court was compelled to draw an adverse inference in terms of Section 114 illustration (g) of the Evidence Act,1872.
The Apex Court in the case of Sriram Industrial Enterprises Ltd. vs. Mahak Singh & others reported in (2007) 4 SCC 94 in paragraph 34 has held as under:-
"Having correctly interpreted the provisions of Section 6-N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the attendance registers and the muster rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer case were watered down by the subsequent decision in R.M. Yellatti case and in our view the workmen had discharged their initial onus by production of the documents in their possession."
Learned counsel for the petitioner relied upon judgment passed in Krishna Bhagya Jala Nigam Limited vs. Mohammed Rafi reported in (2009) 11 SCC 522. It has been held that the burden placed upon the employer having not been discharged, the Apex Court relied upon various judgments mentioned therein and reiterated that the initial burden of proof was on the workman to show that he had completed 240 days service and the Tribunal's view that the burden was on the employer, was erroneous. While coming to the said conclusion, the Apex Court had considered various judgments wherein the burden having not been discharged by the employee by adducing evidence both oral and documentary. The Apex Court has considered the law laid down in "R.M. Yellatti vs. Executive Engineer", wherein it was held that mere affidavits or self-serving statement made by the claimant workman will not suffice in the matter of discharge of burden placed by law on the workman to prove that he had worked for 240 days in a given year. The conclusion drawn by the Apex Court in the case of Krishna Bhagya Jala Nigam Limited (supra) was in the circumstance of the case where the workman had not discharged the initial onus of proving that he had worked for more than 240 days with the employer.
Learned counsel for the petitioner further relied upon the judgment passed in the case of (2004) 8 SCC 195 (Municipal Corporation, Faridabad vs. Siri Niwas) wherein it has been held that the burden of proof was on the respondent workman to show that he had worked for 240 days in the preceding 12 months prior to his alleged retrenchment. However, in the said case from the award it was clear that the workman did not adduce any evidence whatsoever in support of his contention. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant therein including the muster rolls. Further it was observed in paragraph 15 that presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis.
The appellant employer Municipal Corporation, Faridabad (supra) produced some documents before the High Court but the same were not accepted. The High Court proceeded to pass the judgment only on the basis of the materials relied on by the parties before the tribunal and has set aside the award of the Tribunal drawing adverse inference against the appellant for non-producing the muster rolls.
Thus, it was a case where the workman neither adduced any evidence nor came forward to call the employer to produce the documents in their possession. In paragraph 15 of the said judgment the Apex Court observed that "The matter, however, would be different where despite direction by a court the evidence is withheld."
In the instant case, The attendance registers being best piece of evidence in possession of the petitioner was withheld despite being a direction of the labour court to produce the same. It was within the jurisdiction of the labour court to draw adverse inference, particularly, having regard to the nature of evidence adduced by the respondent. It is not a case where no document has been produced by the workman. It is a case where the workman has come forward calling upon the employer to produce the best piece of evidence in its possession, rather it is a case where the workman shown utmost diligence and moved an application alongwith an affidavit requesting the labour court to ask the employer to produce attendance register from 1.1.1993 to 14.10.1995 i.e. the period of his engagement. The order having been passed by the labour court for producing all the documents by the petitioner, there was no reason for the petitioner to withhold the attendance register for the months of April and May, 1995.
The respondent workman having produced some evidence in support of his case, the labour court committed no error in drawing adverse inference against the petitioner for non-production of the attendance register for the months of April and May, 1995.
In view of above discussion, the ratio of judgments relied upon by the learned counsel for the petitioner in the Krishna Bhagya Jala Nigam Limited (supra) and Municipal Corporation (supra) is not applicable in the peculiar facts and circumstance of the present case.
However, the attendance registers for the months of April and May, 1995 had been produced before this Court alongwith a supplementary affidavit filed in the present petition.
It may be noted that the respondent workman has not come forward to rebut the assertions made either in the writ petition or the supplementary affidavit despite service of notice upon him. He appeared through his counsel at the time of admission of the writ petition but did not contest the writ petition at all. It was further informed by the learned counsel for the petitioner that respondent workman did not join the petitioner establishment even after the interim order dated 14.2.2001 whereby he was allowed to join his duties and employer was directed to pay him regular wages. The order was passed in presence of counsel for the respondent who filed caveat on his behalf.
From the above discussion, it appears that respondent workman was not interested in working in the establishment and raised an industrial dispute with an intention to get his services regularized in the garb of termination. Moreover, it is trite that the award of reinstatement and back wages is not granted as a matter of course. Admittedly, the respondent is not working since October, 1995.
Having considered carefully the submission made on behalf of the learned counsel for the petitioner, and supporting provisions of law laid down by the Apex Court, this Court is of the view that in view of the peculiar facts and circumstances of this case, directing the petitioner to reinstate the workman would be unrealistic and the interest of justice would be subserved if a sum of Rs.50,000/- is directed to be paid to the respondent workman as was directed in the case of Haryana State Electronics Development Corporation Limited vs. Mamni reported in (2006) 9 SCC 434 and Jaipur Development Authority vs. Ramsahai and another reported in (2006) 11 SCC 684.
It is therefore directed that the petitioner employer shall pay an amount of Rs.50,000/- (Rs. Fifty Thousand) to the respondent workman within a period three months from the date of this order failing which it will accrue 8% interest till the date of payment. .
The writ petition is disposed of accordingly.
Order Date :- 31.7.2012 P.P.