After a reference was made by the State Government on 11.8.2008 the matter was taken up by the Labour Court and an award was passed on 9.9.2010. The same was challenged by the petitioners by means of a writ petition numbered as Writ Petition No. 37342 of 2011. On 14.5.2013, the writ petition was allowed and the matter was remanded back to the Labour Court with certain directions. The Labour Court again passed an order in favour of the petitioners on 26.9.2013, hence the instant writ petition.
The reference as was made by the State of U.P. was to the following effect:-
ÞD;k lsok;kstd }kjk layXu ifjf'k"V esa vafdr 25 Jfedksa dks osrueku :0 2550&3200 u fn;k tkuk o fnukad 11-07-2006 ls lsok lekIr fd;k tkuk mfpr [email protected] oS/kkfud gS\ ;fn ugha rks lacaf/kr Jfed x.k D;k [email protected]'ke ikus dk vf/kdjh gS fd frfFk ls ,oe~ vU; fdu fooj.kksa lfgrA^ Initially when the award was passed on 9.9.2010, the Labour Court had found that the 25 workmen were wrongly removed on 11.7.2006. It had also found that the workmen had to be given salary in the scale of Rs. 2500-3200. However, no back wages were given. They were ordered to be reinstated in service and also a direction was issued that an endeavour was to be made to regularize their services. The petitioner in the instant writ petition and the workmen filed certain writ petitions. They were all connected and were decided on 14.5.2013 and the matter was remanded back to the Labour Court with the following directions:-
I. To decide as to whether the workmen had worked for more than 240 days. The workers were to file proper applications requesting the Labour Court to direct the production of all the documents which were in their possession to come to a conclusion as to whether the workmen had put in 240 days.
II. The issue with regard to the pay scale in which the petitioners had to be paid their salary had also to be decided afresh by the Labour Court.
After the remand the Labour Court decided the matter afresh on 26.9.2013 and held that the workmen were wrongly removed from their service on 11.7.2006 and that they were to be given pay in the scale of 2550-3200. Reinstatement with continuity of service was also ordered. Aggrieved by the Award, the petitioner filed the instant writ petition. Learned counsel made the following submissions:-
1. If the petitioners were unable to produce the documents which were directed to be produced by the Tribunal then no adverse inference ought to be drawn against the petitioner.
2. The burden to prove that the workmen had worked for 240 days in a particular calendar year was wrongly shifted on the shoulders of the employer. In fact it was the duty of the workmen to have shown that they had worked for more than 240 days continuously.
3. It was further claimed that the workmen were not the employees of the petitioner at all.
4. It was still further contended that since the appointments, if at all were there, were dehorse the Rules, no advantage could be drawn by the workmen.
5. Regularization could only be directed if there were Rules directing regularization.
In reply, learned counsel for the respondents has submitted that when evidence is being led and all the evidence comes on the record then on whose shoulders the burden to prove a particular fact is there cannot be specifically stated. It is then the duty of the Court to glean out the correct facts from the evidence which already was there on record. He further made the following submissions.
I. When the workmen had filed an application No. 30D and had sought for an order from the Labour Court for the production of the relevant attendance registers, service books, the list of permanent switch-men, leave applications given by permanent switch-men, then no objection was filed by the Nagar Nigam against the application and, therefore, the labour Court had directed for the production of the documents asked for by its order dated 9.7.2013.
II. The counsel for the respondent workmen further submitted that the petitioners could not be excused for the non production of documents on the pretext that the record was old.
III. Since before the Labour Court the best evidence which was in the possession of the employers was being withheld then an adverse inference had to be drawn against the employers. Learned counsel to bolster his submissions relied upon a judgment reported in 2010 (1) SCC 47 : Director, Fisheries Terminal Department vs. Bhikubhai Meghajibhai Chavda and since he relied upon paragraph 16, 17, 19, and 21, the same are being reproduced here as under:-
Paragraph 16. This court in the case of R.M. Yellatti v. Asstt. Executive Engineer1, has observed :
"17. ......However, applying general principles and on reading the aforesaid judgments, we find that this Court, 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 workmen stepping up in the witness box. This burden is discharged upon the workmen adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment or of termination. There will also be no receipt of proof of payment. Thus in most cases, the workmen (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
Paragraph 17. 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 workmen hired on a daily wage 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 official 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.
Paragraph 19. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas2 where it is observed:
"15. A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
Paragraph 21. The labour court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference.
Further learned counsel submitted that the direction for payment of equal pay for equal work and reinstatement of the workmen also was correct and no fault could be found with it. He relied upon a Supreme Court decision reported in 2009 (8) SCC 556 : Maharashtra State Road Transport Corporation and Another vs. Casteribe Rajya Parivahan Karmchari Sanghatana and submitted that workmen should be paid for the work which they were doing and even if they were temporary employees they should be given just the same wage as a permanent employee would get for doing the same work and further submitted that if this was not done then it amounted to unfair labour practice. Since the learned counsel for the respondents read out paragraphs no. 32, 33, 34, 35 and 36 from the case reported in 2009 (8) SCC 556, the same are being reproduced here as under:-
Paragraph 32.The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years , with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
Paragraph 33.The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi(3)3. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
Paragraph 34. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn.7 arising out of industrial adjudication has been considered in Umadevi(3) and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi1 leaves no manner of doubt that what this Court was concerned in Umadevi(3) was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.
Paragraph 35. Umadevi(3) is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme.
Paragraph 36. Umadevi(3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi(3) cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.
He also relied upon a decision reported in 2014 (5) AWC 5366 (SC) : Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Ltd. and submitted that by awarding the basic scale of a permanent employee, the workmen were safe from being victims of unfair Labour practices. He relied upon paragraph 23, 24 and 25 and, therefore, the same are being reproduced here as under:-
"23.Very interestingly, the periods of service extends to close to 6 years save the artificial breaks made by the respondent with an oblique motive so as to retain the appellant as a temporary worker and deprive the appellant of his statutory right of permanent worker status. The aforesaid conduct of the respondent perpetuates ''unfair labour practice as defined under Section 2(ra) of the I.D. Act, which is not permissible in view of Sections 25T and 25U of the I.D. Act read with entry at Serial No. 10 in the Vth Schedule to the I.D. Act regarding unfair labour practices. Section 2(ra) reads thus:
"unfair labour practice" means any of the practices mentioned in the Vth Schedule.
Further, Entry 10 of Vth Schedule reads as under:
"5. To discharge or dismiss workmen -
.......
(10). To employ workmen as ''badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
24. The respondent, in order to mitigate its conduct towards the appellant has claimed that the appellant was appointed solely on contract basis, and his service has been terminated in the manner permissible under Section 2 (oo)(bb) of the I.D. Act. However, we shall not accept this contention of the respondent for the following reasons:-
(i) Firstly, the respondent has not produced any material evidence on record before the Labour Court to prove that it meets all the required criteria under the Contract Labour (Regulation and Abolition) Act, 1970, to be eligible to employ employees on contractual basis which includes license number etc.
(ii) Secondly, the respondent could not produce any material evidence on record before the Labour Court to show that the appellant was employed for any particular project(s) on the completion of which his service has been terminated through non-renewal of his contract of employment.
25. Therefore, we deem it fit to construe that the appellant has rendered continuous service for six continuous years (save the artificially imposed break) as provided under Section 25B of the I.D. Act and can therefore be subjected to retrenchment only through the procedure mentioned in the I.D. Act or the state Act in pari materia."
Learned counsel for the respondents further submitted that this Court had a very limited scope in interfering with the award of a Labour Court and to bolster his submission he cited 2015 (12) SCC 754 : (Gauri Shanker vs. State of Rajasthan). As the learned counsel read out paragraph 23 and 24 of the judgement, the same are being reproduced here as under:
"23. The learned Singe Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in Harhinder Singh v. Punjab State Warehousing Corporation wherein this Court has held thus:
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that:
"10.....the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.
(State of Mysore v. Workers of Gold Mines (AIR 1958 SC 923) page 928, para 10)"
The said principle has been reiterated by this Court in Jasmer Singh v. State of Haryana ((2015) 4 SCC 458 : (2015) 2 SCC (L&S) 46)
24. Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workmen has worked from 1.1.1987 to 1.4.1992 and that non-compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent-Department rendered its action of termination of the services of the workmen as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court.
He further cited 2012(5) SCC 443 : (Heinz India Private Limited and Another vs. State of Uttar Pradesh and Others, 2003 (3) UPLBEC 2286 : Ram Prasad Prajapati vs. Labour Court(U.P.) at Allahabad and another and 2010 (3) SCC 192 : (Harjinder Singh v. Punjab State Warehousing Corpn.), on this issue.
In the end learned counsel for the respondents specifically submitted that when the remand was made by this Court by its order dated 14.5.2013 that the petitioner Nagar Nigam had to produce the records if they were asked for, then non-production of the records had to lead to only one inference and that was that the petitioner was withholding the evidence which was available with it.
Having heard the learned counsel for the parties and after having gone through the record of the case, it is evident that after the remand was made by this court, the petitioner did not abide by the direction of the Labour Court, which had no other option but to draw an adverse inference against the petitioner. Further, I find that the workmen had discharged their burden of proof regarding the fact that they had worked for 240 days and thus the finding of the Labour Court cannot be interfered with. When the notice as per the Section 6-N of the U.P. Industrial Disputes Act, 1947, was not there then it was proper for the Labour Court to have found that the retrenchment was wrongly done.
Further, the Labour Court very correctly found that for the work which the workmen were performing they ought to have been paid in the scale of Rs. 2550-3200 and no interference is required. There is, thus, no possibility of any interference with the findings as have been arrived at by the Labour Court.
The writ petition is, therefore, dismissed.
Order Date :- 28.5.2018 praveen.