IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1635 of 2012 In SPECIAL CIVIL APPLICATION NO. 11045 of 2002 With CIVIL APPLICATION NO. 13733 of 2012 In LETTERS PATENT APPEAL NO. 1635 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH ================================================================
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 ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ PRIMARY HEALTH CENTRE & 1 Appellant(s) Versus K.R.LALPURWALA Respondent(s) ================================================================ Appearance:
MR HS MUNSHAW, ADVOCATE for the Appellant(s) No. 1 - 2 MR YV SHAH, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE S.G.SHAH
Date : 19/12/2012 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE S.G.SHAH)
1. The judgment and order dated 13.4.2012 passed in Special Civil Application No.11045 of 2002 with Special Civil Application No.2750 of 2003 is under challenge in the present appeal by the employer. By the impugned judgment, the learned single Judge has dismissed the application of the employer wherein they have challenged the order dated 13.5.2002 by the Labour Court, Godhra in Reference No.271 of 1994 reinstating the respondent – employee. Such reinstatement was without backwages, but with condition to reinstate the workman at the same place and to pay Rs.500/- as cost of such litigation.
2. Heard learned advocate Mr.H.S.Munshaw for the appellant and learned advocate Mr.Y.V.Shah for the respondent, who is present before Court in view of the notice issued in Civil Application No.8467 of 2012 for condonation of delay. Both the learned counsel have agreed to take upon the appeal for final hearing on merits.
3. The sum and substance of the appeal is such that workman was never in service of the present appellant since it was reinstatement and reorganized and that workman was appointed as Multipurpose Health Worker purely on temporary basis for the period of one year only on adhoc basis and on time bound job and, therefore, no right had accrued in favour of the respondent workman to get reinstatement and that initially civil suit was preferred by the workman wherein he lost and Special Civil Application No.9245 of 1992 was also rejected by this Court on the same subject. It is further submitted that after losing the legal battle as aforesaid, workman has left the job, had approached the Labour Court by way of filing Reference (LCV) No.272 of 1994 and he does not have experience to work as Multipurpose Health Worker and there cannot be reinstatement after 18 years. It is further submitted that workman cannot take benefit of interim orders by which he was serving with the appellant when he was taken in job without following due process of law.
4. On perusal of the impugned award by the Labour Court and judgment of the learned single Judge, it is clear that the respondent was appointed as Multipurpose Health Worker on 1.12.1989 and he served on such post till 12.5.1994 and that the Labour Court on appreciation of evidence as led by the workman as well as by the appellant employer, came to the conclusion that workman has completed 240 days. It is also clear from the record that Labour Court has also given ample opportunity to the employer to prove their case, but the witness of the employer could not produce the relevant register to prove their case. The learned single Judge has also considered that out of existing 50 posts of Multipurpose Health Worker, only 31 posts were filled in and there was vacancy of 19 posts. It has also came on record before the Labour Court that some persons, who had joined as adhoc employees after the present respondents and who were juniors to the present respondent, were made permanent. Therefore, only because respondent has selected different channel of jurisdiction i.e. instead of approaching Labour Court initially he had approached the Civil Court, and when the respondent has worked for 5 years, the decision by the Civil Court and Special Civil Application against such judgment cannot come in way of the workman – respondent to get his legitimate right, more particularly, when judgment of such cases were not produced on record.
5. The only argument that remains by the appellant is with reference to the onus of proof. As stated earlier, though the law says that in general, onus of proof is on the litigant, who claims particular fact, but at the same time, it cannot be ignored that in such a case, onus of proof rests upon the authority, which owns the original evidence under their control and not upon the poor workman, who does not have requisite information or evidence in his hands except the information that he has worked under such authority.
6. Above principle is approved by Hon'ble the Apex Court in the case of R.M.Yellatti Vs.Asstt.Executive Engineer reported in (2006)1 SCC 106 wherein the Full Bench had held that -
“The provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading decisions of the Supreme Court on this point, it is found that the Supreme 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 workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. Mere affidavits or self-serving statements made by the claimant/workman 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.
In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. Mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management.
Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case.”
7. If we consider the factual details of this appeal, it is clear that in said reported case also, the Hon'ble Apex Court has considered non-production of relevant information by the State when the workman had called upon the management to produce the relevant evidence and when State has failed to produce the same, it is further held by the Hon'ble Apex Court that -
“The State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government.”
8. In view of the above facts and circumstances, there is neither irregularity nor illegality in the impugned judgment. The learned A.G.P. has also failed to show anything adverse to such aspect and more particularly when there is decision of the Apex Court touching the same point, we do not find any reason to disturb the judgment and findings of the learned single Judge. Therefore, the appeal lacks merits and deserves to be dismissed.
9. For the foregoing reasons, the Letters Patent Appeal stands dismissed.
10. Accordingly, the Civil Application also stands disposed of.
(V.M.SAHAI, J.) (binoy) (S.G.SHAH, J.)