IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1583 of 2012 In SPECIAL CIVIL APPLICATION NO. 7335 of 2011 With CIVIL APPLICATION NO. 13384 of 2012 In LETTERS PATENT APPEAL NO. 1583 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 ?
================================================================ STATE OF GUJARAT THROUGH DY. EXECUTIVE ENGINEER Appellant(s) Versus KALUBHAI SHANABHAI MALIVAD Respondent(s) ================================================================ Appearance:
MR URSHIT OZA, ASST.GOVERNMENT PLEADER for the Appellant No. 1 MR UT MISHRA, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and
HONOURABLE MR.JUSTICE S.G.SHAH
Date : 18/12/2012 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE S.G.SHAH)
1. The State has preferred this appeal against the judgment and order dated 9.8.2011 passed in Special Civil Application No.7335 of 2011 whereby the State has challenged the order of reinstatement of the respondent herein, which was confirmed by the learned Labour Court, Godhra in Reference (LCG) No.430 of 2000 on 12.7.2010.
2. Heard learned A.G.P. Mr.Urshit Oza for the appellant and learned advocate Mr.U.T.Mishra for the respondent, who is present before Court in view of the notice issued in Civil Application No.11449 of 2011 for condoning the delay in filing the appeal. Both the learned counsel have agreed to take upon the appeal for final hearing on merits.
3. Though it is the case of the appellant before the learned single Judge as well as before this Court that respondent workman was never serving under them and, therefore, there is no question of reinstatement and that it is the primary duty of the workman to prove his case by leading cogent evidence before the Labour Court, the fact remains that before the Labour Court, when the matter was dealt with for evidence, the respondent has asked for production of certain documents, and in response, the appellant herein has simply stated that they are not in possession of such documents.
4. In our considered opinion, in such a case, the State authority cannot claim the privilege by not producing relevant information and documents on record by them either to prove or disprove particular thing. The law is clear that poor litigant cannot be blamed when he does not hold the original evidence under his control when the evidence is within the control of the State authority. It is the duty of the State authority to come forward with a specific evidence that the employee is not serving with them at all. To prove such fact, simple disclosure that they do not have documents, which were sought for by the employee is not enough when the employee has categorically stated in his evidence that the State was getting work from him in different sections, namely, Bhadar Naher Peta Vibhag No.3 and 4 and 5 and 6 and 7 as per their requirement and when respondent's case is also to the similar effect that Bhadar Naher Peta Vibhag No.4 is not in existence, but Bhadar Canal Distribution Sub Division only is in existence at the time of litigation before the Labour Court, it would be appropriate for the State to come forward with all relevant documents of all such Sub-Divisions and to show specifically that any employee had never worked in any of such Sub-Section of Bhadar Canal Distribution Work.
5. It is surprising to note that the State, though knowing fully well that the Sub- Section of the Bhadar Canal Distribution Sub Division are given in accordance with their requirement, and if after completion of work of irrigation of canal, if the entire work is now known as Bhadar Canal Distribution Sub Division and if employee had worked under the State of Gujarat in the same department but under the different part of the same department i.e. Sub-Section 3 or 4 or 5 or 6 or 7 and, ultimately, all such work was renamed as Bhadar Canal Distribution Sub Division, then, how to deny the constitutional benefit and right to the workman when he has worked for requisite number of days with the appellant.
6. 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.
7. 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.”
8. 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.”
9. 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.
10. For the foregoing reasons, the Letters Patent Appeal stands dismissed.
11. Accordingly, the Civil Application also stands disposed of.
(V.M.SAHAI, J.) (binoy) (S.G.SHAH, J.)