Court No. - 36
Case :- WRIT - C No. - 25099 of 2018 Petitioner :- State Of U P Through Executive Engineer Aligarh Division Respondent :- Presiding Officer, Labour Court And Another Counsel for Petitioner :- Arvind Kumar Counsel for Respondent :- Surya Prakash Singh
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the Labour Court award dated 17.11.2017 published on 02.02.2018 passed by the Presiding Officer, Labour court, U.P. Agra in Adjudication case no.166 of 2004.
On the dispute raised by the respondent-workman with regard to termination of his services w.e.f 01.03.2002 from the post of Beldar, an industrial dispute was raised and the reference was made on 24.09.2004 in CP-27 of 2004 under Section 4-K of U.P. Industrial Disputes Act' 1947.
Notices were issued to the opposite party and both the parties were given opportunity to lead evidence. The workman filed an affidavit 6-A with the written statement that he was engaged on 01.05.1978 in Work Charge Establishment of the respondent department and had worked in the said capacity till 16.06.1988 on the post of Chowkidar. Certain certificates/documents of working of the workman for the said period were also brought on record.
It was further stated that the workman was engaged on 09.10.1991 on daily wage basis and worked till 28.02.2002 in the work of cleaning of the cannal and wages was being paid to him as muster roll employee by issuing a pay slip. He was getting Rs.80/- per day towards wages, however, his services were orally terminated w.e.f 28.02.2002. It is further stated that juniors to the respondent have been retained in employment of the respondent establishment and only he has been retrenched without any notice or compensation in lieu thereof.
The petitioner-employer had filed a written statement to state that the workman did not work for a single day in the respondent establishment and that there was no record of his working in the department and as such no relief can be granted to the workman by the Labour Court. In so far as the working of the respondent- workman from 01.05.1978 till 16.06.1988, it is submitted that the record of the said period was not available being very old.
The workman filed a replication and categorically stated that his working can be verified from the service book of work charge employees, diary no.1495, cash book of the office of Assistant Engineer-Ist, Aligarh Division, Ganga Nahar Aligarh as also the records maintained by the accountant for keeping Chowkidar and Beldar for cleaning of mines till the year 2002. It was categorically stated therein that the records of engagement of work charge employees with the sanction letters and their working namely the work charge register, list of work charge employee and the cash book etc. from the year 1991 to 2002 of the department concerned, should be summoned from the employer which would prove the working of the workman in the department.
It is categorically recorded by the labour court that despite repeated opportunity granted to the petitioner-employer by orders passed from time to time to produce the records relating to engagement and working of the work charge employees working in the department, no such records were produced before the labour court.
It is noteworthy that from the list 1-B-2 and 26-B-2, the workman filed certain documentary evidences and further from application 27-D, the workman requested the labour court to summon the record from 01.05.1978 till 28.02.2002 which are in possession of the respondent-employer.
The said application was contested by the employer with the assertion that the records pertaining to the year 1978 till 1986 are old records and are not available in the establishment.
In so far as the records of working of the workman from the year 1994 to 2002,nothing was placed before the labour court. As a result of it, adverse inference has been drawn by the labour court against the petitioner-employer for withholding best evidence.
The labour court has relied upon the judgement of this Court in that of the Apex Court in R.M. Yellati V. Asst. Executive Engineer reported in 2006 108 FLR 213 to hold that though the initial burden was on the part of the workman to show that he has completed 240 days of service but as soon as the workman filed documents to show that he has worked in the department concerned, the onus shifted upon the employer and the employer being in possession of the best evidence was required to produce the records in their possession to dispute the contention of the workman that of his continuous working in the establishment. As the employer had failed to discharge the burden and further withheld the best evidence lying with them in the form of register of engagement of work charge employees and daily wagers, their attendance register and the muster roll i.e. the record of payment of wages to work charge and daily wage employees in the department.
As these documents were not produced by the respondent- employer despite repeated directions issued by the labour court, this court is, therefore, of the considered view that the labour court cannot be said to have erred in drawing adverse inference against the employer and to hold that the workman had worked for more than 240 days in one calender year in the respondent-department and there was no justification for dispensing with his services.
The reinstatement has been awarded in the same capacity in which, the respondent-workman was working on the date of dispensation of his services i.e. 01.03.2002.
In so far as the back wages is concerned, only an amount of Rs.90,000/- has been paid to the workman as one time compensation.
The order of reinstatement of the workman as daily wager and the payment of compensation for wrongful dispensation of his services i.e. for illegally restraining the workman from working in the establishment cannot be said to suffer from any error of law.
Lastly learned counsel for the petitioner has vehemently argued that in the affidavit filed before the labour court the workman has described him being 38 years of age in the year 2005. The result is that he was 10 years of age in the year 1978 when he was allegedly engaged for the first time. This fact itself frustrate the case of the workman that he was engaged in the department concerned at any point of time.
The above noted submission made by learned counsel for the petitioner are not required to be examined before this Court for the simple reason that the said argument was neither raised nor pressed before the labour court. The material which are being referred to press the said submission before this Court were very well on the records of the labour court.
It is settled principle of law that a fresh plea cannot be raised in the writ petition which would require examination of evidence. The said submission, therefore, cannot be entertained by this Court in the power of judicial review under Article 226 of the Constitution of India. This Court cannot sit in appeal over the order of the Labour Court.
For the above noted reasons, no infirmity is found in the award of the labour court.
The writ petition is found devoid of merits and hence dismissed. Order Date :- 27.7.2018 Himanshu