1. Heard learned Standing Counsel for the petitioner and Sri Gopal Narain, learned counsel for respondent No.2.
2. Writ petition is directed against award dated 29th August, 1997 given by Industrial Tribunal, (V) U.P. Meerut in Adjudication Case No.156/94 declaring termination of workman respondent No.2 w.e.f. 11.10.1991 as illegal and unjustified and holding him entitled for relief of reinstatement with backwages and continuity of service.
3. The case set up by the employer is that the workman was a Seasonal daily wage employee and has not worked for 240 days in preceding 12 months, inasmuch as, as per the record of department has worked only for 218 days, therefore, allegation that he has been retrenched illegally are incorrect. The Tribunal formulated the following three issues:
Issue No.1:- "Whether the workman was a seasonal workman as alleged in para 12 of the employers written statement?"
Issue No.2:- "Whether the workman concerned was a daily wager or he was getting monthly salary, Either way, its effect?"
Issue No.3:- "Whether the workman concerned had completed more than 240 days of service in last year of his service? If so, its effect?"
4. So far as evidence is concerned, the award shows that the workman examined himself and filed four documents which are said to have been proved by him. These documents are exhibited as W.W.-1/1A, Ext.W.-1/1C, Ext. W.W./1/1B and Ext. W.W.-1/1D. The nature of these documents is not very clear except of a letter said to have been submitted by workman himself stating that he has worked in the year 1991 and 1992 as Beldar and therefore, his name be forwarded to higher authorities for regularization. It was also claimed that some other workers were also recommended for regularization in the similar circumstances. The petitioner said to have filed photocopies of muster roll but since the original record was not produced, Tribunal did not place any reliance thereon. Having said so, this Court find it really strange that all the issues have been answered in favour of the workman by simply observing that employer has failed to prove otherwise, without discussing any evidence, any material etc. The findings recorded by Tribunal in respect to three issues, it would be appropriate to reproduce hereat:
"Issue No.1:- The version of the employer that the workman was a seasonal workman and used to be employed casually as and when work demanded is not proved by the employer's evidence. In fact, the employer's witness stated that the workman was continuously employed for more than 240 days and was paid as such and that nature of his work was of permanent nature. Nowhere, the employer has mentioned the nature of casual work for the period when such work arose. In order to support his version, the employers should have shown exactly what work and when such work was done casually by the workman concerned. Therefore, the issue is decided in negative.
Issue No.2:- From the evidence of the parties discussed earlier, it is clear that the workman was getting his wages on monthly basis, though he was treated as daily wager by the employer. Since the witness of employer confirmed that the workman was paid on monthly basis and that nature of his work was of a regular basis, I hold that the workman was paid on monthly basis and though he was shown as daily wager, in fact, he was a regular workman.
Issue No.3.:- As to the question whether the workman concerned had completed more than 240 days of service in the last year of his service is clear from the evidence on record that he had completed continuous service of 240 days. In view of the facts and evidence which has been discussed above, which need not be required to be repeated. I hold that the workman had completed more than 240 days of service in the last year of his service and his services could not have been terminated without giving him due notice and compensation as per requirement of Sec.6-N of the U.P. Industrial Disputes Act, 1947. Issue is decided accordingly.
The employer's version that the workman was a daily wager and worked casually is not supported by the evidence tendered by them. On the other side, the workman has proved that he worked for more than 240 days in the last year of his service and that his services were terminated without following legal procedure. Since the termination of Shri Suresh Giri, the workman concerned was illegal, he is entitled to reinstatement and to get benefits of continuous service as well as the wages."
5. To my mind, the approach of Tribunal is clearly erroneous and shows patent error of law apparent on the face of record on account whereof the impugned award cannot sustain.
6. The issues no. 1 and 3 are such which were the responsibility of the workman to prove. The nature of employment/appointment of the workman was to be proved by him as also he has to prove that he has worked for 240 days and more in the preceding 12 months. There is nothing in the award to show that except mere assumption on the part of Tribunal, workman, in any manner discharged the above burden. It is true that the record must be available with the employer but if the workman intended to rely upon certain document which were in the possession of the employer, he could have summoned the same but there is nothing evident from the record that any such attempt was made by the workman and the employer having failed to produced the document, the Tribunal has drawn an adverse inference thereagainst. In fact the Tribunal has placed onus in a reverse manner on the employer and has answered the issues by observing that the employer failed to prove the pleadings of the employer and very categorically and specific and in order to dislodge thereto, it was incumbent upon the workman to adduce evidence and prove his case otherwise he was bound to suffer.
7. In Manager, Reserve Bank of India, Bangalore Vs. S.Mani & Ors. JT 2005 (3) SC 248, it is said:
"The initial burden of proof was on the workmen to show that they had completed 240 days of service."
8. In Range Foresh Officer Vs. S.T. Hadimani 2002(3) SCC 25, the Court said:
"In our opinion the Tribunal was not right in placing the onus on the Management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
9. Reiterating it in Municipal Corporation, Faridabad Vs. Siri Niwas 2004(8) SCC 195, the Court said:
"The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment."
10. This decision has been followed in R.M.Yellatti Vs. The Asst. Executive Engineer 2006(1) SCC 106.
11. The above view has also been reiterated in G.M., BSNL & Ors. Vs. Mahesh Chand 2008(3) SCC 474, Ranip Nagar Palika Vs. Bahuji Gabhaji Thakore & Ors.2007(3)SCALE 436 and Amar Chakraverti & Ors. Vs. Maruti Suzuki 2010 (12) SCALE 536.
12. In the present case the Tribunal has decided the matter in most cursory and illegal manner. The impugned award cannot sustain.
13. The writ petition is allowed. The impugned award dated 29th August, 1997 (Annexure 1 to the writ petition), is hereby set aside. The matter is remanded to the Industrial Tribunal (V) U.P., Meerut to reconsider the matter and pass a fresh order in accordance with law after giving due opportunity of hearing to all concerned parties.
Order Date :- 2.5.2012 KA