1. Heard Sri Diptiman Singh, learned counsel for the petitioner and Sri Ram Prakash Pandey, learned counsel appearing for the respondent no. 3.
2. The present petition seeks to challenge the award of the Labour Court U.P. Saharanpur dated 30.3.2011 passed in Adjudication Case No. 14 of 2006 in the matter of M/s Triveni Engineering and Industries Limited (Sugar Unit) Khatauli and Sant Ram in terms of which the Labour Court has granted the relief of reinstatement to the respondent-workman on the post of Seasonal Weighment Clerk with continuity of service from the season 2004-05 onwards with full back wages and consequential reliefs.
3. Briefly stated the facts of the case are as follows :-
4. Upon an industrial dispute having been raised by the respondent no. 3-workman, the State Government, on 31.12.2005, made a reference under Section 4-K of the U.P. Industrial Disputes Act, 1947 (in short 'the Act') which was registered as Adjudication Case No. 14 of 2006 by the Labour Court U.P. Saharanpur. The question which was referred for adjudication is as follows :-
"क्या सेवायोजक द्वारा अपने कर्मचारी श्री संतराम पुत्र श्री कालीचरण, सीजनल कर्मचारी की सेवायें सीजन वर्ष २००४-०५ के प्रारम्भ से समाप्त किया जाना उचित एवं वैधानिक है। यदि नहीं तो सम्बंधित कर्मचारी क्या हितलाभ/ अनुतोष पाने का अधिकारी है एवं अन्य किस विवरण सहित ?"
5. In support of his case, the respondent no. 3-workman filed his written statement on 25.5.2006 claiming that he had been appointed as Seasonal Weighment Clerk in the petitioner establishment during the crushing season 1999-2000. He claimed that he had been called for work by written intimation sent by post by the petitioner establishment upto the season 2003-2004; however he was denied work from the season 2004-2005.
6. The petitioner also filed his written statement on the same date stating therein that the respondent-workman had never been engaged by the petitioner establishment in any capacity during any crushing season. An alternative plea was also taken that the respondent-workman may have been engaged by a registered contractor namely M/s Pilania Security and Allied Services, Ghaziabad as per the terms of the Contract Labour (Regulation & Abolition) Act, 1970. The petitioner pleaded lack of master-servant relationship between the petitioner establishment and respondent no. 3.
7. Rejoinder statements were filed by both the respondent-workman and the petitioner reiterating their assertions made in the written statements. No documentary evidence was filed by the respondent-workman in support of his claim.
8. The respondent-workman appeared as a witness and recorded his statement before the Labour Court on 10.7.2008 and 26.3.2009. In his oral testimony it was stated by him that he had been called for work from the season 1999-2000 upto the season 2003-2004 and from the season 2004-2005 he was not called for work. In his cross-examination it was stated that he had not retained copies of the forms which had been filled by him when he had been called for the seasonal engagement.
9. On behalf of the petitioner establishment, the Time Keeper, appeared before the Labour Court and in his oral testimony it was stated by him that the respondent-workman had never worked for the petitioner-establishment as a seasonal employee. It was further stated by him that in support of the aforesaid assertion he had brought with him the original records pertaining to the payments made by the petitioner-establishment during the season 1999-2000 and thereafter from 2002-2004, and he had also brought with him the pay register containing the details of payment of the retaining allowance. The employer's witness also proved the documents (Ex.1) which had been filed by the petitioner establishment along with the list of documents (List 11-B1) containing the details of the workers engaged by M/s Pilania Secruity and Allied Services Private Ltd. which included the name of the respondent-workman Sant Ram at serial no. 54.
10. Contention of the counsel for the petitioner is that the respondent-workman did not adduce any evidence nor did he discharge the burden to prove the existence of master- servant relationship with the petitioner establishment. On the contrary the petitioner establishment had adduced documentary evidence in the form of pay register, attendance register and also documents of the registered contractor M/s Pilania Secruity and Allied Services Private Ltd. to establish the non-existence of master-servant relationship between the petitioner establishment and the respondent-workman. It is submitted that from the documentary and oral evidence adduced by the petitioner establishment it was proved that the respondent-workman was never engaged by the petitioner in any capacity during any season. It was further submitted that the burden of proving the master-servant relationship was on the workman which he failed to discharge and that the burden of proof could not have been placed on the petitioner establishment in this regard. It is stated that the petitioner is a sugar manufacturing unit engaged in manufacture of crystal sugar through vacuum pan process and the conditions of service of its workmen are governed in terms of the 'Standing Orders Covering the Conditions of Employment of Workmen in Vacuum Pan Sugar Factories in Uttar Pradesh' (hereinafter referred to as 'the Sugar Factories Standing Orders') which have been notified under Section 3(b) of the U.P. Industrial Disputes Act, 1947. It is stated that the respondent-workman neither pleaded nor adduced any evidence to eastablish that he had ever become entitled to payment of retaining allowance as per the terms of 'U.P. Payment of Retaining Allowances To Unskilled Seasonal Workmen of Sugar Factories Order, 1972'.
11. Reliance is placed upon the judgments in the case of Batala Cooperative Sugar Mills Ltd. Vs. Sowaran Singh1, Morinda Cooperative Sugar Mills Ltd. Vs. Ram Kishan and others2, and U.P. State Sugar Corporation Ltd. Vs. Niraj Kumar and others3.
12. Counsel appearing for the respondent-workman has tried to support the award of the Labour Court by asserting that the respondent had worked from the crushing season 1999-2000 upto the season 2003-2004 and he was illegally not called for work for the season 2004-2005. It is submitted that since the relevant documents pertaining to his working in the seasonal establishment were not available with him and the said documents having not been produced by the petitioner-establishment the Labour Court has rightly drawn an adverse inference and made the award in favour of the workman.
13. Heard learned counsel for the parties and perused the record.
14. The records of the case indicate that the petitioner is a sugar manufacturing unit of M/s Triveni Engineering and Industries Ltd., Khatauli, Saharanpur (a company incorporated under the Companies Act, 1956). The Sugar Unit is situate at Khatauli, Saharanpur and is engaged in the manufacture of crystal sugar through vaccum pan process. The conditions of service of workmen engaged in the petitioner's sugar unit are governed in terms of the Sugar Factories Standing Orders notified under Section 3 (b) of the U.P. Industrial Disputes Act, 1947. Clause A-5 of the Sugar Factories Standing Orders defines the expression ''season'' as meaning the period commencing from the date when the crushing commences till the date when the crushing ends. The classification of workmen is provided for under Clause-B which includes seasonal workmen as one of its categories and the expression ''seasonal workman'' has been defined under Clause B (II).
15. For ease of reference the relevant provisions of the aforementioned Sugar Factories Standing Orders are being extracted below :-
"5. ''Season" means the period commencing from the date when the crushing commences till the date when crushing ends. Provided that for these departments which are not in operation when crushing begins and which continue in operation after crushing ends, the "season" so far as it affects the workmen in those departments, shall commence with the date the department commences operation and shall end when the department ceases to be operated.
xxxxxx (II) A "seasonal workman" is one who is engaged only for the crushing season:
Provided that if he is retainer, he shall be liable to be called on duty at any time in the off-season and if he refuse to join or does not join, he shall lose his lien as well as his retaining allowance. However, if he submits a satisfactory explanation of his not joining duty, he shall only lose his retaining allowance for the period of his absence.
xxxxxx 2 (c)(ii) Every seasonal workman will be given a ticket as in Form ''E''.
xxxxxx K. Special conditions governing employment of seasonal workmen-
1. A seasonal workman who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season.
Explanation - Unauthorised absence during the second half of the last preceding season of a workman has not been validly dismissed under these Standing Orders and of a workman who has been re- employed by the management in the current season, shall be deemed to have been condoned by the management."
16. Clause B-2 (c) (ii) of the Sugar Factories Standing Orders provides that every seasonal workman is to be given a ticket in Form-E. The payment of retaining allowance including the eligibility of payment of the said allowance is provided for under the 'U.P. Payment of Retaining Allowances To Unskilled Seasonal Workmen of Sugar Factories Order, 1972'.
17. In the case at hand, in order to answer the reference with regard to the claim raised by the workman in respect of the termination of his services as a seasonal workman from the commencement of the season 2004-2005, the Labour Court framed an issue with regard to the existence of master-servant relationship between the petitioner establishment and the workman. In support of his claim with regard to his working as 'Seasonal Taul Lipik' from the crushing season 1999-2000 upto the season 2003-2004 the workman apart from the assertions made in his written statement did not produce any documentary evidence to support his case. In his oral statement the respondent-workman specifically admitted to having no documentary evidence to support the claim of his working in a seasonal capacity with the petitioner establishment.
18. On behalf of the petitioner the Time Keeper of the Sugar Unit appeared as the employer's witness and categorically asserted that the respondent-workman had never worked in any capacity with the petitioner establishment and to support the said assertion he had brought with him the original records in the form of pay register and retaining allowance register for the period from crushing season 1999-2000 upto the season 2003-04. The said witness also proved the documents (Ex.1) which had been filed along with list of documents (List 11-B1) which demonstrated that the name of the respondent-workman found mention in the list of workers engaged by the contractor M/s Pilania Security and Allied Services, Private Ltd. The monthly statement of provident fund contribution pertaining to the aforementioned contractor for the month of March 2004 showing the name of respondent workman was also filed by the petitioner establishment along with its list of documents in order to prove that the respondent was working with the said contractor.
19. The claim raised by the respondent-workman with regard to the termination of his engagement from the season 2004-2005 rested upon the claim of his continuous engagement as a seasonal workman from the season 1999-2000 to the season 2003-04 and the burden of proof in this regard was clearly on the workman. In the present case admittedly the respondent-workman did not adduce any documentary evidence in support of his claim of seasonal engagement and despite the fact that the employer witness had categorically denied the factum of working of the respondent in any capacity and had also brought with him the original records including the pay register and the retaining allowance register to support the case of the employer the Labour Court proceeded to draw an adverse inference against the petitioner- employers.
20. The law with regard to the burden of proof for establishing employer-employee relationship is fairly well settled and it has been consistently held that person who sets up the plea of the existence of employer-employee relationship the burden of proof would clearly be upon the said person.
21. In the case of Range Forest Officer vs. S.T.Hadimani4, where a claim had been made by the workman regarding working for more than 240 days, it was held that the onus to prove the said fact was on the workman. The relevant observations made in the judgment are as follows :-
"2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10th August, 1998, came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days, the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year.
3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an "industry" or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratam Singh Narsinh Parmar, (2001) 9 SCC 713. 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. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."
22. The aforementioned legal position was reiterated in the case of Rajasthan State Ganganagar Sugar Mills Ltd. Vs. State of Rajasthan and another5, wherein it was held as follows :-
"6. It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani [(2002) 3 SCC 25 : 2002 SCC (L&S) 367] . No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. Even if that period is taken into account with the period as stated in the affidavit filed by the employer, the requirement prima facie does not appear to be fulfilled. The following period of engagement which was accepted was 6 days in July 1991, 15-1/2 days in November 1991, 15-1/2 days in January 1992, 24 days in February 1992, 20-1/2 days in March 1992, 25 days in April 1992, 25 days in May 1992, 7-1/2 days in June 1992 and 5-1/2 days in July 1992. The Labour Court demanded production of muster roll for the period of 17-6-1991 to 12-11-1991. It included this period for which the muster roll was not produced and came to the conclusion that the workman had worked for more than 240 days without indicating as to the period to which period these 240 days were referable."
23. Again in the case of Municipal Corporation Faridabad Vs. Siri Niwas6, it was held that the burden was on the workman to prove that he had worked for more than 240 days in the preceding one year prior to his retrenchment and the workman having not adduced any evidence with regard to the same the claim raised by him could not be allowed only on the basis of adverse inference drawn against the employer for not producing the muster rolls. The relevant observations made in the judgment are as follows :-
"13. 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. In terms of Section 25F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefore are satisfied. Section 25F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment :
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;
(ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months.
14. For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25B of the Act. In terms of Sub-section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17.5.1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5.8.1994 to 16.5.1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case.
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 his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld.
Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the Respondent.
16. No reason has been assigned by the High Court as to why the exercise of discretional jurisdiction of the Tribunal was bad in law. In a case of this nature, it is trite, the High Court exercising the power of judicial review, would not interfere with the discretion of a Tribunal unless the same is found to be illegal or irrational.
xxxxxxxx
19. Further more a party in order to get benefit of the provisions contained in Section 114(f) of the Indian Evidence Act must place some evidence in support of his case. Here the Respondent failed to do so.
xxxxxxx
21........The High Court, therefore, proceeded to pass the impugned judgment only on the basis of the materials relied on by the parties before the Tribunal. The High Court, in our opinion, committed a manifest error in setting aside the award of the Tribunal only on the basis of adverse inference drawn against the Appellant for not producing the muster rolls."
24. The aforementioned position of law was restated in the case of M.P.Electricity Board Vs. Hariram7, in the following terms :-
"11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of Municipal Corpn., Faridabad v. Siri Niwas [(2004) 8 SCC 195 : JT (2004) 7 SC 248] wherein this Court disagreed with the High Court's view of drawing an adverse inference in regard to the non-production of certain relevant documents."
25. The question of onus of proof regarding the factum of working was again considered in the case of Manager, Reserve Bank of India Bangalore Vs. S.Mani and others8 and it was held that initial burden of proof is always on the workman to prove his working and that the onus of proof does not shift to the employer nor is the burden of proof on the workman discharged merely because the employer fails to prove a defence. The relevant observations made in the judgment are as follows :-
"28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellant on the premise that they have failed to prove their plea of abandonment of service"
xxxxxxx "35. Only because the appellant failed to prove its plea of abandonment of service by the respondents, the same in law cannot be taken to be a circumstance that the respondents have proved their case."
26. The question of onus of proof and the evidence to be led again came up in the case of Surendranagar District Panchayat vs. Dahyabhai Amarsinh9, and it was held that the burden to prove his working lies on the workman and it is for him to adduce evidence to prove the said factum and in a case if the evidence with regard to the same has not been led by the workman it would be held that he has failed to discharge the burden. It was only in a case where sufficient evidence was led by the workman that the Court could have drawn adverse inference against the other party. The relevant observations made in the judgment are as follows :-
"18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The courts below have wrongly drawn an adverse inference for non-production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25-F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25-B(1) of the Act. In the facts and situation and in the light of the law on the subject, we find that the respondent workman is not entitled to the protection or compliance with Section 25-F of the Act before his service was terminated by the employer. As regards non-compliance with Sections 25-G and 25-H suffice it to say that witness Vinod Misra examined by the appellant has stated that no seniority list was maintained by the department of daily-wagers. In the absence of regular employment of the workmen, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so-called seniority, no relief could be given to him for non-compliance with provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have been proved".
27. The question of burden of proof yet again came up for consideration in the case of R.M.Yellatti Vs. Assistant Executive Engineer10, wherein it was reiterated that burden of proof lies on the workman and it is for him to adduce cogent evidence, both oral and documentary, and mere non-production of muster rolls per se will not be a ground to draw an adverse inference against the employer. The relevant observations made in the judgment are as follows :-
"12. Now coming to the question of burden of proof as to the completion of 240 days of continuous work in a year, the law is well settled. In Manager, Reserve Bank of India v. S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609] the workmen raised a contention of rendering continuous service between April 1980 to December 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The Tribunal based its decision on the management not producing the attendance register. In view of the affidavits filed by the workmen, the Tribunal held that the burden on the workmen to prove 240 days' service stood discharged. In that matter, a three-Judge Bench of this Court held that pleadings did not constitute a substitute for proof and that the affidavits contained self-serving statements; that no workman took an oath to state that he had worked for 240 days; that no document in support of the said plea was ever produced and, therefore, this Court took the view that the workmen had failed to discharge the burden on them of proving that they had worked for 240 days. According to the said judgment, only by reason of non-response to the complaints filed by the workmen, it cannot be said that the workmen had proved that they had worked for 240 days. In that case, the workmen had not called upon the management to produce the relevant documents. The Court observed that the initial burden of establishing the factum of continuous work for 240 days in a year was on the workmen. In the circumstances, this Court set aside the award of the Industrial Tribunal ordering reinstatement.
13. In Municipal Corpn., Faridabad v. Siri Niwas [(2004) 8 SCC 195 : 2004 SCC (L&S) 1062] the employee had worked from 5-8-1994 to 31-12-1994 as a tubewell operator. He alleged that he had further worked from 1-1-1995 to 16-5-1995. His services were terminated on 17-5-1995 whereupon an industrial dispute was raised. The case of the employee before the Tribunal was that he had completed working for 240 days in a year; the purported order of retrenchment was illegal as the conditions precedent to Section 25-F of the Industrial Disputes Act were not complied with. On the other hand, the management contended that the employee had worked for 136 days during the preceding 12 months on daily wages. Upon considering all the material placed on record by the parties to the dispute, the Tribunal came to the conclusion that the total number of working days put in by the employee were 184 days and thus he, having not completed 240 days of working in a year, was not entitled to any relief. The Tribunal noticed that neither the management nor the workman cared to produce the muster roll w.e.f. August 1994; that the employee did not summon muster roll although the management had failed to produce them. Aggrieved by the decision of the Tribunal, the employee filed a writ petition before the High Court which took the view that since the management did not produce the relevant documents before the Industrial Tribunal, an adverse inference should be drawn against it as it was in possession of best evidence and thus, it was not necessary for the employee to call upon the management to do so. The High Court observed that the burden of proof may not be on the management but in case of non-production of documents, an adverse inference could be drawn against the management. Only on that basis, the writ petition was allowed holding that the employee had worked for 240 days. Overruling the decision of the High Court, this Court found on facts of that case that the employee had not adduced any evidence before the court in support of his contention of having complied with the requirement of Section 25-B of the Industrial Disputes Act; that apart from examining himself in support of his contention, the employee did not produce or call for any document from the office of the management including the muster roll (MR) and that apart from muster rolls, the employee did not produce the offer of appointment or evidence concerning remuneration received by him for working during the aforementioned period.
14. In Range Forest Officer [(2002) 3 SCC 25 : 2002 SCC (L&S) 367] the dispute was referred to the Labour Court as to whether the workman had completed 240 days of service. Vide award dated 10-8-1988, the Tribunal held that the services were wrongly terminated without giving retrenchment compensation. In arriving at this conclusion, the Tribunal stated that in view of the affidavit of the workman saying that he had worked for 240 days, the burden was on the management to show justification in termination of the service. It is in this light that the Division Bench of this Court took the view that the Tribunal was not right in placing the burden on the management without first determining on the basis of cogent evidence that the workman had worked for 240 days in the year preceding his termination. This Court held that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination; that filing of an affidavit is only his own statement in his own favour which cannot be recorded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had worked for 240 days in a year. This Court found that there was no proof of receipt of salary or wages for 240 days; that the letter of appointment was not produced; that the letter of termination was not produced on record and, therefore, the award was set aside.
15. In Rajasthan State Ganganagar S. Mills Ltd. [(2004) 8 SCC 161 : 2004 SCC (L&S) 1055] the workman had alleged that he had worked for more than 240 days in the year concerned, which claim was denied by the management. The workman had merely filed an affidavit in support of his case. Therefore, the Division Bench of this Court took the view that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination. This Court observed that filing of an affidavit was not enough because the affidavit contained self-serving statement of the workman which cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that the claimant had worked for 240 days in a year. Further, this Court found that there was no proof of receipt of salary or wages for 240 days and, therefore, mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. On the facts of that case, the Court found that even if the period for which the workman had alleged to have worked was taken into account, as mentioned in his affidavit, still the said workman did not fulfil the requirement of completion of 240 days of service and, therefore, this Court set aside the award of the Labour Court.
16. In M.P. Electricity Board [(2004) 8 SCC 246 : 2004 SCC (L&S) 1092] the workmen were engaged by the Board on daily wages for digging pits to erect electric poles. It was the case of the Board that on completion of the project, the employment was terminated and whenever a similar occasion arose for digging pits, the workmen were re-employed on daily wages and, therefore, their employment was not permanent in nature nor had the workmen completed 240 days of continuous work in a given year. The project jobs came to an end in 1991 and the workmen were never re-employed by the Board. Being aggrieved by the said non-employment, the workmen filed applications under the M.P. Industrial Relations Act seeking permanent employment, primarily on the ground that they have completed 240 days in a year and their discontinuation of service amounted to retrenchment without following the legal requirements. The Board denied the allegations made in the application before the Labour Court. An application was moved before the Labour Court by the workmen seeking direction to the Board to produce the muster roll for the period concerned. However, no other material was produced by the workmen to establish the fact that they had worked for 240 days continuously in a given year. Some of the workmen were also examined before the Labour Court. However, no document was produced in the form of letter of appointment, receipt indicating payment of salary, etc. After examining the entry in the muster rolls, the Labour Court came to the conclusion that the workmen had not worked for 240 days continuously in a given year, hence, they could not claim permanency nor could they term their non-employment as retrenchment. Aggrieved by the award of the Labour Court, the workmen preferred an appeal before the Industrial Court at Bhopal which took the view that since the Board has failed to produce the entire muster roll for the year ending 1990, an adverse inference was required to be drawn against the Board and solely based on the said inference, the Industrial Court accepted the case of the workmen that they had worked for 240 days continuously in a given year. Accordingly, the Industrial Court granted reinstatement to the workmen with 50% back wages. Drawing of such an adverse inference was challenged before this Court by the M.P. Electricity Board. In the light of the aforestated facts, this Court opined that the Industrial Court or the High Court could not have drawn an adverse inference for non-production of the muster rolls for the years 1990 to 1992, particularly in the absence of a specific plea by the claimants that they had worked during the period for which muster rolls were not produced. This Court observed that the initial burden of establishing the factum of their continuous work for 240 days in a year was on the workmen and since that burden was not discharged, the Industrial Court and the High Court had erred in ordering reinstatement solely on an adverse inference drawn erroneously.
17. Analysing the above decisions of this Court, it is clear 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 the aforestated 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 workman stepping in the witness box. This burden is discharged upon the workman 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 termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (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 or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that 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. The above judgments further lay down that 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 the facts of each case."
28. After referring to earlier judgments on the issue of onus of proof, a similar view was taken in the case of Ranip Nagar Palika Vs. Babuji Gabhaji Thakore and others11. The relevant observations made in the judgment are as follows :-
"8........the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer."
29. In the context of burden of proof of 240 days continuous service and drawing of an adverse inference, reference may also be had to the judgment in the case of Sub-Divisional Engineer, Irrigation Project Yavatmal Vs. Sarant Marotrao Gurnule12.
"21. The next question is how the workman is expected to discharge this burden? Does it follow from the observations in the judgments quoted above (underlined for the sake of convenience) that a workman is expected to tender a particular quantum of evidence, or to examine a particular number of witnesses in support of his plea? The Evidence Act, which does not apply to matter under the Industrial Disputes Act, too does not lay down that any particular number of witnesses must be examined to prove a particular fact. A fact is held as proved when a Judge upon considering the matter before him either believes it to exist or considers its existence so probable that a man of ordinary prudence would believe that it exists. Just as it would be futile to expect an employer to prove a non-existent fact, namely that a workman had not worked for 240 days, it would be futile to expect a workman to produce non-existent evidence. The best evidence rule would mandate that if the workman has in his possession any documentary evidence which would support his word on oath, he must produce such evidence, and, if he is not doing so, it would result in discrediting his word. The observations of the Apex Court that in addition to his own word, the workman must put in something more has to be read with this caveat. The difficulties and dangers in examining another workman in support of his own claim may be imagined. Ordinarily out of fear of reprisal a workmen who is already in employment is unlikely to step into the witness box to support the case of a colleague who has been thrown out. Workman's examining another workman who has been similarly thrown out would not cut ice with the Court because the Court may feel that two lies do not make one truth. Therefore, ultimately in the matter of appreciation of evidence, it is for the Judge who sees the parties in person and receives their evidence to decide whether he would believe them or not. Whether burden on workman is discharged by him or not would have to be decided by applying law declared in following few sentences from para 17 in judgment of three-Judge Bench in R.M. Yellati, which we wish to again reproduce, for, there would be no clearer pronouncement on the subject.
"17. 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. In cases of termination of services of daily-waged earners, 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 (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 or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that 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. The above judgments further lay down that 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 the facts of each case."
A careful re-reading of this passage would show that the Court does not hint at necessity of examining anyone in addition to the workman, while at the same time saying that affidavit alone would not be sufficient. What is expected of workman is to tender "cogent evidence", by stepping in the witness box (and thereby allowing the truth of his version to be tested by cross-examination)."
30. The legal position with regard to the burden of proof and onus is well settled and it has been consistently held that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. In this regard reference may be had to the judgment in the case of Haridwar Vs. Smt. Kulwant13, wherein it was held as follows :-
"12. In my view, learned counsel for the appellant is misconstruing the concept of term "burden of proof" and "onus" by identifying the two as synonymous. The onus probandi i.e. "Burden of proof" lies upon a person who is bound to prove the fact and it never shifts.
13. Section 101 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") talks of burden of proof, and says:
"Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
15. A person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. Whoever desires a Court to give judgment, dependent on the existence of facts which he asserts, must prove that those facts exist. The distinction between "burden of proof" and "onus" is that the former lies upon the person and never shifts but the "onus" shifts. Shifting of onus is a continuous process in the evaluation of evidence. For example, in a suit for possession, based on title once the plaintiff is able to create a high degree of probability so as to shift the onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of plaintiff's title.
16. The above distinction between "burden of proof" and "onus" of proof has been explained in A.Raghavamma Vs. A. Chenchamma, AIR 1964 SC 136, followed in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr., (2003) 8 SCC 752.
17. Section 102 of Act, 1872 says that burden of proof in a suit would lie on a person who would fail if no evidence at all were given on either side. Here it is not degree of proof but the onus to lead evidence i.e. obligation to begin to prove a fact. The burden of proof as such has not been defined in the Act but looking to the substance and the context and spirit, it can be said that burden to establish case, loosely, can be said to be burden of proof.
18. For applying above provision in the case in hand, there can be no manner of doubt in holding that burden of proof lies upon the plaintiff. In the case in hand, to prove that sale deed in question suffers an infirmity, justifying its cancellation, as pleaded in the plaint and to prove those facts, burden lies upon plaintiff. But then it has to be understood that there is a distinction between "burden of proof" as a matter of law and pleading and as a matter of adducing evidence. In the first sense, the burden is always constant but burden in the sense of adducing evidence shifts from time to time, having regard to evidence adduced or the presumption of fact or law raised in favour of one or the other. On this aspect, more light emanates when we go through Sections 103 and 104 of Act, 1872, which read as under:
"S. 103. Burden of proof as to particular fact.- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
S. 104. Burden of proving fact to be proved to make evidence admissible.- The burden of proving any fact necessary to be provided in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence."
31. In the case of Rangammal Vs. Kuppuswami and another,14 referring to Section 101 of the Evidence Act, it was held that the burden of proving a fact always lies upon the person who asserts the fact and until such burden is discharged, the other party is not required to be called upon to prove his case. The relevant observations made in the judgment are as follows :-
"21. Section 101 of the Evidence Act, 1872 defines "burden of proof" which clearly lays down that:
"101. Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party."
32. The burden of proof is thus the legal obligation on a party to prove the allegation made by him, and is often associated with the maxim ''Semper necessitas probandi incumbit ei qui agit'' which means the burden of proof is on the claimant.
33. The essential distinction between 'burden of proof and onus of proof' is legally well settled. The burden of proof lies upon the person who has to prove a fact and it never shifts; however the shifting of onus of proof is a continuous process in the evaluation of evidence. In this regard reference may be had to the judgment in the case of A. Raghavamma and another Vs. A. Chenchamma and another15 wherein it was held as follows :-
"12.......There is an essential distinction between 'burden of proof and onus of proof', burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
34. The aforementioned legal position with regard to the burden of proof, in the context of the seasonal engagement in a sugar industry, was reiterated in the case of Batala Cooperative Sugar Mills Ltd. Vs. Sowaran Singh1.
35. Counsel for the petitioner has referred to the judgment in M/s Triveni Engineering and Industries Ltd. Vs. State of U.P. and others16 which was a case where the management witness had entered the witness box along with the original records and yet the Labour Court had drawn an adverse inference against the management. In view of the aforementioned facts the award passed by the Labour Court was held to be unsustainable. The relevant observations made in the judgment are as follows :-
"It is evident from the record that there was denial by the petitioner of any relationship of master and servant between it and the workman. However, the specific case of the workman was that he was employed in the seasons 1993-94 and 1994-95. A party cannot be asked to prove a negative fact but the party who insists on existence of a fact, has to prove it. The specific case of the workman was that he was issued an appointment letter and for the season 1994-95 he was asked to join at the start of the season by a written order, but none of these two documents have been produced on the premise that the officials of the Company had taken back the two letters. However, in his statement he has stated that in the seasons between 1993-94 and 1994-95 he was paid the retaining allowance. It is also his case that apart from wages that he was paid, he used to get T.A. allowance at the rate of Rs. 1.05 per kilo meter. Yet, he has neither filed the wage receipt nor any document to show that he was paid retaining allowance. In fact, he has not disclosed any details about his alleged wages. On behalf of the Management, Sri Birjesh Paliwal had entered the witness box along with the attendance register for the seasons 1993-94 and 1994-95, in original, and had deposed that the name of the workman does not find place in it. He had explained that since the size of the register was extremely big and as it was voluminous, he could not file its copies but he offered the register for inspection to the Presiding Officer and also to the representative of the workman. However, despite the offer neither the Court nor the workman scrutinized it and also did not put any question with regard to its authenticity. In this background, the Labour Court was wholly unjustified in drawing an inference against the Management. Merely producing certain alleged T.A. Bills would not lead to the inference that the workman was, in fact, actually employed in the company. Assuming the reasons given for not producing the appointment letter or call letter for the season 1994-95, to be true, there is no reason forthcoming why no document evidencing payment or receipt of wages or retaining allowance was filed or request to produce the same by the Management was made. The Apex Court in the case of Forest Range Officer v. S.T.Hadimani (2002 (94) F.L.R. 622) and subsequently in State of Maharashtra Vs. Dattatraya Digambar Birajdad (2007 (114) F.L.R. 1191) has held that the burden of proving engagement in the establishment is upon the person claiming it and not upon the Management. Thus, the argument of the petitioner is liable to be accepted.
For the reasons above, this petition succeeds and is allowed and the impugned award dated 15.1.2005 is hereby quashed."
36. There is yet another aspect of the matter. In the context of a sugar industry, in order to claim re-employment as a seasonal workman the factum of having worked for the whole of the second half of the last preceding season as per the provisions contained under Clause-K of the Sugar Factories Standing Orders is necessary and in the absence of proving the said fact no entitlement for re-employment in succeeding season can be claimed. Reference in this regard may be had to the judgment in the case of U.P. State Sugar Corporation Ltd. Vs. Niraj Kumar and others3, wherein it was stated as follows :-
"9.The Standing Orders incorporating the conditions of employment of workmen in Vaccum Pan Sugar Factories in U.P. define `Season' thus:
"Season" means the period commencing from the date when the crushing commences till the date when crushing ends. Provided that for these departments which are not in operation when crushing begins and which continue in operation after crushing ends, the "season" so far as it affects the workmen in those departments, shall commence with the date the department commences operation and shall end when the department ceases to be operated."
10. Workmen, in the Standing Orders, are classified in six categories viz.; (i) Permanent, (ii) Seasonal, (iii) Temporary, (iv) Probationers, (v) Apprentices, and (vi) Substitutes.
11. A seasonal workman is:
"One who is engaged only for the crushing season:
Provided that if he is a retainer, he shall be liable to be called on duty at any time in the off-season and if he refuses to join or does not join, he shall lose his lien as well as his retaining allowance. However, if he submits a satisfactory explanation of his not joining duty, he shall only loss his retaining allowance for the period of his absence."
12. Under the Standing Orders, a temporary workman is one who is engaged for a work of temporary or casual nature or to fill in a temporary need of extra hands on permanent, seasonal or temporary posts.
13. It is pertinent to notice that for a temporary workman, Standing Orders do not provide for any lien of employment in the succeeding season based on the employment in the last preceding season. As regards, seasonal workmen, there are special conditions. Clause K(1) of the Standing Orders is relevant for this purpose which reads thus:
" K. Special conditions governing employment of seasonal workmen-
1. A seasonal workman who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season.
Explanation - Unauthorised absence during the second half of the last preceding season of a workman has not been validly dismissed under these Standing Orders and of a workman who has been re-employed by the management in the current season, shall be deemed to have been condoned by the management."
14. The question that falls for our consideration is whether in the facts noticed above, the workman was engaged as a temporary workman or seasonal workman and whether he is entitled to be re-employed in the succeeding year?
15. It is not that the daily rated employees engaged during the season by the Corporation automatically become seasonal workmen. If an employee is engaged for work of a temporary or casual nature like additional workload during a season, his engagement would be that of a temporary workman. Having perused the award of the Labour Court carefully, we find it difficult to fathom on what basis the Labour Court recorded the finding that the first respondent was engaged as seasonal workman. The burden lay on the workman to establish that he was engaged as `seasonal workman'. There is no material from which it can be held that the workman has discharged his burden. The High Court brushed aside the objection raised by the Corporation that respondent No.1 was engaged on temporary basis in one line by observing that the counsel of the petitioner has not been able to show any perversity in the finding recorded by the Labour Court. In our view, the finding recorded by the Labour Court that the respondent No. 1 was engaged as a seasonal workman, is based on no legal evidence and High Court was not justified in affirming the said finding.
16. Even if we assume that the respondent No. 1 was engaged as a seasonal workman, it is pertinent to notice that before the Labour Court, it was an admitted position that the crushing season 1996-97 commenced from November 11, 1996. That the season came to an end on May 3, 1997 was not disputed. It was also an admitted position before the Labour Court that the workman was engaged on January 1, 1997 and worked upto April 15, 1997. These admitted facts would amply show that the workman had neither worked in the previous full crushing season nor he remained in employment during the whole of the second half of the crushing season 1996-97. The Standing Orders contemplate lien of a seasonal workman in the succeeding crushing season if he has worked in the previous full crushing season or in the whole second half of that crushing season. It is true that `second half of the crushing season' is not defined in the Standing Orders but in absence thereof an ordinary meaning of the expression "second half of the crushing season" has to be given and that would mean the crushing season be divided into two parts and later part of the crushing season would be second half of the season.
17. To be entitled for reemployment in the succeeding crushing season, a seasonal workman has to show that he worked in the previous full crushing season or in whole of the second half of the last preceding year. Merely because workman has worked during the part of the previous crushing season, he does not become entitled for re-employment in the succeeding season. If a claim of re-employment is based on engagement in the second half of season, such engagement has to be for full second half of the season i.e. until the end of that season. In view of the admitted facts that have come on record and legal position discussed above, the conclusion is inescapable that workmen in these appeals have no right to be re-employed in the succeeding crushing season. We are, therefore, unable to uphold the decision of the High Court."
37. Similar view was taken in the case of Kisan Sahakari Chini Mills. Ltd. and others Vs. Awadesh Singh and others17, wherein it was held as follows :-
"4. The question which is required to be decided by this Court is as to whether on the basis of material on record the respondent could be treated to be seasonal workman so as to give him a right to work in subsequent crushing seasons. It is admitted to both the parties that Standing Orders covering the condition of Employment of workmen in vacuum Pan Sugar Factories in U.P. has been framed and appellants' mill is a vacuum Pan Sugar Factory to which Standing Orders are applicable. Standing Order defines seasonal workmen as follows:
"A ''Seasonal workman' is one who is engaged only for the crushing season:
Provided that if he is a retainer, he shall be liable to be called on duty at any time in the off-season and if he refuses to join or does not join, he shall lose his lien as well as his retaining allowance. However, if he submits a satisfactory explanation of his not joining duty, he shall only lose his retaining allowance for the period of his absence."
5. In paragraph 5 of the supplementary counter-affidavit numbers of days on which the respondent has worked during the three crushing seasons, have been given according to which in the crushing season 1988-89 out of 160 working days the respondent worked for 98 days, in season 1989-90 out of 160 days he worked for 126 days and in the year 1990-91 out of 140 days he worked for 127 days. From perusal of the affidavit is filed by the parties it is apparent that the respondent was not appointed on any post temporary or permanent and his appointment was not for any of the crushing seasons. He did not work for the whole of the crushing seasons and during the days on which he worked, he worked on daily wages basis. Such an appointment runs from day to day and is not for any fixed period. His appointment was necessitated due to allotment of extra cane centres to the mills. The nature of work of the respondent was of casual and temporary nature, and as such he can utmost claim status of temporary workman on daily wages basis. Such a workman cannot be treated to be seasonal workman. Even if the work is of permanent nature the workman will be temporary workman, if engaged to fill in temporary need of extra hand.
6. Learned single Judge allowed the writ petition of respondent on the basis that he has worked during the major parts of the three crushing seasons from 1988-89 to 1990-91 and that the appellants have not produced any material to show that his appointment was made with a view to meet any casual requirement of the mills. It was further held by the learned Judge that as the respondent has worked for major parts of the three crushing seasons, nature of his work cannot be said to be casual in nature. It is not possible to agree with the learned Judge.
Before a workman can be declared as seasonal workman he must be engaged for the crushing seasons. The appointment of the respondent was not for the crushing season but was on daily wages basis without reference to any fixed period. Such an appointment cannot be treated to be appointment for the crushing season. Merely because the nature of work of a daily wager is not of casual nature, he cannot be treated to be seasonal workman. A daily wager cannot be declared to be seasonal workman because he has worked for substantive part in more than one crushing season. Such a workman may at the most be treated as temporary workman, unless his appointment is referable to crushing season and he has worked in that season. Two learned Single Judges of this Court in Writ Petition No. 2053 of 1992 Shashi Bhushan Singh v. State of U.P. decided on 1.12.1992 and Writ Petition No. 22843 of 1988, Rajaram Misra v. District Magistrate, decided on 18.1.1993, have negatived the claim of the daily wagers for declaration as seasonal workmen and have accordingly dismissed their writ petitions. We respectfully agree with the views taken in the above decisions in the cases of Shashi Bhushan Singh and Rajaram Misra (supra).
7. The submission of learned counsel for the respondent, in this connection, is that artificial breaks were created in the service of the respondent by the appellants, which is nothing but unfair labour practice, on account of which the workmen cannot be denied the benefit of continuity of service. Certain cases, relating to artificial break of service, have also been cited by the learned counsel for the respondent. But this question does not arise in the instant case. No such plea has been taken by the respondent in his writ petition. There is nothing on record to show that his service was terminated to deny him the benefit of continuity of service. He was appointed purely on daily wages basis to meet the temporary need which arose on account of allotment of eight new cane centres to the mills."
38. In the facts of the present case the respondent-workman having not proved the factum of his seasonal engagement from the season 1999-2000 upto the season 2003-2004 by leading any cogent evidence, the claim of his engagement for the season 2003-2004 which formed the basis of the reference, was clearly unsustainable in view of the provisions contained under Clause K of the Sugar Factories Standing Orders, which provide that in order to be entitled for re-engagement in the succeeding crushing season, a seasonal workman has to show that he had worked in the previous full crushing season or in whole of the second half of the last preceding season.
39. Clause K of the Sugar Factories Standing Orders, referred to above, provides a lien of a seasonal workman in the succeeding crushing season if he has worked in the previous full crushing season or in the whole second half of that crushing season. The burden of proof in this regard is clearly on the workman in order to establish his entitlement to be re-engaged during the succeeding crushing season. In the present case no evidence having been led by the respondent workman to discharge the burden of proof in this regard, the finding returned by the Labour Court cannot be supported.
40. The Labour Court has also misdirected itself in proceeding to draw an adverse inference against the petitioner despite the necessary evidence having been placed on its behalf, and coming to the conclusion that the respondent-workman had worked as a seasonal workman on the post of 'Cane Weighment Clerk' in the petitioner establishment and was entitled to the benefits under the Sugar Factories Standing Orders. Accordingly, the inference drawn by the Labour Court that the services of the respondent-workman had been terminated without following the due procedure and that he was entitled to reinstatement with continuity of service and full back wages and other consequential benefits, is patently erroneous and cannot be sustained.
41. The award of the Labour Court is thus legally unsustainable and the same is set aside.
42. The writ petition is allowed in the aforementioned terms.
Order Date :- 31.7.2019 Pratima (Dr.Y.K.Srivastava,J.)