Heard Sri Punit Kumar Gupta, learned counsel for the petitioners and Sri Rajesh Rai, learned counsel for respondent no. 2.
The writ petition arises out of Labour Court award dated 12.4.2007 published on 5.7.2007 passed by the Presiding Officer, Labour Court - I, U.P., Kanpur.
By means of the impugned award, respondent no. 2 has been reinstated with back-wages on the ground that the dispensation of his services is in violation of Section 6-N of the U.P. Industrial Disputes Act, 1947. Admittedly, respondent no. 2 was a daily-wage (muster roll) employee with the petitioner corporation. The case of the petitioner is that in the year 2000-2001, certain projects of construction were allotted to the petitioner Corporation. In order to meet the requirements of staff, the Corporation proceeded to engage some persons on the muster roll. Respondent no. 2 was engaged on payment of Rs. 98/- per day in the month of June, 2001 and he has worked up to December, 2001. Total period of working of respondent no. 2 workman was 127 days. The respondent no. 2 was engaged at the time when work of the project had commenced, however, he was disengaged, thereafter.
The contention is that respondent no. 2 was engaged for a particular project at Karvi in District Chitrakoot and on coming to the end of the said project, the services of respondent no. 2 were discontinued.
Submission is that the said facts were specifically pleaded in the written statement by the employer, however, the Labour Court did not advert itself to the said submissions and recorded a finding that the petitioner's services has been illegally dispensed with, and accepted the claim of respondent no. 2 solely on the basis of an identity card (Exhibit W-25).
Respondent workman claimed that he was appointed on the post of Draftsman with the respondent Corporation on 1.2.2001 and he has worked regularly till September, 2003 at Karvi in the District Chitrakoot. Thereafter, he was transferred in the office of the Corporation at Banda. However, his services have wrongly been dispensed with on 1.8.2005. He has worked for more than 240 days in the petitioner Corporation. In support of his submission, the petitioner has filed several documents namely experience certificates etc. as the proof of his working in the Corporation. The employer's witness recorded his statement and categorically denied the execution of the documents namely Exhibits W-9 to W-22. It was stated that the said documents were not part of the official record.
Categorical statement of the employer was that there was no post of Draftsman in the Corporation office at Banda. Moreover, the post of Draftsman is a regular sanctioned post and has to be filled in accordance with the rules after notifying the vacancy. The rules of recruitment on the said post provides for a written examination and interview for selection. Admittedly, no such procedure has been adopted in the case of respondent no. 2 and he has not been appointed on the post of Draftsman.
Submission is that while recording the finding that respondent no. 2 was appointed on the post of Draftsman (civil) on 1.2.2001, the Labour Court had not gone into the pleadings and no finding arrived at on the basis of these pleadings rather the Labour Court simply relied upon the identity card of respondent no. 2 and recorded that he was appointed on the post of Draftsman. The said finding is erroneous and cannot be sustained.
Learned counsel for the petitioner has relied upon the judgment of Apex Court in Mahboob Deepak Vs. Nagar Panchayat, Gajraula and another (2008) 1 Supreme Court Cases 575 to submit that when the terms and conditions of employment are governed by a statute and statutory rules, no appointment can be made by an authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules would be a nullity.
Relying upon a judgment of this Court in State of U.P. and Others Vs. Prasidh Prasad and others (2014) 6 ADJ 340, it is submitted by the learned counsel for the petitioner is that the reinstatement with back-wages is not automatic. In the case of a daily wage worker where the termination, even if, found illegal because of procedural defect, namely, in violation of the provisions of Section 6-N of the U.P., reinstatement with back-wages is not automatic and instead the Court can require monetary compensation in lieu of reinstatement.
Sri Rajesh Rai, learned counsel for respondent no. 2 on the other hand relied upon the judgments of Apex Court in Assistant Engineer Rajasthan Development Corporation and another Vs. Gitam Singh (2013) 136 FLR 908; Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) and others (2013) 10 SCC 324 and Bhuvnesh Kumar Dwivedi Vs. M/S Hindalco Industries Ltd. (2014) Laws (SC) Vol. 4 Page 88. to submit that in a given case, if termination is found illegal, the dismissed employee is entitled for reinstatement. He also relied upon the judgments of this Court in State of U.P. Vs. Gulrej Ahmad and another (2013) 137 FLR 588; and Regional Manager (Now Zonal Manager), Bank of India, Kanpur Vs. Central Government, Industrial Tribunal-cum-Labour Court, Kanpur (2013) 137 FLR 1043 to submit that as the petitioner has worked for more than 240 days and hence the Labour Court has rightly held the termination of services of respondent no. 2 as not justified, there is no error in the finding of the tribunal. This Court in exercise of powers under Article 226 will not sit in appeal over the finding recorded by the Labour Court. The writ petition, therefore, is liable to be dismissed.
Having heard learned counsel for the parties and perused the record, it is evident that the respondent workman was engaged by the petitioner on daily wage basis. He was kept on the muster roll. Specific stand of the petitioner in the written statement before the Labour Court was that respondent no. 2 worked only for 127 days from September, 2001 to December, 2001. The documents filed by respondent no. 2 to prove his working in the corporation after December, 2001 have been categorically denied as not being part of the official record. The Labour Court has noted the said statement, however, did not adjudicate the same.
Moreover, in support of his submission that he was appointed on the post of Draftsman on 1.2.2001, the petitioner could only file the identity card, issuance of which has not been denied by the witness of the corporation. In view of the same, the Labour Court has recorded a finding that the said documents establishes that respondent no. 2 was appointed on the post of Draftsman (civil) on 1.2.2001. There is no dispute about the fact that the post of Draftsman is a regular sanctioned post. The recruitment rules provide a procedure for appointment of a Draftsman. Admittedly, no such procedure has been adopted in the case of respondent no. 2, the finding recorded by the Labour Court, therefore, is clearly against the admitted case of respondent no. 2 that he was engaged on a daily wage basis and a muster roll employee. No finding has been recorded by the Labour Court that respondent no. 2 has worked for more than 240 days with the petitioner employer.
The documents relied upon by respondent no. 2 before the Labour Court have been filed alongwith a counter affidavit in the present writ petition. A perusal of the said documents indicate that they are the experience certificates given by Branch Manager. The said documents are not part of the official record of the corporation. Moreover, these documents are not sufficient to prove the case of respondent no. 2 that he was employed till 2005 by the corporation and his services were terminated on 1.8.2005. The employers have taken a categorical stand that respondent no. 2 was not engaged after December, 2001, the onus, therefore, lies on the respondent workman to specifically plead and prove that he was employed till 1.8.2005. As he has failed to do so, the finding recorded by the Labour Court cannot be sustained at all.
It is well settled that the burden of proof of working of 240 days lies on the person who pleads the same. Respondent no. 2 though pleaded, however, failed to prove that he has worked for 240 days.
It is for the workman to adduce the evidence in support of his assertion. As the petitioner has failed to discharge the said burden and hence his contention that he was retrenched, cannot be accepted. This issue was examined by the Apex Court in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh (2005) 8 SCC 750 in paragraph nos. 16, 17 and 18, it is observed as under:-
16. In Range Forest Officer v. S.T. Hadimani (SCC at p. 26, para) this Court held that :
"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."
17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram this Court has reiterated the principal that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer.
18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period 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 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 fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25-F of the Act before his service was terminated by the employer. As regards non-compliance of Sections 25-G and 25-H suffice is to say that Witness Vinod Mishra 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 workman, 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 of 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 be proved.
The disengagement of respondent no. 2, therefore, does not attract the provisions of Section 6-N of U.P. Act. Respondent no. 2 cannot said to hold the post of Draftsman (civil) as admittedly he has not been appointed in terms of the recruitment rules.
Earlier the matter was heard on 13.4.2012 and this Court after noticing the arguments of learned counsel for parties and after perusal of the pleadings in the written statement and counter reply before the Labour Court was of prima facie opinion that it would be appropriate that the workman is awarded a lump-sum amount with regard to back-wages and compensation in lieu of Section 6-N of the Act and time was granted to learned counsel for respondent-workman to seek instructions on this aspect. However, as discussed above, after having gone through the entire record and submissions of learned counsel for the parties, this Court found that respondent no. 2 has failed to establish that he has worked for 240 days or he was appointed on the post of Draftsman.
As this Court has held that the provisions of Section 6-N are not attracted in the instant case and hence there is no question of grant of compensation to respondent no. 2.
For the above reasons, the award passed by the Labour Court is totally perverse and cannot be sustained in law. The award dated 12.4.2007 passed by the Labour Court published on 5.7.2007 is hereby set aside.
However, it is provided that the amount paid to respondent no. 2 under Section 17-B of the Industrial Disputes Act in compliance of the interim order dated 20.7.2007 shall not be recovered.
With these observations, the writ petition is allowed.
No order as to costs.
Order Date :- 20.11.2014 B.K.
(Sunita Agarwal, J.)