JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the order dated 28.6.2001 (Annexure 3 to the writ petition) passed in Miscellaneous Case No. 128 of 2000 by the Labour Court.
2. The fact arising out of the writ petition is that the petitioner is a statutory body constituted under Road Transport Corporation Act, 1950 vide notification dated 31.5.1972 effective from 1.6.1972 by the State of U.P. The Central workshop has five categories of employees for handwork, which is non-skilled, semi-skilled, skilled, specialist and specialist Grade-1. Inspite of the aforesaid categories of workman the central work shop engaged from time to time daily wagers purely on temporary basis for the purposes of cleaning of the head and maintenance of grass and flowers. After finishing the work the services of the workman come to an end and they are being paid on daily rated basis. It has been submitted that the respondent No. 1 has worked in the corporation on 16 days in the month of December 1986 and thereafter he has not worked in the corporation. The respondent No. 1 has raised a dispute though it was highly belated. The respondent No. 1 has filed an earlier claim which was numbered as miscellaneous case No. 256 of 1991 before the Labour Court and the Labour Court vide its order dated 6.6.1995 has given an award against the respondent No. 1. The respondent No. 1 was never an employee of the corporation, as such, there was no requirement or there is no violation of provisions of Industrial Disputes Act.
3. A written statement was filed on behalf of the petitioner stating therein that the workman was not given any appointment, as such, there is no requirement of compliance of the provisions of the Industrial Disputes Act but the presiding officer, Labour Court vide its judgment and order dated 28th June, 2001 giving an award of reinstatement with 50% back wages in favour of the respondent No. 1. As the order passed by the Labour Court was wholly illegal and without jurisdiction and against the evidence on record, the present petition has been filed before this Court.
4. It has been submitted on behalf of the petitioner that as the earlier dispute raised on behalf of the respondent No. 1 workman, an award has been given that the workman is not entitled for any relief, as such, the subsequent dispute raised on behalf of the workman is barred by principle of res-judicata and the petition itself was not maintainable and was liable to be dismissed.
5. Reliance has been placed by the counsel for the petitioner in the judgment of Pondicherri Khadi and Village Industries Board v. P. Kulothanagan and Anr. , and has been submitted that as in the earlier dispute the Labour Court has given an award against the workman, as such, the subsequent dispute was not maintainable and in the aforesaid case it has been held that the principle of res-judicata is applicable. The another judgment relied upon by the counsel for the petitioner in Executive Engineer, ZP Engineering Division and Anr. v. Digambara Rao and Ors. and has placed reliance upon Paras 17 and 18 of the said judgment. The same is being reproduced below:-
17. It is no doubt true, as has been contended by Mr. Maruthi Rao, that the burden of proof that the respondents were employed against a particular scheme was on the appellants but such a burden stood discharged and in any event the said question was no longer alive having regard to the decision of the Karnataka High Court in the earlier writ petition.
18. The pled raised before us by the respondents to the effect that their termination of employment fell within sub-clause (bb) of clause (oo) of Section 2 of the Industrial Disputes Act, apart from having not been raised before the Labour Court and the High Court, in our opinion, is not available to them having regard to the decision of the High Court in the writ petitions filed by the respondents.
6. It has been submitted on behalf of the petitioner that the respondents have clearly failed to prove that they have worked more than 240 days and now it is well settled that if the person is claiming the violation of provisions of Industrial Disputes Act to the effect that while terminating the services the provisions of the Act has not been followed, the burden is upon the workman to prove that he has worked for more than 240 days. The another judgment relied upon is State of Maharashtra and Anr. v. R.S. Bhonde and Ors. and has submitted that the statutes of permanency cannot be granted unless and until it is proved that there is a post. Mere continuances every year of seasonal Work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done. The reliance has also been placed upon in Mahatma Phule Agricultural University and Ors. v. Nasik Zila Sheth Kamgar Union and Ors. reported in 2001 (7) Supreme Court Cases 346 The further reliance has been placed in Range Forest Officer v. S.T. Hadimani reported in 2002 (2) AWC 1268 (SC). Reliance has been placed upon para 3 of the said judgment and it has been submitted that the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondents had worked for more than 240 days in the year preceding his termination. If the claim of the workman was denied it was further quashed to lead the evidence to show that he had in fact worked for 240 days in the year preceding his termination. Only filing an affidavit only his own statement in his favour cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that the workman had worked for 240 days in a year.
7. In view of the aforesaid submissions, the petitioner submits that as the petitioner has clearly denied that the respondents workman had worked in the month of December 1986 only and he has not completed 240 days as such, they are not entitled for any relief. But the labour Court without consideration of the aforesaid fact, only on believing the statement by the workman has held that the services of the respondents have been terminated in violation of the provisions Section 6-N of the Industrial Disputes Act, as the respondents workman had completed 240 days, as such, the award of the Labour Court is liable to be set aside.
8. On the other hand, the counsel for the respondents has submitted that the contention of the petitioner to this effect that the present proceeding is barred by res judicata is not correct and adjudication case No. 256 of 1991 was for the purposes of regularization as during pendency of the proceeding of the Labour Court, the services of the workman were terminated, therefore, the said petition pending before the Labour Court was withdrawn as the order of termination itself was not permissible in view of the provisions of Section 6-E of the Industrial Disputes Act, 1947. It has been submitted that the petitioner cannot change the condition of service without an approval of the Labour Court. For the convenience, Section 6-E of the Act is being quoted below:-
6-E. Conditions of service, etc. to remain unchanged in certain circumstances during the pendency of proceedings:-
(1)During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall-
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, (he conditions of service applicable to them in immediately before the commencement of such proceeding, or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or
(b), for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) Notwithstanding anything contained in subsection (2) no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute-
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding, or
(b) by discharging or punishing, whether by dismissal otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.
Explanation- For the purposes of this sub-section, a 'protected work man' in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to he recognized as protected workmen for the purposes of Sub-section (3) shall not exceed one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the Stale Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which they may be chosen and recognized as protected workmen.
(5) Where an employer makes an application to a Hoard, Labour Court or Tribunal under the proviso to Sub-section (2) [for approval of the action taken by him, the authority concerned shall, without delay, such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit.
9. The counsel for the respondents has also placed reliance under Section 6-F of the act which reads as follows-
6-F. Special provision for adjudication as to whether the conditions of service, etc. changed during the pendency of proceedings.-
Where an employer contravenes the provisions of Section 6-E during the. pendency of proceedings before a Labour Court or Tribunal, any workmen aggrieved by such contravention may make a complaint in writing in the prescribed manner, to the Labour Court or Tribunal as the case may be, and on receipt of such complaint that Labour Court or Tribunal as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with this Act and shall submit its award to the State Government and the provisions of this Act shall apply accordingly.
10. It has been submitted that where the employer contravenes the provisions of Section 6-E during the pendency of proceedings before the Labour Court or the Tribunal the workmen aggrieved may make a complaint in writing in the prescribed manner, to the Labour Court or Tribunal. Therefore, as during the pendency of the earlier proceeding the respondents were terminated, as such, the same was withdrawn and as the same was not adjudicated on merits, therefore, there is no question of applicability of prescribed res-adjdicata. It has been submitted that the workmen had submitted a certificate dated 26.3.1992 issued by the Service Manager of the workshop before the Labour Court showing there in that they were appointed in July 1982 to June 1986 as daily wager. The said certificate was not controverted by the petitioner. The workmen also continued to work after June 1986 up to 7.7.1992 without any break and have completed more than 240 days in one calendar year. As the certificates issued the petitioner has produced and the same has not been denied, therefore, the Labour Court has rightly given an award of reinstatement. The finding recorded by the Labour Court has a finding of fact and cannot be interfered.
11. The further submission has been made on behalf of the respondents that in view of the provisions of Section 6-N of the Act an application was made for summoning the document which is apparent from the finding recorded by the Labour Court and has drawn attention of para 4 of the award given by the Labour Court and submitted that an application was moved but a finding to this effect has also been recorded that no document has been filed by the employer, therefore, the Labour Court award cannot be said to be in contravention of the well settled principle of law.
12. I have heard Sri J. N. Yadav, learned counsel for the petitioner and the learned Standing Counsel and Sri S. N. Dubey for the respondents and have perused the record.
13. From the finding recorded by the Labour Court it is clear that a finding of fact has been recorded that the petitioner has clearly stated that no appointment letter was issued in favour of the petitioner and a request has been made by filing an application to produce the attendance register as well as the payment of salary document but the petitioner has not filed any document. It is also to be noted' that at one stage, the witness who appeared on behalf of the petitioner has stated that the workmen had worked from 11.12,1986 to 30.12.1986 only for 16 days and after and before that he has not worked. He has also stated that before 1991, the daily wagers were being kept for cutting of the grass as well as to shift the goods to godowns but the said appointment was only for a specific period. He has also stated that he has giving the aforesaid statement on the basis of record but he cannot produce the same before the Labour Court. He has also stated that he has got no knowledge whether the salary was being paid and entry to that effect was being made in the payment register or payment was being made on the basis of voucher. A finding of fact recorded by the Labour Court that as the responsibility of keeping the document relating to service of their employees is of the employer and the same in spite of the application and direction issued by the Court, has not been produced, therefore, there was no occasion except to accept the. affidavit and the documents filed on behalf of the workmen. The workmen have filed a certificate issued by the authority of the petitioner relating to their work from 1982 to 1986 and there is a mention that the respondents have worked during the periods 1982, 1985 and 1986, as such, the case set up by the petitioner to the effect that the respondents have worked only for the month of December 1986, appears to be incorrect A finding to this effect has also been recorded by the Labour Court that workmen have discharged his liability to this effect regarding producing various documents relating to the service of the workmen by the employer but they have not produced the same. Therefore, the Court has no option except to accept the secondary evidence of the workmen that while terminating the service on 8.7.1992 the provisions of Industrial Disputes Act has not been followed and as such, the termination of services of the workmen respondents is against the provisions of Section 6-N of the U.P. Industrial Disputes Act. The Labour Court has also recorded a finding that as the dispute has been raised after a lapse of considerable period, therefore, the Workmen is not entitled for full back wages and has awarded only 50% of the back wages.
14. In a recent judgment reported in Municipal Corporation, Faridabad v. Shri Niwas , the Hon'ble Apex Court has held that in case non-production of evidence by the employer adverse inference when may be drawn. It has been held that presumption as to adverse inference is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. Notwithstanding the intentional non-production of evidence, other circumstances may exist upon which such intentional non production may be found to be justifiable on some reasonable grounds. paragraphs 13, 15 and 19 are being reproduced below:-
13. The provisions of the Evidence Act, 1872 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 workman herein to show that he had worked for 240 days in the 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 an 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.
15. A court of law even in a case where provisions of the 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 is the background of facts involved in the Us. 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 (he nature of the evidence adduced by the respondent.
19. Furthermore a party in order to get benefit of the provisions contained in Section 114(III)(g) of the Evidence Act must place some evidence in support of his case. Here the respondent failed to do so.
15. The Hon'ble Apex Court has clearly held that if initially the documents have not been produced by the employer sometime it may not be justifiable on some reasonable grounds. The matter however, would different were despite directions by the Court the evidence is withheld. The presumption has to adverse inference for non-production of evidence is always optional. In the present case, it is not the case of the petitioner with reasoning that in spite of the application filed on behalf of the respondent workmen, the relevant record was not produced. A finding to this effect in Para 4 of the judgment has been recorded that the employer has shown his inability for producing the said document relating to working of the workman. No cogent reason and explanation has been given by the employer petitioner regarding non-furnishing of the relevant document relating to the days of working of the respondent workman. It is also to be noticed from the judgment that contradictory statements have been given by the petitioner before the Labour Court. The execution of the certificate of working of the respondent workman has also not been doubted by the petitioner employer as such, in my opinion, the secondary evidence was the best evidence for decision of the case by the Labour Court.
16. In view of the aforesaid fact, I see no justification, as the finding recorded by the Labour Court is a finding of fact and now it is well settled that the Labour Court and the Tribunal is the last Court of fact. The writ petition is devoid of merits and is liable to be dismissed.
17. The writ petition is dismissed. There shall be no order as to costs.