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TMI Blog2005 (11) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly terminated without complying with the provisions of section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 1947 Act ). Consequently, he contended that the above termination constituted illegal retrenchment which was liable to be set aside. The above industrial dispute was referred by the State Government to the labour court vide reference under section 10(I)(c) of the 1947 Act. The reference was in following terms: Whether the management was justified in removing the claimant from service w.e.f. 20.6.1994? If not, to what reliefs the claimant was entitled for? On receipt of the said reference, the labour court issued notices to the concerned parties. The management resisted the reference by filing its counter statement by which the management contended that the appellant was not a worker in terms of section 2(s) of the 1947 Act and consequently, he was not entitled to claim benefit of section 25-F of the said Act. The management also submitted that the Irrigation department was not an industry under the said 1947 Act and consequently, the question of compliance of section 25-F did not arise. Further, the appellant contended that the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calendar months immediately prior to 20.6.1994. There is no explanation offered on behalf of the respondent for non-production of the said N.M.R. It is the evidence of MW.1, the concerned NMR for the said period are available. In my opinion MW.1 has suppressed the material evidence before the Court. On perusing the oral evidence of MW.1 it reveals that in order to suppress the real material, it has not chosen to produce concerned N.M.R. On the question as to whether the Irrigation department is an industry under the 1947 Act, the labour court followed the decision of the Karnataka High Court holding that the Irrigation department of the Government constituted an industry within the meaning of section 2(j) of the 1947 Act. On the point of limitation, the labour court held that the Limitation Act, 1963 was not applicable to the proceedings under section 10 of the 1947 Act. However, since there was a delay of three years in raising the industrial dispute and since the appellant was only a daily waged earner, the labour court directed the management to reinstate the appellant into service as a daily wager with 50% back wages from the date of the award till the date of reinstatemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the division bench ought not to have interfered with the concurrent findings of fact recorded by the labour court in its award dated 27.10.1999. Learned advocate further contended that the workman had stepped into witness box; that he had tendered and produced the certificate (Ex.W1) and that both the labour court and the learned single judge had accepted its correctness and, therefore, the division bench ought not to have interfered with the said findings. Learned advocate further contended that the appellant had worked for 240 days within the meaning of section 25-F of 1947 Act and his non-employment constituted retrenchment under section 2(oo) of the said Act. He contended that the services of the appellant was terminated in breach of section 25-F of 1947 Act and, therefore, the labour court was right in ordering reinstatement. Learned advocate further submitted that no reasons have been given by the High Court for disbelieving Ex.W1 and for coming to the conclusion that Ex.W1 was fabricated document. Learned advocate further contended that the division bench of the High Court had erred in placing reliance on the judgment of this court in the case of Range Forest Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Board v. Hariram reported in (2004) 8 SCC 246. At the outset, we may mention that we are not inclined to adjourn the matter sine die pending the decision of the larger bench as urged on behalf of the management, particularly in view of the fact that there is nothing on record to indicate that the management had argued the point in question. As stated above, the labour court had ruled that the Irrigation department was an industry in terms of section 2(j) of the 1947 Act. Against the award of the labour court, the department had filed its writ petition in which the ground was taken as a plea to the effect that the Irrigation department was not an industry in terms of section 2(j) of the said Act. However, there is nothing in the decision of the learned single judge as well as in the impugned judgment to show as to whether the management had argued on this aspect of the case and, therefore, we are not inclined to await the decision of the larger bench following referral order in the case of Jai Bir Singh (supra). Even in the counter affidavit filed before this court, no such plea has been taken. Now coming to the question of burden of proof as to the completion of 240 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 workmen 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 letter of appointment was not produced; that letter of termination was not produced on record and, therefore, award was set aside. In the case of Rajasthan State Ganganagar S. Mills Ltd. (supra), 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 MP 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22.11.1988 to 20.6.1994. This period is the period borne out by the certificate (Ex.W1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex.M4 and Ex.M5, which indicated that the workmen had worked for 43 days during the period 21.1.1994 to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the division bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the labour cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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