RANIP NAGAR PALIKA v. BABUJI GABHAJI THAKORE AND ORS

Citation: [2007] 12 S.C.R. 456

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P. SATHASIVAM

Case summary

RANIP NAGAR PALIKA v. BABUJI GABHAJI THAKORE AND ORS.pdf

Judgment text

--,. _ RANIP NAGAR PALIKA v. BABUJI GABHAJI THAKORE AND ORS. NOVEMBER 23, 2007 (DR. ARlJIT PASAYAT AND P. SATHASIVAM, JJ. ] , ). Industrial Disputes Act, 1947-s. 25-F-Termination of workmen-Challenged as being in contravention ofs. 25-F-Courts below directing their reinstatement holding that burden to prove noncompletion ofcontinuous 240 days service, was on the employer-On appeal, held: Burden to prove continuous service for 240 days is on the workman-Courts below have not considered the matter in proper perspective-Hence, matter remitted to Labour Court-Evidence- Burden ofproof A The services of respondent-workmen were terminated by the appellant-employer. Workmen challenged the same on the ground that it was without following the procedure under s. 25-F of Industrial Disputes Act, 1947. They claimed that they were working since, 1991 continuously till their termination i. e. on 16. 5. 1994. Labour Court directed their re-instatement with continuity ofservice.

Single Judge as well as Division Bench ofHigh Court confirmed the OrderofLabour Court. In appeal to this Court appellant contended that in absence ofplea as well as finding by the Labour Court regarding completed 240 days ofservice,High Courtwas notjustified in holdingthat the Labour Court concluded that the workmen had completed 240 days ofservice; that the Courts below erroneously put the onus on the employer, to establish that theworkmen had not completed 240 days ofservice,while the same is on the person who claimed to have rendered more than 240 days of ---service. Allowing the appeal and remittingthe matterto the Labour Court, the Court HELD: 1. The burden ofprooflies 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. [Para 15] [463-G, H; 464-A] Range Forest Officer v.

Hadimani, [2002] 3 SCC 25; Essen Deinki v. Rajiv Kumar, [2002] 8SCC 400; Rajasthan State GanganagarS Mills Ltd. v. State ofRajasthan and Anr. , [2004] 8 SCC 161; Municipal Corporation, Faridabadv. Siri Niwas, [2004] 8SCC195; MP. Electricity Boardv. Hariram, [2004] 8 SCC 246; Manager, Reserve Bank ofIndia, Bangalore v. S Mani and Ors. , [2005] 5 SCC 100; Batala Cooperative Sugar Mills Ltd. v. Sowaran Singh, [2005] 8 SCC 25; Surendranagar DistrictPanchayatv. DehyabhaiAmarsingh, (2005) 7Supreme307; RM Yellatti v. The Asst. Executive Engineer, [2006) 1 SCC 106; ONGC Ltd. and Anr. v. Shyamal Chandra Bhowmik, [2006] 1 SCC 337 and Surendranagar Distt. Panchayatv. Gangaben LaljibhaiandOrs. , [2006) 9 sec 132, relied on -. ' 2. The appellant-management had produced materials to show that the claim ofthe respondent-workmen thatthey had worked from 1991 was patently wrong.

In fact, finding has been recorded that one ofthe respondents had worked since January, 1994 contrary to the claim of having worked from 1991. Therewas need for factual adjudication on p the basis ofthe materials adduced by the parties. That apparently has not been done. Therefore the orders ofthe Labour Court, SingleJudge and Division Bench ofthe High Court are set aside and the matter is remitted to the Labour Court to consider the matter afresh. It has to specifically record a finding as to whether the claim ofthe workmen of G __, continuance of service is acceptable. It has also to be decided as to whether the workmen had completed 240 days ofservice. Thatdecision is vital to sec whether Section 25-F of the Act has any relevance. [Paras 16and17) (464-A, B, C, DJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4468 of 2005. From the final Judgment and Order dated 28. 4. 2003 ofthe High Court of Gujarat at Ahmedabad in LP. A. No. 424 of2003 No. 612000. Mahendra Anand, H. S.

Parihar and Kuldeep S. Parihar for the Appellant. P. K. Manohar for the Respondents. The Judgment of the Court was delivered by DR ARIJIT PASAYAT, J. 1. In the present appeal challenge is to the order passed by a Division Bench of the Gujarat High Court dismissing the Letters Patent Appeal filed by the appellant. In the Letters Patent Appeal challenge was to the order passed by a learned Single Judge who had dismissed the writ petition filed by the appellant. 0 2. A briefreference to the factual aspects would suffice. 3. Claim was made by the respondents to the effect that their services were terminated without following the procedure prescribed under Section 25-F ofthe Industrial Disputes Act, 1947 (in short the 'Act'). It was their case that they were employed on regular basis and, therefore, the termination ofservice is illegal.

In the claim petition they had averred that they were working since 1991 and had worked continuously till there was termination ofservice by an oral order on 16. 5. 1994. Appellant took the stand that the respondents were engaged as daily rated helpers. Their appointments were not in terms ofthe recruitment rules and workers were called for rendering services as and when required. It was therefore said that the claim regarding continuance of service was mis-conceived. The respondents only worked for a few days. In fact after November, 1993 there was no engagement made as their services were not required. The Labour Court, Ahmedabad by order dated 9. 7. 1999 directed reinstatement with continuity of service and 50% back wages. The order was assailed before the High Court. It was contended that the respondents were working as daily wagers and they had not rendered regular service.

learned Singlejudge ofthe High Court dismissed the writ petition holding that each ofthe respondents had completed 240 days of service and, therefore, the order ofthe Labour Court was justified. As noted above, writ appeal was dismissed. 4. Learned counsel for the appellant submitted that there was no pleading that the respondents had completed 240 days of service. In fact ~- . _. / their claim in the claim petition was that they had rendered continuous service without indicating any particulars. In any event, there was no finding recorded by the Labour Court that they had completed 240 days of service. Learned Single Judge therefore was not justified in holding that the Labour Court had concluded that the concerned workmen had completed 240 days of service.

It was further submitted that all relevant records were produced before the Labour Court which were lightly brushed aside and conclusions were arrived at on conjectures by holding that the claim of the present respondents was to be accepted. 5. It was further submitted that the onus is on the person who claims ,,. \ to have rendered more than 240 days ofservice to establish it. The Labour Court and the High Court erroneously held that it was for the employer to establish that the claimants-workmen had not completed 240 days of service 6. Learned counsel for the respondents on the other hand submitted that after analyzing the factual position in detail the Labour Court and the High Court have arrived at the correct conclusion. 7. In a large number ofcases the position oflaw relating to the onus + to be discharged has been delineated. In Range Forest Officer v. S. T. Hadimani, [2002] 3 SCC 25, it was held as follows: "2.

In the instant case, dispute was referred to the Labour Court that the respondent had worked for 4,40 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 10. 8. 1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had [2007] 12 S. C. R. --... ,.... _' worked for 240 days the Tribunal stated that the burden was on the management to show that there was justification in termination ofthe service and that the affidavit ofthe 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 ofthis Court in State ofGujarat v. Pratamsingh 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 pn. 'Ceding his termination. It was the case ofthe 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. " 8. The said decision was followed in Essen Deinki v. Rajiv Kumar, (20021 s sec 400. 9. In Rajasthan State Ganganagar S. Mills Ltd. v. State of . ,__. Rajasthan andAnr. , [2004] 8 SCC 161, the position was again reiterated in paragraph 6 as follows: "It was the case ofthe 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. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production ofthe 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. " 10. In Municipal Corporation, Faridabad v. Siri Niwas, [2004] 8 SCC 195, it was held that the burden was on the workman to show that he was working for more than 240 days in the preceding one year prior to his alleged retrenchment. In MP. Electricity Board v. Hariram, [2004] 8 sec 246, the position was again reiterated in paragraph 11 as foITuws: 'The above burden having not been discharge -.

_/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 himselfto prove the factum ofbeing in employment of the employer. 16. It is to be noted that the appellant had produced materials to show that the claim ofthe respondents that they had worked from 1991 was patently wrong. In fact, finding has been recorded that one ofthe respondents had worked since January, 1994 contrary to the claim of having worked from 1991. In view ofthe fact that the Labour Court and the High Court have not considered the matter in the proper perspective and the view expressed is contrary to the decision in several decisions referred to above, the orders of the Labour Court and the High Court cannot be sustained. 17. There was need for factual adjudication on the basis of the materials adduced by the parties. That apparently has not been done.

We therefore set aside the orders ofthe Labour Court, learned Single Judge and Division Bench ofthe High Court and remit the matter to the Labour Court to consider the matter afresh. It has to specifically record a finding as to whether the claim of the workmen of continuance of service is acceptable. It has also to be decided as to whether the workmen had completed 240 days of service. That decision is vital to see whether Section 25-F ofthe Act has any relevance. 18. The appeal is allowed with no order as to costs. K. K. T. Appeal allowed.