Dalbir Singh v. Presiding Officer Industrial Tribunal And ANR
!"#$ "%&'&#( ) *)
+ ,-+). .
! "#
$#" "
%
&&&&&
.
)/-0 '
(
) * "++,-++. / 0 1 2 *34 +3'6(" 7 89) : ( 0" ) ( ; ;) * :
2 # 8*02 '3(')() "'96.( ; '96.") * 8*02 # 8 2
+
!: :# 2 34 +33+<2 *34 +3'6
: = # > 0 ( ; 2 ;) * * 1 :
% *
22 8*02 % * 8 2 ? 3'
3@ '9@+ (2 *34 +3'6 : ) * : *0 0 > 8 *02 2 #*2 3'
3@ '999 22 ** : ',.4-8 2
* 2 22 # 8 *02 * # : : : 2 * : 8*02 %
2* # * *
2 2 # " : : 2 * : # 1
2 8*02 * : 8 2 8> 2 # : ; :;
* 8 2
8*02 +48> '96.
" 2 +63: # :
2 2*2:
8 2 8*02 *
3'
3+ '9@+(2 *34 +3'6 : ) *0 :'999** *
',.4-8 2 : 2 * 8 2 8*02 * '995 *0 : '995 *0 * : # : >:'996 *02"
'996A#2'996 '994 :'994 :'994A#2'994" '99, >:'99.22'99. 2'99@ A#2 '99@2'99@ * : 8 *02 *0 2 : '999 " '999 * 8 2 *: 8 2 # > 2 B *
8*02 2 +63 : #
" : :2 22 8 *02 *2
>2 * *2 : C
D ,
#
72 2EE8' %F2-/
%
2 EE8+ 8 2 72
!#
0 E8'
$ !0 0 E8+
.
" # 2-# # 8*02 # 2 * 34 +3'6 (" 7 89): 8*02 #
2 +63: #
1 2 3'
3@ '999 : +48> '96." " : * /
@
? * 2 * 2 * * 2 * 34 +3'6 (" 7 89) 2 * 2 * 8*02 *0 :+63: : 2 *# 8 2 : 2 *# +48> '96."
? 2 * 2 8 2 %
* #B* # +48 '96." ? 1 : *
: 8 2 * * # +48G '96."
E 2
:* * :1
2 * 34 +3'6 (" 7
89) 8 2 * 1
'3
:2 * :
: * 2 2 *0+63: '+2 2 2
3'
3@ '999 2 : #: : * # * / 72% * :
" : :2 * 2
''
#
0*
'+
! *
*% 2
'5
In the case of "Range Forest Officer v. S.T. Hadimani", 2002(3) SCT 382 (SC), Hon'ble Apex Court held as under:- C2. 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 an 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(2) SCT 1081 (SC) : JT 2000(3) SC 326.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. Filling 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 an 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.
14.
In the case of "Municipal Corpn. v. Siri Niwas", 2004(4) SCT 211, Hon'ble Apex Court held as under:- C12. 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 therefor are satisfied. Section 25-F 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.
13. For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25-B of the Act.
In terms of sub-section (2) of Section 25-B 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 25Bof 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.
14. 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 nonproduction 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.
15. 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..."
15.
In "R.M. Yellatti v. The Asstt. Executive Engineer", 2005(4) SCT 695, it was held as follows :
".... Drawing of adverse inference ultimately would depend thereafter on 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 226of 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 facts of each case."
16.
It is thus well settled that the burden of proof that a workman
* had worked for 240 days in a given year was on the workman. It is also well settled 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. Further, it is also the settled position in law that mere nonproduction 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. Moreover, drawing of adverse inference is optional and not obligatory and the same was within the domain of Industrial Tribunal below based upon facts and circumstances of a case. 17.
** * 8*02
!""# !$ "% $" " ! !#$ " &'(" # ' &&&) ! $$" " #$## $ " # *+,-." !
" % ! !$ " ! /!0# # " !1 % $ # " (2 $ $"# # ' &&& 34!0" 56 ( & 7 08#((7 0 3$9 : #$ ! !# "$(2 $ $ "# $ "
- " $ ;$""! ! ! $## "(2 $ $
$ "# # ' &&&
) ! $< 0# $! ! = (> ? !@ "" "
0" !% &&7 "7 + &&&3 ##$ *+,-. 1 ) ! !
=
?0# @ %"$% "
# # !
!$) ! !$ 0 > = ( " !"7 + &&& # !$ " + &&&# !
$ !## !
( # !
) ## # = (0 > ? % A@= B #$!
""0" !% &&7 "7 + &&& ! " ) !
# @ "$ *+,-." (, $$ 0% = ( !$ ## " "$ $ !$ ) ##
### !$ $
71 "#@ =
?0#
" -# A@= "# !$ ## # #$ !
8$%&&)#%&&"
#$!
"(2 $
0+* A@= 6 "8$% &&&)#% &&& ! A@= ""# " &&7.&2 &&*.&+ ""$"" " ! !$ " ' &&&
2 ? ! ! (2 $$ "# # ' &&&% ! $" " "" ' &'( !## ' &&&%! "" - " !$ 0 " ! $ $ ## !$## !% ! " "(2 $"# # ' &&& ## "0(,.1 6/)% &2+3 "0(,.1 6/ ) ""!
)#$ " #
, $% # "!$ # $1!# C '@
#2 2 #
2
( ) # * # 2 240 days of continuous service in a year preceding the date of his alleged termination, i.e. 01.08.1999. It has come on record that the petitioner-workman was never engaged as a permanent employee by the respondent-Management nor he worked continuously with the Management. It has also come on record that the petitioner was not drawing wages for the whole month, rather the wages were drawn according to the work done by him, for the days he worked. The Tribunal below has held that the petitioner-workman had failed to prove that he completed 240 days of continuous service preceding the date of his alleged termination on 01.08.1999. Accordingly, petitioner was not found entitled to the relief in terms of Section 25-F of the 1947 Act. '9
# : 2
2-#
+3
" # +48 +48G '96."B : :2 # " :% * # : *
1
2 #
21.
Furthermore, the parameters for exercising of jurisdiction by the High Court under Article 226 of the Constitution of India, in cases involving challenge to the award passed by the Labour Court/Industrial Tribunal and orders passed by other judicial and quasi-judicial bodies, are well defined. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts illegally or improperly, i.e. it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice.
However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. This is the abstract statement of law, but the vexed question is as to what is an error of law apparent on the face of the record and in what circumstances a finding of fact recorded by an inferior Court or Tribunal or a quasi-judicial authority can be corrected.
Broadly speaking, an error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority.
1 law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding, the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari.
Likewise, the mere, possibility of forming a different opinion on re-appreciation of evidence by the parties is not sufficient for issuuance of a writ of certiorari. Gainful reference can be made to the judgments rendered by Hon'ble Supreme Court in "Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 Supreme Court 477"; "Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others, AIR 1970 Supreme Court 61"; "Jitendra Singh Rathor v. Sh. Baidyanath Ayurved Bhawan Ltd. and another, AIR 1984 Supreme Court 976"; "R.S. Saini v. State of Punjab and others, 1999(4) RCR (Civil) 253 (SC) : J.T. 1999(6) S.C. 507" and "Mohd. Shahnawaz Akhtar and another v. Ist A.D.J. Varanasi and others, J.T. 2002(8) S.C. 69".
++
F #* 2 #* once the petitioner-worker has failed to discharge the onus placed upon him to prove that he worked continuously for 240 days in a year preceding the date of his alleged termination, no relief can be granted to him.
23.
Accordingly, I do not find any reason to interfere with the impugned award dated 05.03.2014 (Annexure P-9) passed by the Tribunal below, resultantly, the present writ petition is dismissed. +6
"
() :
) *)
/ .
0 )" '
E 0 -
$-A + E $-A