IMPORTANT POINT
Initial burden of establishing that workman had worked continuously for 240 days in a year rests upon workman.

Headnote:M.P. Industrial Relations Act-Section 31 r/w Section 61-Labour Law-Respondents were engaged by appellant Board on daily wages for digging pits and erection of electric poles-They used to be reemployed whenever occasion arose-Non-employment from 1991 alleged to be retrenchment as they had completed 240 working days in a year-Claim for reinstatement-Labour Court came to conclusion that respondents had not worked for 240 days continuously in given year and rejected their application-Industrial Court and High Court found that appellant had failed to produce Muster Rolls for years 1987-1992 as required by workmen and drew adverse inference-Relief of reinstatement with 50% back wages was allowed-Appeal-Employment of respondents had been discontinuous and intermittent during period from 1982 till their employment was discontinued-Nature of work was not of a permanent job-From 16-11-1987 till 16-11-1988 total employed days came to 136 days-Appellant could not claim permanency or regularisation since there was no permanent post-High Court or Industrial Court could not have drawn adverse inference for non-production of Muster Rolls for year 1990-1992-Impugned order was liable to be set aside.
Held : Case of the appellant that these respondents were employed for the purpose of digging pits for erecting electric poles in the course of drawing electric wire from one point to another point is not disputed. It is in accepted finding of the courts below that the employment of the respondents have been discontinuous and intermittent during the period from 1982 till their employment was discontinued. We can take judicial notice of the fact that drawing of an electric line is in the nature of project work and once the polls are erected and the electric wire is drawn from the starting pole to the ending pole that work comes to an end. Therefore, it cannot be contended that the nature of work which was only to dig pits for the purpose of erecting poles could be construed as a permanent job. Of course, during the course of electrifying more places, job of this nature may be done by the Board continuously in different parts of the State but that does not deviate from the fact that drawing of electric line from one point to another at one part of the State would be a project and not a continuous job. Therefore, employment of people in that local area for the limited job cannot be construed as an employment for a continuous and regular work of the Board. This fact is also recorded in the Muster Rolls which shows that at regular intervals the services of the respondents were sought obviously for the reason that there was no continuous need for such work. A perusal of the Muster Rolls, a copy of which is produced along with the writ appeal which pertains to the respondents in the first appeal clearly indicates the above fact. If as an example, we take the case of the respondent in C.A.No. 2240/01 we notice that he worked between 16.11.1987 to 15.12.1987 for 30 days. His next employment was from 16.12.1987 to 15.1.1988 for 26 days. Therefore, it could be said that during the period 16.11.1987 to 15.1.1988 this respondent worked continuously for 56 days. He was then not employed between 15.1.1988 till 16.2.1988. After the said break he was re-employed from 16.2.1988 to 15.9.1988 which is for a period of 106 days. Thereafter, he was not employed till 16.11.1988. From 16.11.1988 he was re-employed till 15.12.1988 for 30 days. Thus it is noticed that the employment during the period 1987 to 1988 was not continuous and his total employed days for one year if taken from 16.11.1987 till 16.11.1988, same comes to 136 days. Similar is the case if we have a look at a subsequent employment during the years 1989-1990, this clearly shows the fact that the employment of the respondent was on a job required basis and was not for any continuous services required by the Board. The appellant, therefore, cannot claim either permanency or regularisation since there is no such permanent post to which he could stake his claim nor could he claim the benefit of completion of 240 days of continuous work in a given year, because as stated above the figures do not show that the respondents whose particulars are referred to herein above or the other respondents for that matter have worked for 240 days. In such a factual background, in our opinion, the Industrial Court or the High Court could not have drawn an adverse inference for the non-production of the Muster Rolls for the year 1990 to 1992 in the absence of specific pleading by the respondents-applicants that atleast during that period they had worked for 240 days continuously in a given year. The application calling for the production of the documents was for the years 1987 to 1992. As stated above, between the period 1987 to 1990, as a matter of fact, till end of the year 1990 the respondents have not been able to establish the case of continuous work for 240 days. Considering these facts in our view drawing of an adverse inference for the non-production of the Muster Rolls for the years 1991-92, is wholly erroneous on the part of the Industrial Court and the High Court. We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the applicants-respondents. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of re-instatement solely on an adverse inference drawn erroneously. (Paras 10 and 11)

JUDGMENT

Santosh Hegde, J.-The appellant-M.P. Electricity Board in these appeals question the correctness of the judgment of the High Court of Judicature at Jabalpur whereby the High Court dismissed its writ petitions challenging the order of the Industrial Court, Bhopal Bench which in turn had directed to re-instate the respondents herein with 50% back wages.

2. Facts necessary for the disposal of these appeals are as follows:

The respondents herein were engaged by the appellant-Board on daily wages for the purpose of digging pits for erecting electric poles. It is the case of the appellant that on completion of the said project of drawing electric lines from point to point, the employment of the respondents was terminated and whenever a similar occasion arose for digging pits they were re-employed on daily wages. Hence their employment was not permanent in nature nor in any one of the cases the respondents had completed 240 days of continuous work in any given year. The said project jobs have come to an end in 1991 and respondents were never re-employed by the Board.

3. Being aggrieved by the said non-employment, the respondents herein filed applications under Section 31 read with Section 61 of the M.P. Industrial Relations Act (M.P.Act) in January, 1993 before the Labour Court, Bhopal seeking permanent employment under the Board, primarily on the ground that they have completed 240 working days in a year and their discontinuation of service amounted to retrenchment without following the legal requirements.

4. The appellant-Board denied the allegations made in the said application which had termed the non-employment as retrenchment of their service by contending that the question of retrenchment does not arise in the nature of employment because the service of the respondents were on work requirement basis. Before the Labour Court, an application was made by the respondents to produce the Muster Rolls for the period 1987 to 1992. That apart no other material was produced by the respondents to establish a fact that they had worked for 240 days continuously in any given year. Though some other applicants examined themselves before the Labour Court no other document was produced. While the appellant-Board examined three witnesses who are Engineers-In-Charge of the Project and produced the Muster Rolls for the period between 1986 to 1990 but did not produce the Muster Rolls for the later period. The Labour Court after examining the entries in the Muster Rolls came to the conclusion that the respondents-applicants had not worked for 240 days continuously in any given year, hence, they cannot claim permanency nor could they term their non-employment as a retrenchment. On the said basis, it rejected the applications of the respondents.

5. Being aggrieved by the said rejection of their application, the respondents preferred an appeal before the Industrial Court at Bhopal Bench. The Industrial Court noticing the fact that though the application for production of the Muster Rolls was for the years 1987 to 1992, the appellant had only produced the Muster Rolls for the year ending 1990. Therefore, an adverse inference against the appellant was drawn and solely based on the said adverse inference it accepted the case of the respondents that they had worked for 240 days continuously in a given year, hence, proceeded to grant relief, as stated herein above.

6. A challenge to the said orders of the appellant were dismissed by the High Court after drawing an adverse inference based on the same grounds of non-production of all the Muster Rolls.

7. However, while considering the case of grant of back wages both the Industrial Court as well as the High Court came to the conclusion that the respondents had not worked continuously at any given point of time and were not engaged on all working days and their employment was punctuated by short periods when they had not been engaged. Hence, it confined the back wages to 50% only and with the above modificat

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2004 Supreme(SC) 1185

IMPORTANT POINTInitial burden of establishing that workman had worked continuously for 240 days in a year rests upon workman.

Cases Referred (1)

IMPORTANT POINT
Initial burden of establishing that workman had worked continuously for 240 days in a year rests upon workman.