Important Point
Initial burden of establishing the factum of continuous work for 240 days in a year in terms of Section 25F Industrial Disputes Act would be on the workman.

Headnote:Industrial Disputes Act, 1947—Sections 25B and 25F—Respondent was appointed as a casual labour on 16.7.1975 and his services were alleged to have been terminated on 1.11.1977—Appellant’s plea that workman abandoned work and did not report for duty for 5 weeks and his name was deleted from muster roll—Workman’s plea that he was prevented from joining work and thus termination of his services was illegal—Industrial Tribunal/Labour Court holding appellant’s plea that respondent abandoned his service acceptable rejected the reference—High Court in writ found termination of services as illegal and directed reinstatement with back wages—Appeal—Contention that workman had completed 240 days continuous work in a year had not been raised before Labour Court but High Court recorded finding in its judgment—Initial burden of establishing factum of continuous work for 240 days within a year was on respondent and High Court failed to take note of it—High Court fell into error in taking that reply given by appellant to workman’s notice sought to justify the order of termination—Findings of Tribunal that respondent was engaged as casual labourer and that he had abandoned his service did not suffer from perversity or unreasonableness—High Court erred in interfering in that findings of fact and impugned judgment was liable to be set aside.
Held : The learned Judge further held that since the Petitioner had been appointed as Casual labourer on 16.5.1975 and had continuously worked till end of 1977 it followed that the Petitioner had put in continuous service as contemplated by Section 25B of the Industrial Disputes Act. Since there was non-compliance of the provisions of Section 25F of the Industrial Disputes Act, the termination of his service was not legally sustainable. Such a contention was not raised before the Labour Court, but the learned Judge recorded the aforesaid finding in his judgment. In doing so the learned Judge has completely lost sight of the fact that the initial burden of establishing the factum of continuous work for 240 days in a year rested with the Respondent. Unless the said initial burden was discharged, and the Appellant failed to produce evidence in rebuttal, such a finding could not have been recorded by the learned Judge. (Para 13)
We are of the view that this Appeal should be allowed. The Labour Court recorded two crucial findings of fact namely, that the Respondent was engaged as a causal labourer in connection with project work, and secondly, that he had abandoned his service and the allegation that he was prevented from joining his duties on 1.11.1977 was not true. These were findings of fact recorded by the Tribunal on the basis of evidence on record. The muster roll, no doubt, supported the case of the Appellant that after 1.11.1977 he did not report for duty. We cannot lose sight of the fact that thereafter till 4.4.1979 the respondent did nothing to assert his right of reinstatement. The delay of a year and 5 months in issuing a notice appears to us to be significant. Apart from this no evidence was led by the Respondent-Workman that he had made any effort to seek reinstatement or complained against the action of the Management to anyone. There is no material whatsoever to suggest that he had made a grievance about it before any authority or before the Workers’ Union. We have further found that the learned Judge, whose finding was affirmed by the Division Bench, fell into an error in thinking that the reply given by the Appellant to the notice of the Respondent justified the order of termination. As we have noticed earlier, the learned Judge mis-read the reply given by the appellant-Railways in which it was clearly asserted that the Respondent had abandoned his service and therefore, in terms of the Rules his name was deleted from the muster roll. There is nothing in the reply to the notice which is even suggestive of the fact that the appellant accepted the fact that the services of the Respondent were terminated, or that there was justification for such termination. The finding of the Tribunal therefore, did not suffer from the vice of perversity or unreasonableness. In fact the High Court was in error in interfering with the findings of fact recorded by the Tribunal. (Para 15 and 16)

Judgment

B.P. Singh, J.—This Appeal by Special Leave has been preferred by the Chief Engineer (Construction), Southern Railways against the judgment and order of the High Court of Karnataka at Bangalore dated 15th June, 2002 in Writ Appeal No. 16 of 1999. The learned Single Judge, against whose judgment the aforesaid appeal was preferred, had set aside the award of the Tribunal and held that the services of the Respondent were illegally terminated. He was therefore, entitled to reinstatement with full back wages. While affirming the finding of the learned Single Judge that the services of the Respondent were illegally terminated, the Division Bench modified the direction with regard to payment of consequential benefits by directing that only 50% of the back wages from the date of termination till the date of death or date of superannuation of the Respondent, whichever is earlier, shall be paid.

2. The facts of the case are that the Respondent was appointed on 16.7.1975 as a causal labourer by the Railways on payment of daily wages of Rs. 4/- which was later enhanced to Rs. 10.40. The case of the Appellant was that on 1.11.1977 the Respondent abandoned his work and did not report for duty thereafter. Consequently he was marked absent in the muster roll and being a casual employee his name was deleted from the muster roll after five weeks continued absence from the alleged date of abandonment. About a year and 5 months later, on 4th April, 1979, the Respondent served a notice upon the Railways alleging that his services had been illegally terminated. In the said notice issued through an Advocate the Respondent stated that he had been appointed by an order of appointment dated 16.7.1975 as a Clerical Mate in the Southern Railways, Bangalore, on monthly wages of Rs. 332.95. He was also issued a Causal Labour Service Card. It was alleged that despite satisfactory service rendered by him, he was illegally prevented from doing work without assigning any reason whatsoever. This amounted to wrongful termination of service and therefore, the Respondent was entitled to be reinstated with full back wages.

3. The reply of the Southern Railways is dated 11th April, 1979 in which it was stated that he had been engaged as an extra labour (Casual Labour) in the category of Clerical Mate on daily wage basis at Rs. 4/- per day. He was deputed to work under the Inspector of Works (Doubling), Bangalore City. He was unauthorisedly absent from duty on his own accord from 1.11.1977. On 18.11.1977 he only came to receive his wages upto 31.10.1977. He made a request on 25.11.1977 to be re-engaged and though the Head Clerk (Stores) was willing to engage him as a fresh entrant on daily wage, he declined to accept the engagement. Thereafter he never turned up for work. Since he was unauthorisedly absenting himself from duty, under Rule 2505 of the Railway Manual his engagement stood automatically terminated. In view of the aforesaid rule the Respondent had no justifiable claim either for re-engagement or for back wages. Since the Respondent had voluntarily abandoned his service there was no question of issuance of notice to him.

4. Thus, the case of the Respondent was that he had been prevented from working on 1.11.1977, and the case of the Appellant on the other hand was that the Respondent voluntarily abandoned his service and therefore, in accordance with the relevant rules his name was struck off from the muster roll.

5. The dispute was ultimately referred to the Central Government Industrial Tribunal-cum-Labour Court, Bangalore, being Central Reference No. 65 of 1988. It is worthwhile noticing that the Reference was made almost 10 years after the date of alleged abandonment of service and/or termination of service of the Respondent.

6. Before the Tribunal the Respondent examined himself as a witness whereas the Railways examined its Office Superintendent. Some documentary evidence was also produced such as muster rolls. The Respondent produced no docume

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2005 Supreme(SC) 431

Important PointInitial burden of establishing the factum of continuous work for 240 days in a year in terms of Section 25F Industrial Disputes Act would be on the workman.

Important Point
Initial burden of establishing the factum of continuous work for 240 days in a year in terms of Section 25F Industrial Disputes Act would be on the workman.