2005 Supreme(SC) 1443

2005(8) Supreme 586
Supreme Court of India
(From Karnataka High Court)
S.N. Variava & Dr. AR. Lakshmanan & S.H. Kapadia, JJ.
R.M. Yellatti —Appellant
versus
The Assistant Executive Engineer —Respondent
Civil Appeal No. 5124 of 2004
Decided on 7-11-2005
Counsel for the Parties :
For the Appellant : Rajesh Mahale, Advocate.
For the Respondent : Ms. Anitha Shenoy, Naveen R. Nath, Ms. Lalit Mohini Bhat and Ms. Hetu Arora, Advocates.

Important point
Burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary.

Headnote:(i) Labour Law—Industrial Disputes Act, 1947—Sections 2(s), 25F —Illegal retrenchment—On termination, appellant claimed that he had continuously worked for more than 240 days—Burden of proof is on claimant to prove that he had worked for 240 days in a given year—This burden is discharged only upon the workman stepping in the witness box—Mere affidavits or self serving statements made by the claimant/workman will not suffice in the matter of discharge of burden placed by law on the workman to prove that he had worked for 240 days in a given year.

       Held : The provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. 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. (Para 17)

       (ii) Labour Law—Industrial Disputes Act, 1947—Sections 2(s), 25F —Illegal retrenchment—Appellant was appointed as a daily waged earner by the Assistant Executive Engineer on 26.11.1988—He worked up to 20.6.1994, on which day his services were terminated—He was getting salary of Rs. 910/- p.m.—On termination, appellant claimed that he had continuously worked for more than 240 days immediately prior to 20.6.1994 and that his services were wrongly terminated without complying with the provisions of Section 25-F of the Act—On reference, Labour Court found that employer had issued a certificate to the effect that appellant had worked from 24.11.1988 to 20.6.1994—Since there was a delay of three years in raising the industrial dispute, labour Court directed the management to reinstate appellant into service as a daily wager with 50 back wages from the date of the award till the date of reinstatement—Division Bench of the High Court quashed the award passed by the labour Court holding that appellant had failed to produce the letter of appointment, letter of termination or receipts indicating payment of monthly salary—Whether High Court was justified in interfering with the concurrent findings of fact—(No).

       Held : The workman herein had stepped 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 court and confirmed by the learned single judge vide order dated 7.6.2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and Ex.W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani-591304. In the present case, the defence of the management was that although Ex.W1 refers to the period 22.11.1988 to 20.6.1994, the workman had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact. (Para18)

       (iii) Labour Law—Industrial Disputes Act, 1947—Sections 2(s), 25F —Retrenchment/termination of daily waged earners—State Governments should take steps to maintain proper records of services rendered by the daily wagers.

       Held : Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government. (Para 19)