2007 Supreme(SC) 317

2007(3) Supreme 553
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. AR. Lakshmanan & Altamas Kabir, JJ.
M/s Sriram Industrial Enterprises Ltd. — Appellant
versus
Mahak Singh & Ors. — Respondents
Special Leave Petition (C) Nos. 16456-16460 of 2005
Decided on 8-3-2007
Counsel for the Parties :
For the Appellant : Ashok Desai and Jayant Bhushan, Sr. Advocates, Ms. Meera Mathur, Advocate.
For the Respondents : K.V. Vishwanathan, Devvrat, Nikhil Majithia, Rajeev Singh and Anish Kumar Gupta, Advocates.

IMPORTANT POINT
The exclusion of the word ‘preceding’ from Section 2(g) of the U.P. Industrial Disputes Act indicates that a workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service.

Headnote:LABOUR LAW — U.P. Industrial Disputes Act, 1947 — Section 6N rw/s 2(g) — Industrial Disputes Act (Central), 1947 — Section 25B — Retrenchment of workmen — Conditions precedent — Expression ‘continuous service’ — Difference in definition of ‘continuous service’ mentioned in Section 25B (2a) of Central Act and in Section 2(g) of the U.P. Act — Exclusion of word ‘preceding’ from Section 2(g) of U.P. Act — A workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service — Respondents workmen claim that they had never worked as temporary hands but had worked continuously from 26-2-1991 to 31-1-1995 without break — Employer’s case that since the sugar industry is a seasonal industry, most of the work force are engaged as casual and temporary hands — On behalf of petitioner employer, only the extracts of attendance record of the last 12 calendar months of the workmen immediately preceding the date of their retrenchment had been produced from which it was evident that none of the workmen had worked for more than 240 days during the said period — Tribunal noticed that petitioner had failed to assign any cogent reason for not producing Attendance Register of previous years — Whether High Court was justified in drawing an adverse inference against the employer for non-production of documents in its possession — (Yes) — High Court adopted correct approach in allowing claim of workmen.

       Held : a decision in this matter will depend on the understanding of the expression “continuous service” as used in Section 6 N read with Section 2 (g) of the U.P. Act as against its usage in Section 25B (2) (a) (ii) of the Central Act. (Para 29)

       The exclusion of the word “preceding” from Section 2 (g) of the U.P. Act indicates that a workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service. In fact, such an interpretation has already been given by this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. (supra). The case made out by the respondents before the Tribunal was also on the same lines in the Adjudication cases filed before the labour court, where the respondents had made out a case that they had never worked as temporary hands but had worked continuously from 26th February, 1991 to 31st January, 1995 without break. (Para 30)

       The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an adverse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise. (Para 32)

       In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6 N read with Section 2 (g) of the U.P. Act which is applicable to these petitions. (Para 33)

       Having correctly interpreted the provisions of Section 6 N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer’s case (supra) were watered down by the subsequent decision in R.M. Yellatty’s case (supra) and in our view the workmen had discharged their initial onus by production of the documents in their possession. (Para 34)