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Supreme Court of India
THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE & THE HONOURABLE MR. JUSTICE H.L. DATTU
Director, Fisheries Terminal Division
Versus
Bhikubhai Meghajibhai Chavda
CIVIL APPEAL NO.7463 OF 2009 (Arising out of SLP(C) No. 14117 of 2008)
Decided On : 09-11-2009
(1995) 5 SCC 653 – Relied upon
(b) Industrial Disputes Act, 1947 – Section 2(j) – Industry – Seasonal industry – Nature of the industry whether seasonal or not – To be decided by appropriate Government – Instantly, nothing to show any decision of State Government determining the appellant a seasonal industry – Section 2(00)(bb) not attracted. (Para 12)
(c) Industrial Disputes Act, 1947 – Section 25F – Retrenchment – Having worked for 240 days in preceding twelve calendar months – Burden of proof – Workman deposing that he worked for 140 days – Burden shifts employer to show that he had not worked for 240 days in preceding twelve months prior to his alleged retrenchment – Employer not discharging burden – Adverse inference may be drawn. (Para 14, 15)
(2006) 1 SCC 106; (2004) 8 SCC 195 – Relied upon
(d) Industrial Disputes Act, 1947 – Section 25F, 25G – Workman retrenched without complying with section 25F and 25G – No delay in raising the dispute – Labour court an High Court rightly reinstated workman with 20% back wages. (Para 17)
(e) Industrial Disputes Act, 1947 – Section 25F, 25G – Workman retrenched without complying with section 25F and 25G – No delay in raising the dispute – Labour court an High Court rightly reinstated workman with 20% back wages. (Para 17)
Facts of the case:
The Fisheries Terminal Department, the appellant, established in 1976 provides landing facilities for catching fish in a clean and hygienic condition and for that purpose, services of daily wage workmen were utilized as and when needed. While this practice was going on, the State Government by its order dated 17.10.1988, directed all the departments of the State Government to discontinue the practice of engaging the services of daily wage workmen and in lieu of it to hire labourers on contractual basis.
The workman claimed before the labour court that he was employed by the appellant on 1.12.1985 as watchman and he was paid daily wages and his presence was also marked in the muster roll. It was further stated, that, his services were terminated without giving notice and without complying with the provisions of Industrial Disputes Act. The stand of the appellant before the labour court was that, the workman was employed on daily wage basis in the year 1986 and the workman had worked till 1988 and in all these years, the workman had worked for 93 days, 145 days and 31 days respectively, and thereby the workman had not worked for more than 240 days in any preceding year. It was also there plea, that, the appellant is a seasonal industry and, therefore, provisions under Section 25F of Industrial Disputes Act is not attracted.
The labour court concluded that the appellant is an industry. The labour court had directed the appellant to reinstate the respondent with 20% back wages for the period when the respondent was kept out of service.
The High Court has endorsed the award passed by the labour court
Finding of the Court:
There is no good reason to interfere with the impugned judgment.
Result:
Appeal dismissed.
Judgment :-
H.L. Dattu, J.
Leave granted.
2) This is an appeal against the judgment and order of the Gujarat High Court in S.C.A.
No. 29355 of 2007 dated 30.11.2007. By the impugned judgment, the court has affirmed the award passed by the labour court, Junagadh, in Reference Case No. 192 of 1995 dated 14th May, 2007, wherein and whereunder the labour court has directed the employer to reinstate the workman into service with 20% back wages.
3) The facts in brief are : The Fisheries Terminal Department; (`F.T.D. for short), the appellant herein, had come into existence sometime in the year 1976. The activities of
F.T.D. inter alia consisted of providing landing facilities for catching fish in a clean and hygienic condition and for that purpose, services of daily wage workmen were utilized as and when it was needed. While this practice was going on, the State Government by its order dated 17.10.1988, directed all the departments of the State Government to discontinue the practice of engaging the services of daily wage workmen and in lieu of it to hire labourers on contractual basis.
4) The claim of the workman before the labour court was that he was employed by the appellant on 1.12.1985 as watchman and he was paid daily wages and his presence was also marked in the muster roll. It was further stated, that, his services were terminated without giving notice and without complying with the provisions of Industrial Disputes Act. The stand of the appellant before the labour court was that, the workman was employed on daily wage basis in the year 1986 and the workman had worked till 1988 and in all these years, the workman had worked for 93 days, 145 days and 31 days respectively, and thereby the workman had not worked for more than 240 days in any preceding year. It was also there plea, that, the appellant is a seasonal industry and, therefore, provisions under Section 25F of Industrial Disputes Act is not attracted.
5) The labour court on consideration of the oral and documentary evidence, has concluded that the appellant is an industry, since there is no evidence to show that the appropriate government had declared the appellant as a seasonal industry or the work is performed intermittently. It has also observed, that, the appellant has not produced any documentary evidence to show that the workman had not completed 240 days in the preceding year and was not in service till 1991 and, therefore, adverse inference requires to be drawn that the workman has completed continuous service of 240 days and, accordingly, has concluded that the appellant-employer could not have retrenched the services of the workman without complying with the provisions of Industrial Disputes Act. In view of the aforesaid finding and the conclusion reached, the labour court had directed the appellant to reinstate the respondent with 20% back wages for the period when the respondent was kept out of service.
6) The award passed by the labour court was challenged by the appellant before the High Court. The High Court has endorsed the award passed by the labour court, on the ground that the labour court has rightly come to the conclusion that the appellant has not established by leading cogent evidence that the appellant is not a seasonal industry. It is also observed, that, once it has come in evidence that the workman has completed 240 days of service in the preceding year, then the initial burden is shifted on the employer to rebut the oral evidence of the workman by producing relevant oral and documentary evidence and since the appellant failed to produce the same before the labour court, it was justified in concluding that the workman had completed continuous service of 240 days during the preceding year and accordingly had dismissed the writ petition filed by the appellant.
7) Being aggrieved by the judgment and order passed by the High Court, the appellant is before us in this appeal.
8) The learned counsel for the appellant submitted, that, the appellant i
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