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2008 (2) GCD 1119 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Principal, S.V. Doshi Girls High School & Anr.
Versus
Lilaben Somabhai Gadasa
Special Civil Application No. 146 of 2008—Decided on 09/01/2008
Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Sections 10, 25-B(1) and 25-F — Order of termination set aside and granted reinstatement with continuity of service with 20% back wages — Respondent workman was appointed as peon and worked from 1997 to 2000 and 2001 to 14.09.2005 — Workman terminated by oral order —Employer not supplied a single document to respondent workman to prove her case of completion of 240 days continuous service —Workman discharged the burden and then burden shifted upon the employer to disprove the legal evidence — No explanation given by management for not producing the relevant vouchers and adverse inference rightly drawn against the employer — Two witnesses produced by the petitioner has rightly disbelieved — Held, Labour Court has not committed any error which requires interference under Article 227.
The Labour Court has discussed the issue at Page 12 relying upon the oral evidence of the workman that when she makes statement on oath that she remained in service and completed 240 days continuous service. It is not the case of the petitioners before the Labour Court that respondent workman has supplied appointment order, wage slip, identity card or muster card. The order of termination is also not in writing but it was oral termination. Meaning thereby that workman, who was engaged orally and terminated orally, in between not a single document has been supplied by the petitioner to the workman, so she can produce such evidence before the Labour Court to prove her case of completion of 240 days continuous service. In absence of aforesaid document, it is very difficult for the workman to prove 240 days continuous service except the deposition of the workman before the Labour Court. If the case of the petitioner before the Labour Court was that appointment order was issued, pay slip was given and if it is not produced by the workman, then the contention raised by learned Advocate Mr. Pandya can be considered. But, admittedly no document was supplied by the petitioner to the workman and in absence of such document, how the workman can prove 240 days continuous service, except on oath self statement made by the workman. A moment a legal evidence led by the workman against the petitioner then it is a burden shifted from workman to employer to disprove the claim of the workman. Initially burden is upon the workman to prove continue service of 240 days but that has been discharged by making self statement on oath and then, burden is shifted or onus is shifted upon the employer to disprove the legal evidence of the workman by producing relevant documents or by producing the oral evidence. In such circumstances, 10 vouchers were produced vide Exhibit 37 by the petitioner before the Labour Court. That was covered only November, 2003 one voucher, January, 2004 one voucher and 2005 7 vouchers. But oral evidence of the workman was made it clear that she was remained in service from 1997 to 2005 then why management has not produced all the relevant vouchers for the entire period, for that no explanation is given by the management before the Labour Court.
[Para 5]
There is no need to make allegation by the workman because onus is already shifted by the employer to disprove the claim of workman which has not been discharged by the petitioner by producing proper evidence before the Labour Court. In that circumstances, adverse inference rightly drawn by the Labour Court against the petitioner. For that, according to my opinion, the Labour Court has not committed any error which requires interference by this Court. [Para 5]
Considering Section 25(B)(1) of the Act, the respondent workman remained in service from 1997 to 2005 and in between, her service was not terminated by the petitioners. The service if interrupted not due to fault of the workman, then such service is considered continuous service within the meaning of Section 25-B of the I.D. Act, 1947. [Para 7]
The Labour Court has rightly considered the oral evidence of the workman and also considering the certificates produced by the workman. In labour proceedings, strictly Evidence Act is not made applicable. Certain provisions are made applicable under Section 11 of the I.D. Act, 1947. If any document is produced by the party, if it is disputed by the other side then, other side must have to come out with the case that such document is not correct, bogus or not genuine. The certificate which has been produced on record with the petition Page-27 which is not disputed by the petitioner, even considering these 10 vouchers, working days considering each month more than 15 to 18 days. So the stand taken by the employer that as and when work required, she was called by the employer which is apparently not found to be correct. It is also necessary to note on important aspect that two witnesses were examined by the petitioner before the Labour Court. None of the witnesses has made clear before the Labour Cout that she was not remained in service from 1997 to 2005. Two persons were examined and both have not any personal information or knowledge in respect to the appointment, working and termination of the concerned workman. So their evidence is also not reliable and rightly not relied by the Labour Court and accordingly, the Labour Court has rightly believed the case of the workman and considering evidence of the workman which has not been disproved by the petitioner, granted the relief. [Para 9]
The Labour Court has granted reinstatement the respondent workman and there is no direction of granting permanency or regular benefit in favour of respondent workman. The reinstatement suggests to restore the original position for that, petitioner must have to restore the original position. The Labour Court has rightly granted the back wages considering the object of the trust and also gainful employment not proved by the petitioner and having some presumption against the respondent workman that she may not remain without work during the entire period and, therefore, the Labour Court has rightly granted 20% back wages of interim period. For that, Labour Court has not committed any error which requires interference by this Court while exercising the power under Article 227 of the Constitution of India. [Para 10]
H.K. Rathod, J.—Heard learned Advocate Mr. Asim Pandya for H.L. Advocates on behalf of the petitioners.
2. In the present petition, the petitioners have challenged the award passed by the Labour Court, Amreli in Reference No. 31 of 2005 dated 04.12.2007 whereby the Labour Court has partly allowed the reference and set aside the termination order and granted reinstatement with continuity of service with 20% back wages of interim period with the cost of Rs. 1500/-.
3. Learned advocate Mr. Asim Pandya submitted that the Labour Court has committed gross error in deciding the award which is contrary to the decision of the Apex Court reported in 2006 (1) SCC 106. He submitted that respondent workman has not produced any documents to prove 240 days continuous service before the Labour Court. He also submitted that except the evidence of the workman, there is no other evidence from which 240 days is proved by the workman. The respondent workman has not called upon the petitioner to produce relevant documents for the relevant period during which she was working with the petitioner. So in absence of the demand made by the respondent workman, adverse inference drawn by the Labour Court which is contrary to law. He also submitted that her husband is working as a peon with the petitioner and that she was called upon the petitioner as and when work is required. That four permanent post of peon in which all the persons are working and no post is available with the petitioner. She was not selected, therefore, she had filed the suit. But in the said suit also, she was not able to get the interim order. Therefore, with ulterior motive, she raised industrial dispute challenging the termination order. He also submitted that in absence of documentary evidence from the workman, mere oral evidence cannot be taken into account being a proof of completion of 240 days continuous service. He relied upon Para 17 of the Apex Court’s decision in case of R.M. Yellattii as referred above. He also submitted that whatever the vouchers of the management, same were produce before Labour Court vide Exhibit 37. Except that there were no other vouchers available with the management. Therefore, according to his submissions, burden is upon the workman to prove 240 days continuous service and not upon the employer. The finding given by the Labour Court is that burden is upon the employer to disprove 240 days continuous service of the workman. Therefore, the Labour Court has committed gross error in coming to such conclusion which is contrary to the settled principles laid down by the Apex Court. He also submitted that without calling to the management to produce the relevant documents, it is not a duty of the management to produce all the relevant documents. Therefore, the adverse inference drawn by the Labour Court is also contrary to the law as decided by the Apex Court. He also submitted that she was occasionally called by the management and not regularly appointed and no post is available and therefore, reinstatement is not possible and in such circumstances, the Labour Court should not have to grant reinstatement to the respondent workman. Except that, learned Advocate Mr. Pandya has not made any submissions and not relied upon any other decision.
4. I have considered the submissions made by learned Advocate Mr. Pandya and have also perused the award passed by the Labour Court, Amreli. I have also considered the statement of claim of the workman and written statement made by the petitioners, vouchers and certificates which are annexed to the petition by the petitioners.
5. In respect to the certificates produced by the workman before the Labour Court, learned Advocate Mr. Pandya has submitted that it was not accepted and, therefore, same cannot be relied upon by the Labour Court. After perusing the award in question, according to workman, she was in service from 1997 to 14.09.2005 as a peon with the petitioner Trust. She was appointed as peon in K.K. High
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