J.H. Bhatia, J.
1. Both these petitions may be disposed of by common judgment as the award passed by the Labour Court, Chandrapur in Reference IDA No. 37/1991 has been challenged by opposite parties.
2. To state in brief, employee Ratan Budha Alam, made a grievance before the Deputy Commissioner of Labour, under Section 10(1)(c) and Section 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as .Act. for the sake for brevity), alleging that he was working as Choukidar at River Gauging Station, Nandgoor, tq. Mul, dist. Chandrapur from January-1989 with Sub Divisional Officer, Water Resources, Special Division No. 6, Brahmapuri, dist. Chandrapur. He was getting Rs. 50/- per month as wages. He had sincerely and continuously worked for 240 days. According to him, without giving any notice or order, his services were terminated with effect from 06.11.1990. According to him, the Sub Divisional Officer, Water Resources, had not prepared any seniority list and had not followed the rules of first come last go or last come first go. Thus, the termination of the employee was illegal. Not only this, after his illegal termination, the Sub Divisional Officer had appointed casual labourers. Therefore, he claimed direction to be absorbed on duty with continuity of service from 06.11.1990 and back wages. The dispute was referred by the Deputy Commissioner Labour to Labour Court, Chandrapur for adjudication. The employee, who was party No. 2 in the said reference, submitted his statement of claim accordingly.
3. The Sub Divisional Officer, Water Resources i.e. party No. 1 in the reference, filed written statement and denied that the employee was continuously working from January-1989 till 06.11.1990 and that he was getting fixed wages. It was also denied that he had completed 240 days of work and that he was illegally terminated from services. It was contended that the employee used to be engaged as seasonal labourer from 15th June to October. On completion of the season, he used to be discontinued along with such other daily rated seasonal labourer. He was paid daily wages as per the prevailing rates. It was contended that at the end of season, all such labourers working during the season, were discontinued. This employee worked up to 28.05.1990 and, thereafter, no worker was engaged on daily wages at River Gauging Station, Nandgoor.
4. The employee examined himself and on behalf of the employer, Sub Divisional Officer, Shivshankar Mahadeo Burde, was examined. He also produced the original registers as well as xerox copies of the muster rolls to show that the employee was engaged on daily wages, only during the season and he had last worked up to 28.05.1990. The employee did not produce any record in support of his claim. However, after hearing the parties, the learned Judge of the Labour Court, passed the impugned award dated 09.08.2000, holding that the employee was illegally terminated and he is entitled to be reinstated with continuity of service. Accordingly, Sub Divisional Officer was directed to reinstate the employee with continuity of service. However, back wages are refused because the employee had himself admitted that after his termination he was working as Hamal and was getting Rs. 50/- per day and thus, he was getting more wages than what he was getting while working with the employer-Sub Divisional Officer.
5. Being aggrieved by the order of reinstatement, State of Maharashtra has filed Writ Petition No. 4816/2000. Their main contention is that the employee had not produced any evidence to show that he had continuously worked for 240 days or that he was appointed and had worked as Choukidar on fix salary. It is contended that the Labour Court has not considered the documentary evidence, particularly the muster roll produced by the Sub Divisional Officer, and has wrongly come to the conclusion that the employee had worked for 240 days. Being not satisfied with refusal to pay back wages, the employee has also filed Writ Petition 1541/2001. According to to him, there was no justification to refuse back-wages when it is proved that his services were terminated illegally.
6. Ms. Khade, learned A.G.P. for the State, vehemently contended that Water Resources Department, in which the employee was working for some time, is not an Industry. According to her, there is no evidence to show that the employee had worked for a period of 240 days in the year preceding the alleged termination. According to her, as per the evidence led by the State, he had last worked on 28.05.1990 and not thereafter and even till that day, he had not worked for 240 days in the preceding year. According to her, no evidence was placed on record by the employee to show that he had actually worked for 240 days. All these contentions are contested by Mr. Meghe, learned Counsel for the respondent/employee.
7. At the outset, it may be stated that in the written statement filed by the employer before the Labour Court, no plea was taken that the Water Resources Department is not an Industry and, therefore, the Laobur Court was not called upon to deal with this issue. Not only this, even in the writ petition filed by the State before this Court, this plea was not taken. For the first time, this plea has been taken during the arguments by learned A.G.P. The learned A.G.P., in support of her contention, placed reliance upon judgment of the Supreme Court on Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. 1997 2 CLR 387, wherein two Judge Bench of the Supreme Court, in para 3, observed as follows:
It is now well settled legal position that the Irrigation Department and Telecommunication Department are not an 'Industry' within the meaning of definition under the Industrial Disputes Act as held in Union of India v. Jai Narain Singh (1995) Supp 4672 and in State of H.P. v. Suresh Kumar Verma : [1996]1SCR972 . The function of public welfare of the State is a sovereign function. It is the constitutional mandate under the Directive Principles, that the Government should bring about welfare State by all executive and legislative actions. Under these circumstances, the State is not an 'industry' under the Industrial Disputes Act. Even otherwise, since the Project has been closed, the respondent has no right to the post since he had been appointed on daily wages.
From these observations, it appears that the Apex Court had rejected the claim of the workman on two grounds. Firstly, the Irrigation Department is not an industry and secondly, he was appointed on daily wages for working under a particular project and as that project itself was closed, no work was available for him and, therefore, he could not have been reinstated.
8. Here, in the present case, we are concerned with the first point; whether Irrigation Department is an Industry or not?
It may be noted that in Des Raj and Ors. v. State of Punjab and Ors. : (1988)IILLJ149SC , the Supreme Court had dealt with the question as to whether the Irrigation Department in the State of Punjab is an Industry or not. Their Lordships, after taking stock of large number of judgments, particularly, the judgments of five Judges Bench in D.N. Banerji v. P.R. Mukherjee : [1953]4SCR302 and Seven Judge Bench in Bangalore Water Supply and Sewerage Board v. A. Rajappa : (1978)ILLJ349SC , and special report pertaining to the nature of work of Irrigation Department, came to the conclusion that the Irrigation Department is an Industry. It appears that this judgment of the Apex Court in Des Raj and Ors. v. State of Punjab and Ors. (supra) was either not brought to the notice or was not considered by their Lordships in Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. (supra).
In Executive Engineer, Yavatmal Medium Project Division and Anr. v. Anant s/o Yadao Murate and Anr. : (1998)IILLJ77Bom , learned Single Judge of this Court had an opportunity to consider whether the judgment rendered by the Supreme Court in Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. (supra) is per incurium as their Lordships had not considered earlier authorities and particularly judgment of the Supreme Court in Des Raj and Ors. v. State of Punjab and Ors. (supra). The learned Single Judge of this Court came to the conclusion that Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. (supra) was decided without taking into consideration the earlier judgments of the Supreme Court, particularly Des Raj and Ors. v. State of Punjab and Ors. (supra). The learned Single Judge came to the conclusion that this Court is bound by the reasoned judgment of the Supreme Court in Des Raj and Ors. v. State of Punjab and Ors. (supra). It was also held that the Irrigation Department of the State of Maharashtra is an Industry. Learned Counsel for the respondent also points out that the said judgment of the learned Single Judge was approved by the Division Bench in the Letters Patent Appeal No. 50/2004 decided on 29.10.2004. Thus, even after the judgment of the Supreme Court in Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. (supra), the Division Bench of this Court also came to the conclusion that the Irrigation Department in the State of Maharashtra is an Industry. It may also be noted that same view was taken by Division Bench of Karnataka High Court in Tungabhadra Board v. Easu and Anr. : (1999)IILLJ1014Kant .
Therefore, I find no substance in the contention of learned A.G.P. that Irrigation Department in the State of Maharashtra is not an industry.
9. Now, coming to the facts of the case, in his statement of claim filed by the employee, he had stated that since January 1989, he was working on the post of Choukidar at River Gauging Station Nandgoor, tq. Mul, dist. Chandrapur and he was getting salary of Rs. 50/- per month. According to him, he had worked for 240 days and on 06.11.1990, without giving any reason, his services were terminated. On the other hand, in the written statement, it was contended that the employee was engaged as casual daily wage labourer/seasonal labourer i.e. during the period from 15th June to October. He had not completed 240 days in any one calendar year and after completion of season, along with other casual labourers, he was discontinued. Now, coming to the evidence led by the parties, the employee deposed that since January-1989, he was working as Choukidar and was getting wages at the rate of Rs. 500/- per month. It is material to note that in his statement of claim, he has stated that his salary was Rs. 50/- per month while in the evidence he deposed that the salary was Rs. 500/-. In the cross-examination, the employee admitted that initially he was working on the river gauging work, which was seasonal. He admitted that his work was to gauge the flow of river water. He admitted that this work was intermittent. He also admitted that he was engaged as and when work was available. It shows that it was not a continuous work and he was getting work intermittently. He did not produce any document to show that he was ever appointed as Choukidar on monthly salary and he admitted that he has no such document. From this, it is clear that his contention that he was engaged as Choukidar since January-1989, is not correct. If it is so, his salary could not have been Rs. 500/- per month. It was put to him that during July-August-1988, the daily wages were at the rate of Rs. 19.40 and he was paid Rs. 504/- for the work done during the month from 29.07.1988 to 28.08.1988. However, he denied this fact. In the cross-examination he admitted that he was paid wages for the working days.
10. On the other hand, Shivshankar Mahadeo Burde, Sub Divisional Officer, who gave evidence on the basis of office record, deposed that the employee was working on daily wages as Labourer. The work was purely temporary in nature and he was engaged only to help the permanent staff members in water level gauging. Permanent staff members were working to measure velocity of the river flow by current meter. That work is done by skilled workers of permanent staff. The present employee was helping the permanent staff in carrying the apparatus for that purpose. He also deposed that the work was seasonal in nature and normally the said work was carried out from June to October. He filed muster roll for the relevant period showing the number of working days of the employee as well as some other labourers. His examination-in-chief shows that he had also brought the original register before the Court. According to his evidence, the employee had worked till 28.05.1990 lastly and, thereafter, he was not on the work. In cross-examination, it was put to him that he had not produced the documents on record showing that the employee was taken on seasonal basis. The muster rolls show that the employee had actually worked during the period from 25.10.1989 to 23.11.1989 vide Exh.-27, during 24.11.1989 to 24.12.1989 vide Exh.-28 and during 28.04.1990 to 28.05.1990 vide Exh.-29. There is nothing on record to show that the employee had actually worked beyond 28.05.1990. I have carefully perused the relevant nominal muster rolls for the aforesaid periods, which show that the employee was working during the said period on daily wages. Initially, the rate of daily wages was Rs. 19.40 per day and it was revised to Rs. 22.30 per day and he was paid accordingly. Thus, as per the evidence led by the employer, the employee had worked up to 28.05.1990 and, there is nothing to show that he had worked for 240 days in the year preceding that date. It is contended on behalf of the employee that the employer had not produced other muster rolls to show that he was continuously working from June-1989 to November- 1990. It is important to note that the employee admitted in his crossexamination that he had inspected the muster rolls regarding his attendance in the office. Therefore, he was fully aware that the record was available to show his attendance. He did not produce any record to show that he had attended the work from June-1989 to November- 1990 nor he made any request to the Labour Court to give direction to the employer to produce the records, which were not produced according to him. When, particular records were produced, showing attendance during a particular period, he could have certainly made request to the Court to call record for the remaining period, if he was sure that he had worked during those periods. In view of the fact that, neither the employee himself produced any record to show that he was appointed as Choukidar or to show that he had worked continuously from June-1989 to November-1990 nor he made any request to direct the employer to produce records, which were not produced according to him, inference can be drawn against him.
11. In Surendra Nagar district Panchayat v. Dahyabhai Amarsingh : (2006)ILLJ424SC ; the Supreme Court, after referring to several judgments, clearly held that initially burden lies on the employee to show that he had worked for 240 days in the year preceding his termination, particularly, when he is not in continuous service within the meaning of Section 25B of the Act. Their Lordships observed as follows:
16. In Range Forest Officer v. S.T. Hadimani (SCC at p. 26, para 3) this Court held that:
In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone,the award is liable to be set aside.
17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, Municipal Corpn., Faridabad v. Siri Niwas and M. P. Electricity Board v. Hariram this Court has reiterated the principle that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the factum of his being in employment of the employer.
18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no coworker was examined; muster roll produced by the employer has not been contradicted. It is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service.
12. It appears from the judgment of Labour Court that, several authorities were referred to show that the burden lies on the employee to prove that he had worked for 240 days but in spite of having referred those authorities, the Labour Court, relying only on the words of the employee, came to the conclusion that he was working continuously and he had worked for 240 days prior to his termination. It may also be noted that the employee had deposed that he would examine Ramkrushna Kowe, K. K. Shirpurkar, and Aibatawar, as his witnesses to prove that he was continuously working. However, he did not examine any of them. In fact, his pleadings and evidence are inconsistent and contrary to the record. As pointed out earlier, in his statement of claim he contended that he was getting salary of Rs. 50/- per month. It is not that it was a typographical mistake in figures. The amount of salary was specifically mentioned in words also. In his evidence, he deposed that he was getting salary of Rs. 500/- per month. However, record reveals that initially he was getting wages at the rate of Rs. 19.40 per day and later on it was revised to Rs. 22.30 per day. Record clearly shows that he was paid wages according to the number of days worked and it was seasonal work. According to the employer, the work was available from June to October. However, it appears that he was also required to work during certain months beyond that period. Naturally, if same work was available he was called and required to work but merely because he was required to work during the month of November- December or April-May, it cannot be held that he had continuously worked.
13. Taking into consideration this evidence, I find that there is no material on record to hold that the employee was continuously working from June-1989 to 06.11.1990 when, according to him, he was terminated nor there is any evidence on record to show that he had worked for 240 days in the year immediately preceding the date of his termination on 06.11.1990 or immediately preceding the year before 28.05.1990. In view of this, he is not entitled to protection and benefits under Section 25F of the Act, which provides that no workman or employee, who has been in continuous service for not less that one year, shall not be retrenched, unless one month's notice or wages in lieu of the notice and retrenchment compensation is paid.
14. Mr. Meghe, Learned Counsel for the employee, contended that even if he was not entitled to benefit under Section 25F of the Act, provisions of Section 25G require that the principle of last come first go has to be followed at the time of retrenchment of even daily wage worker. According to him, several junior persons were retained in service. In his evidence, the Sub Divisional officer, Shivshankar Burde denied that any junior of this employee was retained in service. Seniority list has been produced but that seniority list only shows that certain workers on daily wages and work charge workmen working in different sub divisions of this Department were working even after May-1990. However the said seniority list does not show that any daily rated worker was working with Sub Division No. 6-Brahmapuri where present employee was engaged on daily wages. Even in the written statement, it was stated that after discontinuation of the present employee, no casual labourer has been engaged on River Gauging Station, Nandgoor where he was engaged as labourer. In view of this evidence, it appears that there is no material to show violation of provisions of Section 25G of the Act.
15. Taking into consideration all this material, I find that the Labour Court was wrong in giving direction to reinstate this employee with continuity of service. Therefore, Writ Petition No. 4016/2000, filed by State deserves to be allowed. As order of reinstatement itself is not found correct, Writ petition No. 1541/2001, filed the employee claiming full back wages, cannot succeed and is liable to be dismissed. It may be noted that in his cross-examination, the employee had specifically admitted that, after his termination, he was working as Hamal and was getting Rs. 50/- per day as wages. Thus, he was earning more than what he was getting under Sub Divisional Officer, Jalsampada, Brahmapuri. It was for this reason that the Labour Court had refused the back wages. However, during pendency of this petition, the employee had made an application under Section 17B of $ the Act for direction that he should be paid full back wages pending this petition. By orders dated 14.08.2002 and 16.12.2003, this Court had directed the petitioner/State to pay wages at the rate of Rs. 2288/- per month for the period from 01.08.2002 onwards and at the rate of Rs. 2448/- from 18.03.2003, onwards and the learned A.G.P. states that this order has already been complied with and payments have been made, from time to time. The payment is not disputed by learned Counsel for the employee. Now, when I have come to the conclusion that he is not entitled to be reinstated, the question of payment of wages, during the pendency of the petition would not arise. However, fact is that, a large amount has already been paid to him as per above referred two orders of this Court. The employee is a daily wage earner and it is impossible to presume that he had saved all this money after receiving from the Government. Even though, he has been working as Hamal, it would be difficult for him to make any saving and, therefore, I find that it is not possible to recover the amount, which is already paid to him and if recovery is directed, it may cause great inconvenience and difficulty to the said employee. %'& Therefore, I am also not inclined to give directions for recovery of that money.
16. For the aforesaid reasons, Writ Petition No. 4016/2000 is allowed. The impugned order passed by Labour Court in Reference IDA No. 37/1991, directing the employer to reinstate the employee- Ratan Budha Alam, is hereby set aside.
However, it is hereby made clear that amount of wages paid to said Ratan Budha Alam, during pendency of these petitions as per orders dated 14.08.2002 and 16.12.2003, shall not be recovered from him.
Rule made absolute accordingly. No order as to costs.
Writ petition No. 1541/2001 filed by employee-Ratan Budha Alam, stands dismissed. Rule discharged. No order as to costs.