Ravi R. Tripathi, J.
1. The present petition challenges the judgement and award dated 20th August, 1989 passed by the Labour Court, Bhavnagar in Reference (LCB) No. 493 of 1989, whereby the learned Judge was pleased to order reinstatement to the respondent-workman on his original post with full back-wages for the period from 30th August, 1989 till the workman is reinstated.
2. Mr. K.H. Baxi, learned Advocate appearing for the petitioner, submitted that the judgement and award is vitiated as the learned Judge has proceeded on a presumption for which there is no basis and there was no material before the learned Judge to come to the conclusion that there was breach of Section 25-F of the I.D. Act. Mr. Baxi invited the attention of the Court to the contents of paragraph-6 of the award wherein only exhibits are listed without discussing any one of them. He submitted that the learned Judge has drawn a presumption relying on the `statement of claim' filed by the respondent-workman and the deposition of the respondent-workman wherein he has deposed almost the same as that of his statement of claim.
Mr. Baxi, to support his contention that the respondent-workman ought to have proved that he had worked for 240 days, relied upon a judgement of the Honourable Apex Court in the matter between Range Forest Officer vs. S.T. Hadimani, reported in AIR 2002 SC 1147.
3. Mr. Subramaniam Iyer, learned Advocate for the respondent, strongly contended that, as observed by the learned Judge, there was breach of Sections 25-F, 25-G and 25-H of the I.D. Act and hence, the petition be dismissed. He relied upon a judgement of the Honourable Apex Court in the matter between Deepchandra vs. State of U.P. & Anr., reported in 2002 SCC (L&S;) 1010.
4. Heard Mr. K.H. Baxi, learned Advocate for the petitioner, and Mr. Subramaniam Iyer, learned Advocate for the respondent. Perused the record of the case and the judgements cited by the learned Advocates for both the sides.
5. The matter raises an important question as to whether which party has to prove before the Court the factum of working of 240 days in the preceding year of termination. Invariably, the matters, which come before this Court, contain narration of facts in a set pattern, namely, the respondent-workman has stated in the statement of claim that he joined the services on a particular date; that he continued to serve till a particular date when his services came to be terminated; and, that he had been working continuously with the employer and that he had worked in every year for 240 days. The facts itself are self contradictory inasmuch as if it is believed that the workman had joined the services on a particular date and has continued to work till a particular date till his services came to be terminated and that too continuously, then, there is no question of making a statement that he has worked for 240 days only in a year because if what is stated is wholly true, then, in that case, the workman has definitely worked for more than 240 days in a year. As it happens, the Government officers do not take up the matters with personal interest and do not produce any material on the record, the matters go undefended and the learned Judges, in the next sentence, record a finding that, 'it is, therefore, proved that the workman has worked for 240 days in every year'.
6. In paragraph 10 of the judgement and award, it is recorded by the learned Judge that the present applicant has stated in his statement of claim that, `since 17/02/1984, he was discharging duties as a peon at the Primary Health Centre of Village-Songadh of District Bhavnagar'. The next sentence is that, `the establishment terminated the services of the applicant-workman on 02/10/1988'. The establishment has filed a written statement wherein it is stated that, 'the applicant-peon was called for duty as and when his services were required and on completion of the work, he stood automatically relieved.' It is further stated in the written statement that, 'the applicant was working as a daily wager'. It is required to be noted that the applicant-workman does not mention that he was discharging the duties as a `daily wager', and he does not produce an iota of evidence, except making a statement in the `statement of claim' that he was working as a peon since 17/02/1984 and he continuously worked upto 02/10/1988. Despite the fact that the establishment has taken a defence in the written statement and has pleaded in terms that the applicant-workman has not worked continuously from 17/02/1984 to 02/10/1988 and that he was working only as a `daily wager' and that too, only when his services were required, the learned Judge has recorded that, 'the applicant-workman has deposed that, 'since 17/02/1984, until his services came to be terminated, he was continuously working as a peon'. At this juncture, it is to be noted that, even in the deposition, the workman does not disclose the nature of his employment, that he was a `daily wager'.
7. Indifferent approach on the part of the Government officials is reflected from the deposition of Shri Bahadursingh Vajubhai Chudasma, who was working as a Senior Clerk at the Primary Health Centre, who was examined as a witness of the establishment. The approach of this employee is apparent from his deposition, which is discussed in detail by the learned Judge. This witness has deposed that, 'the applicant-workman was working in the establishment as a daily wager'. The learned Judge did not think it fit to give any importance to this term, `daily wager'. The learned Judge has also not thought it fit to give any importance to the further deposition of this witness, which is to the effect that, 'the applicant-workman was working in the establishment from 17/02/1984 to 02/10/1988, intermittently as a daily wager'. After having so recorded, the learned Judge paused a question to himself that, `what is required to be determined is as to whether the applicant-workman has worked for 240 days in a year', and answered the same in the affirmative for the reasons that: (i) the applicant has deposed in his deposition on oath that he had discharged services at Songadh Primary Health Centre till 01/10/1988; (ii) the witness of the establishment, Shri Bahadursingh B. Chudasma, who was working as a Senior Clerk in the Primary Health Centre, has stated in his cross examination that Exh.22 depicts the date of entry of the applicant-workman as 17/02/1984; and, (iii) Exh.22 is produced by the establishment, which is a circular dated 28th March, 1989, a copy of which is made available by Mr. Iyer to this Court.
While the case of the applicant-workman is that he joined the services on 17/02/1984 and he worked upto 01/10/1988 as his services were terminated on 02/10/1988. The learned Judge, without applying his mind to the contents of the aforesaid circular dated 28th March, 1989 drew a conclusion that, 'as it is mentioned in this document, Exh.22, that the first appointment of the applicant-workman was on 17/02/1984, it is proved that since 17/02/1984, the applicant has discharged his duties as a peon'. The learned Judge is so generous and charitable in favour of the workman at the cost of public money that he did not take note of the fact that the circular is about the full time daily wagers.
8. The learned Judge has further appreciated the cross examination of the witness of the establishment wherein the witness has deposed as under :
'I do not know as to whether the applicant was appointed in the year 1986; I do not know as to whether there was any appointment order in the year 1984; I do not know that the applicant was given any appointment order either on 21/06/1984 or prior thereto; I do not know that after 1988, there was any order terminating the services of the applicant; I do not know as to when the applicant joined the services; that it is true that after the applicant joined the services and before he was terminated on 01/10/1988, in between, there was no order relieving him from the service.'
After picking up these sentences, which definitely do not represent the full text of the deposition, the learned Judge recorded a finding that, 'From the cross examination of the witness of the establishment, it is proved that the witness does not have any information about the appointment of the applicant. The witness does not have information about the entry of the applicant in the services. But, it is proved by this witness that between the joining of the services and termination of his services, there was no order terminating his services'. The conclusion drawn by the learned Judge is that, 'It is, therefore, proved that the applicant-workman has worked in the establishment from 17/02/1984 to 01/10/1988 continuously and that during this period, the establishment has not terminated the services of the applicant.'
9. Non-application of mind on the part of the learned Judge is apparent from the contents of paragraph-11 of the judgement and award because in this paragraph for the first time, the learned Judge has recorded that, 'the applicant-workman has discharged duties for different periods between 17/02/1984 to 01/10/1988 as a peon - daily wager'. After mentioning the exhibit numbers of four documents, namely, Exhs.28, 29, 30 and 31, without discussing any contents of those documents, the learned Judge has recorded a finding that, 'from this witness, it is established that the applicant-workman has worked continuously for one year and 240 days till his services were terminated'. The learned Judge has referred to `muster roll' for the month of January-1984, Exh.21, and then recorded that, 'no other muster roll is produced'. The learned Judge has not discussed as to whether the name of the applicant-workman was found in the said muster roll or not. The learned Judge, at the best, could have drawn an adverse inference for not producing the documents, but instead of that, he has recorded a positive finding that, 'it is proved that the applicant-workman has worked for 240 days in the establishment and, therefore, the provisions of Section 25-F are applicable and as compliance thereof is not reported and recorded, there is a breach of Section 25-F'.
If this practice is allowed to continue, it will result into grave miscarriage of justice. The finding recorded by the learned Judge that there is a breach of Section 25-F is, therefore, quashed and set aside.
9. So far as the breaches of Sections 25-G and 25-H are concerned, nothing much can be said. Mr. Baxi is not able to dislodge the findings recorded by the learned Judge. Of course, the fact remains that the said findings are recorded only on the basis of the deposition of the witness of the establishment. If the establishment is negligent in examining the witness who does not depose the facts duly supported by the documentary evidence, it is for the establishment to take consequences of the same. It appears that so far as continuing the junior to the applicant-workman, and not recalling the applicant-workman and at the time of recruiting or employing new persons, there is a breach of Sections 25-G and 25H and the establishment has to take the consequences of the same. In light of that, so far as the order of reinstatement of the respondent-workman is concerned, the same cannot be interfered with and the same is upheld.
10. A similar story is repeated about the grant of back-wages. When it comes to grant the back-wages, the learned Judge has refused to grant the back-wages for the period from 02/10/1988 to 30/08/1989, the date on which the applicant-workman approached the Labour Court, but then, the learned Judge, by recording two simple sentences that the applicant-workman had made attempts to get the employment and that he did not get the employment and that the establishment is not able to prove that the applicant was gainfully employed, has awarded full back-wages to the applicant-workman. Taking into consideration the fact that it is a public money, which is generously granted to the workman without appreciating the fact that he was a daily wager and he was employed only when his services were required, the learned Judge ought not to have awarded back-wages, more so, when the case of the applicant-workman was not found to be fully truthful. He made a statement in the statement of claim and thereafter also, in the deposition that he was working as a peon, without disclosing that he was working as a `daily wager' and without producing any material to show that he was paid only for such number of days for which he could get the work in a particular month, the learned Judge ought not to have granted the back-wages. In view of the foregoing discussion, the award of back-wages is also quashed and set aside.
11. In the result, the petition succeeds partly. Rule is made absolute to the aforesaid extent only. No order as to costs.