Present: Mr. Rajesh Arora Advocate Vs. Presiding Officer, Labour Court, Ambala and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1155719
CourtPunjab and Haryana High Court
Decided OnJul-10-2014
AppellantPresent: Mr. Rajesh Arora Advocate
RespondentPresiding Officer, Labour Court, Ambala and Others
Excerpt:
cwp no.13034 of 2014 1 in the high court of punjab and haryana at chandigarh cwp no.13034 of 2014 date of decision: 10.07.2014 ram rattan ...petitioner(s) versus presiding officer, labour court, ambala and others ...respondent(s) coram: hon'ble mr.justice g.s.sandhawalia present: mr.rajesh arora, advocate, for the petitioner. g.s.sandhawalia, j. (oral) challenge in the present writ petition is to the award dated 09.02.2011 (annexure p-4) whereby, the claim of the petitioner-workman was dismissed by recording a finding that he had not worked for 240 days and there is nothing to show that there was any violation of section 25-g of the industrial disputes act, 1947 (in short 'the act').the case of the petitioner was that he was working as helper/beldar with the respondent-university since 01.05.2001 on daily wages in various divisions and worked upto 31.05.2007 and was not allowed to join thereafter. a demand notice under section 2-a of the act was served on 18.06.2007 alleging violation of provisions of section 25-f, 25-g and 25-h of the act, which was resisted by filing reply in which, it was submitted that persons were being engaged on the basis of need of work on daily wages from time to time to carry out the work which was intermittent in nature. accordingly, it was pleaded that there was no gupta shivani 2014.07.15 12:42 i attest to the accuracy and integrity of this document chandigarh cwp no.13034 of 2014 2 violation of sections 25-f, 25-g and 25-h of the act. the matter was referred to the labour court, on failure of the reconciliation proceedings. the workman did not examine anyone and only appeared as his own witness as ww1. the labour court perused the record from the year 2001 onwards which was produced and noticed that workman had worked for 144 days in 2001, 208 days in 2002, 295-1/2 days in 2003, 205 days in 2004, 192 days in 2005, 122 days in 2006 and 111-1/2 days in 2007. accordingly, a finding was recorded that the entire record had been made available and there was no reason to disbelieve the same as it was got produced by the petitioner-workman himself through the summoned witness raghubir singh, the sdo. it was accordingly held that the onus shifted upon the petitioner-workman to prove his assertion and no suggestion had also been put to the witness that the record was not complete or that the record favourable to the workman had been withheld. on the issue of allegations that juniors and new persons namely ram murti, shiv rattan and jarnail singh had been appointed, it was held that no material had been produced to show the said fact and the reference has accordingly been dismissed. it is settled principle of law to prove the factum of having worked for 240 days apart from the statement made by the workman, it was open to him to file an appropriate application to summon the record so that a finding can be recorded, that there is any legal right of the workman which has been violated under section 25-f and 25-b of the act. the respondent- university had produced the record but no such application was filed by the petitioner before the labour court to call for some particular record which had been withheld. the apex court in, r.m.yellati versus the assistant gupta shivani 2014.07.15 12:42 i attest to the accuracy and integrity of this document chandigarh cwp no.13034 of 2014 3 executive engineer, 2006 (1) scc106 has observed on the said issue which reads as under:- “analyzing the above decisions of this court, it is clear that the provisions of the evidence act in terms do not apply to the proceedings under section 10 of the industrial disputes act. however, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. this burden is discharged only upon the workman stepping in the witness box. this burden is discharged upon the workman adducing cogent evidence, both oral and documentary. in cases of termination of services of daily waged earner, there will be no letter of appointment or termination. there will also be no receipt or proof of payment. thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc.drawing of advers.inference ultimately would depend thereafter on facts of each case. the above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. the above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an advers.inference against the management. lastly, the above judgments gupta shivani 2014.07.15 12:42 lay down the basic principle, namely, that the high i attest to the accuracy and integrity of this document chandigarh cwp no.13034 of 2014 4 court under article 226 of the constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. this exercise will depend upon facts of each case.”. the said exercise having not been done by the workman, the question of any advers.inference being drawn against the university does not arise. on the other issue also, it was for the workman to show that when the said person had been appointed and whether they were appointed subsequent to him or that they were junior to him. in the absence of any record to that effect being produced or summoned, the labour court has rightly declined the reference. another factor which goes against the petitioner is that the award is dated 09.02.2011. a period of almost 3-1/2 years has expired since then. no reasonable explanation has been given in the writ petition as to the cause of delay. accordingly, this court is of the opinion that the present writ petition is not liable to be entertained and the same is dismissed in limine. 10.07.2014 (g.s.sandhawalia) shivani judge gupta shivani 2014.07.15 12:42 i attest to the accuracy and integrity of this document chandigarh
Judgment:

CWP No.13034 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13034 of 2014 Date of decision: 10.07.2014 Ram Rattan ...Petitioner(s) Versus Presiding Officer, Labour Court, Ambala and others ...Respondent(s) CORAM: HON'BLE Mr.JUSTICE G.S.SANDHAWALIA Present: Mr.Rajesh Arora, Advocate, for the petitioner.

G.S.SANDHAWALIA, J.

(Oral) Challenge in the present writ petition is to the Award dated 09.02.2011 (Annexure P-4) whereby, the claim of the petitioner-workman was dismissed by recording a finding that he had not worked for 240 days and there is nothing to show that there was any violation of Section 25-G of the Industrial Disputes Act, 1947 (in short 'the Act').The case of the petitioner was that he was working as Helper/Beldar with the respondent-University since 01.05.2001 on daily wages in various divisions and worked upto 31.05.2007 and was not allowed to join thereafter.

A demand notice under Section 2-A of the Act was served on 18.06.2007 alleging violation of provisions of Section 25-F, 25-G and 25-H of the Act, which was resisted by filing reply in which, it was submitted that persons were being engaged on the basis of need of work on daily wages from time to time to carry out the work which was intermittent in nature.

Accordingly, it was pleaded that there was no Gupta Shivani 2014.07.15 12:42 I attest to the accuracy and integrity of this document Chandigarh CWP No.13034 of 2014 2 violation of Sections 25-F, 25-G and 25-H of the Act.

The matter was referred to the Labour Court, on failure of the reconciliation proceedings.

The workman did not examine anyone and only appeared as his own witness as WW1.

The Labour Court perused the record from the year 2001 onwards which was produced and noticed that workman had worked for 144 days in 2001, 208 days in 2002, 295-1/2 days in 2003, 205 days in 2004, 192 days in 2005, 122 days in 2006 and 111-1/2 days in 2007.

Accordingly, a finding was recorded that the entire record had been made available and there was no reason to disbelieve the same as it was got produced by the petitioner-workman himself through the summoned witness Raghubir Singh, the SDO.

It was accordingly held that the onus shifted upon the petitioner-workman to prove his assertion and no suggestion had also been put to the witness that the record was not complete or that the record favourable to the workman had been withheld.

On the issue of allegations that juniors and new persons namely Ram Murti, Shiv Rattan and Jarnail Singh had been appointed, it was held that no material had been produced to show the said fact and the reference has accordingly been dismissed.

It is settled principle of law to prove the factum of having worked for 240 days apart from the statement made by the workman, it was open to him to file an appropriate application to summon the record so that a finding can be recorded, that there is any legal right of the workman which has been violated under Section 25-F and 25-B of the Act.

The respondent- university had produced the record but no such application was filed by the petitioner before the Labour Court to call for some particular record which had been withheld.

The Apex Court in, R.M.Yellati versus The Assistant Gupta Shivani 2014.07.15 12:42 I attest to the accuracy and integrity of this document Chandigarh CWP No.13034 of 2014 3 Executive Engineer, 2006 (1) SCC106 has observed on the said issue which reads as under:- “Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act.

However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year.

This burden is discharged only upon the workman stepping in the witness box.

This burden is discharged upon the workman adducing cogent evidence, both oral and documentary.

In cases of termination of services of daily waged earner, there will be no letter of appointment or termination.

There will also be no receipt or proof of payment.

Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc.Drawing of adveRs.inference ultimately would depend thereafter on facts of each case.

The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year.

The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adveRs.inference against the management.

Lastly, the above judgments Gupta Shivani 2014.07.15 12:42 lay down the basic principle, namely, that the High I attest to the accuracy and integrity of this document Chandigarh CWP No.13034 of 2014 4 Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse.

This exercise will depend upon facts of each case.”

.

The said exercise having not been done by the workman, the question of any adveRs.inference being drawn against the University does not arise.

On the other issue also, it was for the workman to show that when the said person had been appointed and whether they were appointed subsequent to him or that they were junior to him.

In the absence of any record to that effect being produced or summoned, the Labour Court has rightly declined the reference.

Another factor which goes against the petitioner is that the award is dated 09.02.2011.

A period of almost 3-1/2 years has expired since then.

No reasonable explanation has been given in the writ petition as to the cause of delay.

Accordingly, this Court is of the opinion that the present writ petition is not liable to be entertained and the same is dismissed in limine.

10.07.2014 (G.S.SANDHAWALIA) shivani JUDGE Gupta Shivani 2014.07.15 12:42 I attest to the accuracy and integrity of this document Chandigarh