The Managing Director, Orissa Forest Development Corporation Limited Vs. State of Orissa and Others - Court Judgment

Excerpt:
labour & industrial - reinstatement - production of documents - industrial disputes act - respondent no. 3 engaged in different spells on daily wage basis - respondent no. 3 had put in 177 days of work and thereafter, he was retrenched from service - industrial dispute raised by respondent no. 3 - referred to labour court - labour court held that refusal of employment to respondent no. 3 is neither legal nor justified and directed reinstatement of respondent no. 3 in service with benefit of continuity of service and full back wages - hence, present writ petition - petitioner submitted that respondent no. 3 at no point of time completed 240 working days within 12 months and thus, he neither entitled for notice nor compensation as required under act - held, documents which could show continuous employment of respondent no. 3 are in possession of management - management did not produce relevant documents before tribunal to disprove case of respondent no. 3 - on the other hand, reference was made to some documentary evidence on behalf of management to show that respondent no. 3 worked in different spells at different places which is less than 240 days - if a claim is made, it is duty of person to prove the same - but in case where workman claims to be in continuous service and also claims that was paid wages for period he worked, he cannot produce any further material in proving of such claim excepting making averment - documents relating to payment of wages in case of casual employees remained with management-employer and therefore, it is the duty of employer to produce all records to arrive at just decision - as documents were not produced by management, claim of petitioner could not be sustained - accordingly, writ application dismissed - state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 3 bad put in 177 days of work but was paid wages for 234 days including wages for holidays and sundays during the entire period of engagement and was retrenched from service w. after failure of the conciliation reference was made to the labour court. 4. learned counsel for the petitioner submitted that the evidence on record clearly prove that the opposite party no. 3 had also completed 240 working days in the year 1987, 1988 as well as in 1989 therefore, refusal of employment which amounted to termination/retrenchment is illegal as admittedly neither any notice was given to the opposite party no. this observation of the presiding officer, labour court has been challengedby the learned counsel for the petitioner stating that the evidence adduced in the proceeding clearly indicates that the opposite party no.l. mohapatra, j.1. the award passed by the presiding officer, labour court, bhubaneswar holding refusal employment to the opposite party no. 3 as illegal and unjustified and directing reinstatement of the opposite patty no. 3 to the post of typist with all benefits of continuity of service and full back wages is under challenge before this court.2. case of the petitioner is that the opposite patty no. 3 was engaged in different spells from 11-1-87 to 15-11-89 atbhawanipatna, jeypore and rayagada on daily wage basis. the opposite party no. 3 bad put in 177 days of work but was paid wages for 234 days including wages for holidays and sundays during the entire period of engagement and was retrenched from service w.e.f. 14-11-89. dispute raised by opposite party no. 3 was referred to the labour court, bhubaneswar and the presiding officer, labour court by the impugned award held that the refusal of employment to opposite party no, 3 is neither legal nor justified and further directed reinstatement of opposite party no. 3 in service with benefit of continuity of service and full back wages. said award of the labour court is challenged on the ground that at no point of time the opposite party no. 3 had completed 240 working days and therefore termination of services of the opposite party no. 3 by way of refusal of employment with effect from 15-11-89 by the divisional manager of the petitioner-corporation is legal and justified.3. the reference made to the labour court runs as follows :'whether the termination of services of sri pravat kumar mohanty, by way of refusal of employment with effect from 15-11-39 by the divisional manager m/s o.f. d.c. limited, rayagada bamboo division, rayagada, koraput is legal and/or justified if not what relief the workman is entitled to ?'the claim of the opposite party no. 3 before the labour court is that he was appointed in the corporation, after being selected by the managing director as a typist, on 11-1-1987 at bhawanipatna. while continuing as such he was transferred to jaypore division of the corporation and again he was transferred to rayagada and worked up to 15-11-89. on 15-11-89 his services were terminated by the authority. though no order of termination was passed, the opposite party no. 3 refused further employment without assigning any reason. the opposite party no. 3 demanded to disclose the reasons for termination by way of refusal of employment, but no communication was made to him indicating the reasons why he was not allowed to work any further. oppositeparty no. 3 being a workman raised a dispute and conciliation was held. after failure of the conciliation reference was made to the labour court. case of the opposite party no. 3 before the labour court is that he was a workman and refusal of employment was neither legal nor justified as mandatory provisions of the industrial disputes act had not been followed. further case of the opposite party no. 3 is that the workmen who are junior to him have been allowed to continue in employment of the corporation and the opposite party no. 3 has been victimised.in the written statement filed on behalf of the corporation it is stated that the opposite party no. 3 was engaged on casual basis for the period from 15-3-1989 to 14-11-89 and that the opposite party no. 3 did not work for continuous period of one year so as to attract the provisions for prior notice or compensation as per the industrial disputes act. it is also stated that the opposite party no. 3 worked from 15-3-89 to 14-11-89 as a casual typist on a consolidated wage of rs. 530/- per month. though he actually worked for 177 days he was paid for 234 days including holidays and sundays. the opposite party no. 3 having not worked for 240 days as required under the provisions of the industrial disputes act, he was not entitled to either notice or compensation for refusal of further engagement.the labour court, bhubaneswar found that the opposite party no. 3 had put in 240 working days and held that refusal of employment was neither legal nor justified and directed reinstatement of the opposite party no. 3 in the post of typist and for grant of all benefits of continuity of service and back wages.4. learned counsel for the petitioner submitted that the evidence on record clearly prove that the opposite party no. 3 at no point of time had completed 240 working days within 12 months preceeding date of termination/refusal of further employment and therefore he is neither entitled for notice nor compensation as required under the provisions of the industrial disputes act. he further submitted that the presiding officer, labour court calculated the working days to be 240 days without any basis and illegally answered the reference in favour of theopposite party no. 3. he further submitted that from the records it is evident that the opposite party no. 3 had put in 177 days of work as against which he had been paid wages for 234 days, which includes wages paid on holidays and sundays and therefore the opposite party no. 3 having not completed 240 days he was not entitled to any notice or retrenchment benefits.shri das, learned counsel for the opposite party no. 3, on the other hand, submitted that the opposite party no. 3 had been continuously engaged from 11-1-87 till 15-11-89 in three different places and was in continuous service for the aforesaid period. apart from the said fact, the opposite party no. 3 had also completed 240 working days in the year 1987, 1988 as well as in 1989 therefore, refusal of employment which amounted to termination/retrenchment is illegal as admittedly neither any notice was given to the opposite party no. 3 nor any compensation was paid.5. the labour court in paras 9 and 10 of the award has held that as admitted by the management-petitioner the opposite party no. 3 had at least worked for 234 days. so far as balance period of 12 or 13 days are concerned, the presiding officer was of the view that section 25b of the industrial disputes act introduces a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purpose of chapter-v. the section provides a deeming fiction where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of reasons enumerated in the said section. relying on the evidence of m. w. 4 the presiding officer observed that the opposite party no. 3 remained absent on two to three occassions for about 6 to 7 days. said evidence of m. w. no. 4 did not have support of documentary evidence and there was cessation of work which was not due to any fault of the workman-opposite party no. 3. therefore, the interruption has to be ignored and the workman-opposite party no. 3 has to be treated to be in uninterrupted service and calculated the period of engagement to be 240 days of continuous service. this observation of the presiding officer, labour court has been challengedby the learned counsel for the petitioner stating that the evidence adduced in the proceeding clearly indicates that the opposite party no. 3 worked at rayagada from 15-3-89 till 15-11-89 and the entire period is less than 240 days and also includes sundays and holidays. therefore, there was no scope left for the presiding officer to add any further working days as has been done and therefore finding is based on no material.6. before examining the contention raised by the learned counsel for the petitioner, it is necessary to refer to the evidence adduced in course of the proceeding. the workman-opposite party no. 3 in his evidence has categorically stated that he joined as typist on 11-1-87 at bhawanipatna and was transferred to jeypore division. from jeypore again he was transferred to rayagada where he was worked upto 15-11-89. in cross-examination, he has stated that he received wages from 11-1-87 to 20-4-88 at bhawanipatna, but documents were not filed on behalf of the management. he has further stated that he joined at jeypore on 21-4-1988 on transfer and worked at jeypore till 13-3-1989. he has also stated that for the aforesaid period at jeypore he had received payment on vouchers. thereafter, he was transferred to rayagada and joined thereon 15-3-89 and was getting consolidated wage of rs. 530/- per month till 15-11-89 whereafter he was not allowed to work. in spite of lengthy cross-examination no material has been brought out to indicate that the workman-opposite party no. 3 did not work continuously from 11-1-87 till 15-11-89. on the other hand, witness no. 2 examined on behalf of the management-petitioner in his evidence admitted that the opposite party no. 3 was engaged at bhawanipatna from 14-1-87 to. 11-3-87, witness no. 3 for the management stated that the opposite party no. 3 worked at jeypore from 21-4-88 to 15-10-88. witness no. 4 for the management also stated that the opposite party no. 3 worked at rayagada from 15-3-89 to 15-11-89.7. so far as the claim of continuous engagement made by the opposite party no. 3 is concerned, documents which could go to show his continuous employment are in possession of the management. the management did not produce the relevantdocuments before the tribunal to disprove case of the opposite party no. 3. on the other hand, reference was made to some documentary evidence on behalf of the management to show that the opposite party no. 3 worked in different spells at different places which is less than 240 days. if a claim is made, it is the duty of the person to prove the claim. but in a case where workman claims to be in continuous service and also claims that he was paid wages for the period he worked, he cannot produce any further material in proving of such claim excepting making an averment. documents relating to payment of wages in case of casual employees remained with the management-employer and therefore it is the duty of the employer to produce all records to arrive at a just decision.in this connection, reference is made to a decision of the apex court reported in 1985 lab. i c. 1733 (h. d. singh v. reserve bank of india and others). in the decision cited above, the workman claimed to have worked for more than 240 days and further claimed that the employer tampered with the records. to disprove the workman's case the employer-reserve bank of india did not produce records. the workman wanted the relevant records to be filed, but the employer did not produce the same. under the circumstances, the apex court held that in absence of any evidence to the contrary, claim of the workman is to be accepted. the learned counsel for the petitioner submitted that inspite of prayer made by the opposite party no. 3 the records indicating payment made to the opposite party no. 3 for the entire period were not produced. from the award also it appears that documents relating to payment of wages for the period the opposite party no. 3 worked at bhawanipatna and jeypore were not produced. the witness examined on behalf of the petitioner only stated about the period for which the opposite party no. 3 worked at the above two places. since records were not produced by petitioner which was in possession of the same showing payment made to the opposite party no. 3 at bhawanipatna and jeypore, the case of the workman opposite party no. 3 has to be accepted that he was in continuous employment from 11-1-87 to 15-11-89.8. the present opposite party no. 3 has filed another writ application bearing o. j. c. no. 9414/98, wherein a document has been filed which is a letter written by the divisional manager, rayagada commercial division to the chief personnel officer, o. f. d. c. ltd., bhubaneswar. in the said letter (annexure-2 to the said writ application) it is mentioned that the opposite party no. 3 (typist) first joined at bhawanipatna (c) division on 11-1-87 and worked up to 20-4-88, then worked at jeypore (c) division from 21-4-88 to 13-3-89 and lastly he come to rayagada commercial division and joined on 15-3-89.therefore, i do not find any reason to interfere with the award passed by the presiding officer, labour court, and accordingly, the writ application is devoid of any merit and is dismissed.9. writ application dismissed.