JUDGMENT
Dipak Misra and S.R. Waghmare, JJ.
1. Though this matter was listed for orders on consent of learned Counsel for the parties it is taken up for final hearing.
We have heard Mr. Anoop Shrivastava, learned Counsel for the appellant and Mr. Alok Pathak, learned Government advocate for the respondents No. 1 and 2.
2. Learned Counsel for the appellant submitted that the learned single Judge has erroneously fixed the onus. It is also urged by him that in a recent decision rendered in Sriram Industrial Enterprises Ltd. v. Mahak Singh and Ors. their Lordships have held otherwise than what had been held in the case of Range Forest Officer v. S.T. Hadimani .
Mr. Alok Pathak, learned Government advocate supported the order passed by the learned single Judge.
2. In the case of Sriram Industrial Enterprises Ltd. (supra) the Apex Court referred to the case of Range Forest Officer (supra) and eventually in paragraph 34 held as under:
34. Having correctly interpreted the provisions of Section 6N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the attendance registers and the muster rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer case were watered down by the subsequent decision in R.M. Yellatti v. Assistant Executive Engineer 2006-I-LLJ-442 (SC) case and in our view the workmen had discharged their initial onus by production of the documents in their possession.
3. In this context we may refer with profit to the decision rendered in R.M. Yellatti v. Assistant Executive Engineer . In the: aforesaid decision the three Judge Bench of the Apex Court has expressed the opinion that under Sections 25F, 25B, 11 and 10 of the Industrial Disputes Act, 1947 continuous service of 240 days is the requirement and that burden of proof lies on workman. It is for workman to adduce cogent evidence, both oral and documentary. Mere affidavits or self serving statements made by the workman will not suffice. Referring to several decisions of the Apex Court eventually in paragraph 17 their Lordships have expressed the opinion as under 2006-I-LLJ-442 at p. 448:
17. Analysing the above decision 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 wage earners, there will be no letter of appointment of termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the 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 adverse inference ultimately would depend thereafter on the 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 adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely that the High 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 the facts of each case.
4. In view of the aforesaid enunciation of law we are of the considered opinion that the order passed by the learned single Judge is unsustainable and hence we set aside the same. The matter is remanded to the Labour Court for fresh adjudication in view of the law laid down in the cases of Sriram Industrial Enterprises Ltd. (supra) and R.M. Yellatti (supra). The Labour Court shall decide the lis within six months from the date of production of this order before the Labour Court.
5. To cut short the delay it is directed that the appellant and the respondent or their legal representative shall appear before the said authority on September 17, 2007.
6. The writ appeal is allowed to the extent indicated hereinabove. There shall be no order as to costs. C.C. as per rules.