REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7463 OF 2009
(Arising out of SLP(C) No. 14117 of 2008)
Director, Fisheries Terminal Division ..........Appellant
Versus
Bhikubhai Meghajibhai Chavda .......Respondent
JUDGMENT
H.L. Dattu,J.
Leave granted.
2) This is an appeal against the judgment and order of the Gujarat High
Court in S.C.A. No. 29355 of 2007 dated 30.11.2007. By the
impugned judgment, the court has affirmed the award passed by the
labour court, Junagadh, in Reference Case No. 192 of 1995 dated 14th
May, 2007, wherein and whereunder the labour court has directed the
employer to reinstate the workman into service with 20% back wages.
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3) The facts in brief are : The Fisheries Terminal Department;
(`F.T.D.’ for short), the appellant herein, had come into existence
sometime in the year 1976. The activities of F.T.D. inter alia
consisted of providing landing facilities for catching fish in a clean
and hygienic condition and for that purpose, services of daily wage
workmen were utilized as and when it was needed. While this
practice was going on, the State Government by its order dated
17.10.1988, directed all the departments of the State Government
to discontinue the practice of engaging the services of daily wage
workmen and in lieu of it to hire labourers on contractual basis.
4) The claim of the workman before the labour court was that he was
employed by the appellant on 1.12.1985 as watchman and he was
paid daily wages and his presence was also marked in the muster
roll. It was further stated, that, his services were terminated
without giving notice and without complying with the provisions
of Industrial Disputes Act. The stand of the appellant before the
labour court was that, the workman was employed on daily wage
basis in the year 1986 and the workman had worked till 1988 and
in all these years, the workman had worked for 93 days, 145 days
and 31 days respectively, and thereby the workman had not
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worked for more than 240 days in any preceding year. It was also
there plea, that, the appellant is a seasonal industry and, therefore,
provisions under Section 25F of Industrial Disputes Act is not
attracted.
5) The labour court on consideration of the oral and documentary
evidence, has concluded that the appellant is an industry, since
there is no evidence to show that the appropriate government had
declared the appellant as a seasonal industry or the work is
performed intermittently. It has also observed, that, the appellant
has not produced any documentary evidence to show that the
workman had not completed 240 days in the preceding year and
was not in service till 1991 and, therefore, adverse inference
requires to be drawn that the workman has completed continuous
service of 240 days and, accordingly, has concluded that the
appellant-employer could not have retrenched the services of the
workman without complying with the provisions of Industrial
Disputes Act. In view of the aforesaid finding and the conclusion
reached, the labour court had directed the appellant to reinstate the
respondent with 20% back wages for the period when the
respondent was kept out of service.
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6) The award passed by the labour court was challenged by the
appellant before the High Court. The High Court has endorsed the
award passed by the labour court, on the ground that the labour
court has rightly come to the conclusion that the appellant has not
established by leading cogent evidence that the appellant is not a
seasonal industry. It is also observed, that, once it has come in
evidence that the workman has completed 240 days of service in
the preceding year, then the initial burden is shifted on the
employer to rebut the oral evidence of the workman by producing
relevant oral and documentary evidence and since the appellant
failed to produce the same before the labour court, it was justified
in concluding that the workman had completed continuous service
of 240 days during the preceding year and accordingly had
dismissed the writ petition filed by the appellant.
7) Being aggrieved by the judgment and order passed by the High
Court, the appellant is before us in this appeal.
8) The learned counsel for the appellant submitted, that, the appellant
industry is seasonal in nature and, the respondent was employed on
a purely temporary basis and, therefore, the onus lies on the
respondent/workman to prove that he had in fact worked for 240
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days in the preceding year. It is further submitted that the claim of
the workman was time barred and, therefore, the labour court
ought not to have entertained the claim made by the workman,
since the workman had approached the labour court nearly after
eight years from the date he was supposed to have been terminated
from service by the employer.
9) Per contra, the learned counsel for the respondent submitted that
the workman immediately after his services were terminated by the
employer, had approached the conciliation officer and on failure of
the conciliation proceedings, had approached the State government
to make reference of the dispute for adjudication before the labour
court and, therefore, it cannot be said that the workman had
approached the labour court after a long lapse of time. It is further
submitted, that, the workman in his evidence, categorically had
made statement before the labour court that he had worked for
more than 240 days in a preceding year and, since that evidence is
not rebutted by the employer by producing the relevant oral and
documentary evidence which would be in their possession, the
labour court was justified in drawing adverse inference against the
employer. It was further submitted, that, since the appellant failed
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to prove before the labour court by producing necessary evidence
that the appellant industry is seasonal in nature, the labour court
has not committed any error whatsoever, to accept the oral
assertion made by the appellant before the labour court. It is
further submitted, since the findings of the labour court cannot be
said as perverse findings or based on no evidence, the High Court
was justified in declining to interfere with the findings of fact by
the labour court in a petition filed under Article 227 of the
Constitution of India.
10) From the facts as set out herein above and the submissions made
by the learned counsel for the parties, the question that requires to
be decided whether the labour court and the High Court was
justified in allowing the claim of the workman. It is not the case of
the appellant that it is not an industry as defined under Section 2(J)
of the Act, but it was its specific stand before the labour court and
also the High Court that it is only a seasonal industry and employ
workman like the respondent only during fishing season and are
relieved at the end of the season and, therefore, the labour court
and the High Court were not justified in not only directing the
reinstatement of workman into service but also the payment of
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back wages. This submission of the learned counsel in the appeal
requires to be answered with reference to Section 25A of Industrial
Disputes Act. The Section is as under:
“25A. Application of sections 25C to 25E.-(1)
Sections 25C to 25E inclusive [shall not apply to
industrial establishments to which Chapter VB
applies, or–] (a) to industrial establishments in
which less than fifty workmen on an average per
working day have been employed in the preceding
calendar month; or (b) to industrial establishments
which are of a seasonal character or in which work
is performed only intermittently.
(2) If a question arises whether an industrial
establishment is of a seasonal character or whether
work is performed therein only intermittently, the
decision of the appropriate Government thereon
shall be final.”
11) It is now well settled by several judgments of this court, that,
where a workman is employed for a seasonal work or temporary
period, the workman cannot be said to be retrenched in view of
Section 2(00)(bb). It is relevant to take note of what is stated by
this court in the case of Morinda Co-operative Sugar Mills Ltd. vs.
Ram Kishan (1995) 5 SCC 653, it was stated by this court :
“….that since the work done by the respondents is
only a seasonal work, the respondents cannot be said
to have been retrenched in view of what is stated in
sub clause (bb) of Section 2(00) of the Act.”
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12) In the normal course, it is the decision of the appropriate
Government which is final in determination whether the said
industry is seasonal in nature. As has been observed by the labour
court and the High Court, there has been nothing brought on record
by the appellants to support their contention that fisheries is a
seasonal industry. There has been no order from the Government
which has been produced by the appellants to state that the
fisheries industry is seasonal. There has been no mention of any
decision on the part of the appropriate Government with regard to
declaring fisheries as a seasonal industry. Therefore, we concur
with the finding of the labour court wherein they have concluded
that the appellant cannot be classified as a seasonal industry.
13) The next contention of the learned counsel for the appellant is that
the respondent had not worked for 240 days during the preceding
twelve months on daily wages and, therefore, the respondent
cannot claim any protection under the provisions of Industrial
Disputes Act, 1947. The case of the respondent before the labour
court was that as he had completed working for more than 240
days in a year, the purported order of retrenchment is illegal, as
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conditions precedent as contained in Section 25F of the Industrial
Disputes Act, 1947 were not complied with.
14) Section 25B of the Act defines “continuous service”. In terms of
Sub section (2) of Section 25B that if a workman during a period
of twelve calendar months preceding the date with reference to
which calculation is to be made, has actually worked under the
employer 240 days within a period of one year, he will be deemed
to be in continuous service. The respondent claims he was
employed in the year 1985 as a watchman and his services were
retrenched in the year 1991 and during the period between 1985 to
1991, he had worked for a period of more than 240 days. The
burden of proof is on the respondent to show that he had worked
for 240 days in preceding twelve months prior to his alleged
retrenchment. The law on this issue appears to be now well
settled. This court in the case of R.M. Yellatty vs. Assistant
Executive Engineer [(2006) 1 SCC 106], has observed :
“However, applying general principles and on
reading the aforesaid 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 up in the witness box. This burden is
discharged upon the workman adducing cogent9
evidence, both oral and documentary. In cases of
termination of services of daily-waged earners,
there will be no letter of appointment of
termination. There will also be no receipt of 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 of
termination, if any, the wage register, the
attendance register, etc. Drawing of adverse
inference ultimately would depend thereafter on
the facts of each case.”
15) Applying the principles laid down in the above case by this court,
the evidence produced by the appellants has not been consistent.
The appellants claim that the respondent did not work for 240
days. The respondent was a workman hired on a daily wage basis.
So it is obvious, as this court pointed out in the above case that he
would have difficulty in having access to all the official
documents, muster rolls etc. in connection with his service. He has
come forward and deposed, so in our opinion the burden of proof
shifts to the employer/appellants to prove that he did not complete
240 days of service in the requisite period to constitute continuous
service. It is the contention of the appellant that the services of the
respondent were terminated in 1988. The witness produced by the
appellant stated that the respondent stopped coming to work from
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February, 1988. The documentary evidence produced by the
appellant is contradictory to this fact as it shows that the
respondent was working during February, 1989 also. It has also
been observed by the High Court that the muster roll for 1986-87
was not completely produced. The appellants have inexplicably
failed to produce the complete records and muster rolls from 1985
to 1991, inspite of the direction issued by the labour court to
produce the same. In fact there has been practically no challenge to
the deposition of the respondent during cross-examination. In this
regard, it would be pertinent to mention the observation of three
judge bench of this court in the case of Municipal Corporation,
Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is
observed:
“A Court of Law even in a case where provisions
of the Indian Evidence Act apply, may presume or
may not presume that if a party despite possession
of the best evidence had not produced the same, it
would have gone against this contentions. The
matter, however, would be different where despite
direction by a court the evidence is withheld.”
16) It is not in dispute that the respondent’s service was terminated
without complying with the provisions of Section 25F of Industrial
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Disputes Act. Section 25G of the Act provides for the procedure
for retrenchment. The section reads-
“25G. Procedure for retrenchment.- Where any
workman in an industrial establishment, who is a
citizen of India, is to be retrenched and he belongs
to a particular category of workmen in that
establishment, in the absence of any agreement
between the employer and the workman in this
behalf, the employer shall ordinarily retrench the
workman who was the last person to be employed
in that category, unless for reasons to be recorded
the employer retrenches any other workman.”
The labour court based on the pleadings and evidence on record
has come to the conclusion that the services of some of the
employees junior to the respondent was continued after the
respondent was discharged from its duties. The dates of joining of
some of the fellow employees of the respondent like Mohanbhai,
Kalubhai and Nanjibhai were not produced by the appellants. The
appellants have clearly failed to prove that the services of no junior
employee was continued when the services of the respondent was
terminated. Thus, the procedure laid down in Section 25G has also
not been followed. The findings on facts by the labour cannot be
termed as perverse and need no interference.
17) It is also the case of the appellants that there is unexplained delay
in approaching the labour court in adjudicating the imaginary
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grievance by the respondent-workman. In our view, there is no
merit in this contention. The workman had approached the
Conciliation Officer for resolving the dispute between the
employer and the employee and it is only when the conciliation
proceedings failed that the matter was referred to the labour court
for final adjudication.
18) In view of the above discussion, we do not see any good ground to
interfere with the impugned order. Accordingly, appeal requires to
be dismissed and it is dismissed. No order as to costs.
…………………………………J.
[ TARUN CHATTERJEE ]
…………………………………J.
[ H.L. DATTU ]
New Delhi,
November 09, 2009.
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