JUDGMENT
Bharati Sapru, J.
1. The petitioner in the present writ petition is the U.P. Power Corporation Limited, which is a company incorporated UP Or the Companies Act, 1956. The petitioners have filed the present writ petition being aggrieved by an award of the Labour Court dated 30.3.2000 passed in adjudication case No. 3/89 by which the Labour Court has reinstated 19 workmen with full back wages.
2. I have heard learned Counsel for the petitioner Sri Ranjit Saxena and Sri I.P. Srivastava for the respondents and have perused the material, pleadings and evidence which are on record of the case.
3. The facts of the case are that the respondent workmen raised a claim before the Labour Court that their services have been wrongly terminated. A reference was made by the State Government in respect of 46 workmen on 30.6.1986 the claim as raised by the workmen was that their services have been wrongly terminated and in violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act. The order of reference is on record arising out of conciliation being C.B. case No. 88 of 1986. The order of reference reads as hereinbelow:
KYA SEVAYOJKO DWARA PARISISTH MAIN ANKIT 46 SHRAMIKO KI UNKE NAM KE SAMAKSH TITHIYO SE SEVAIYA SAMAPAT KIYA JANA UCHIT TATHA/ATHWA VAIDHANIK HAI ? YADI NAIN, TO SAMBANDHIT SHRAMIK KYA LAB/ANUTOSH (RELIEF) PANE KA ADHIKARI HAI, TATHA ANYA KIN VIVRANO SAHIT?
4. The workmen filed their written statement before the Labour Court and in para 5 of the written statement, they stated that the workmen who were in the accompanying list had completed 240 days of service in the U.P. Power Corporation Limited (hereinafter referred to as the Corporation). In para 6 thereafter they mentioned that their services had been brought to an end from the dates mentioned in the list without giving him any compensation as contemplated under the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. The respondent workmen also stated that although their services have been brought to an end, the workmen who were junior to them had been retained in service. This they stated was unfair and illegal and therefore were entitled to be reinstated in service.
5. The petitioner corporation also filed its written statement by which it stated that the respondent; workmen mentioned at serial No. 1 to 15 as mentioned in the list had been retrenched had been paid retrenchment compensation at the relevant time.
6. The petitioner corporation also stated that the workmen mentioned in the list given along with reference had never completed 240 days and for this reason they are not entitled to be reinstated. The respondent workmen filed their rejoinder statement and countered the statement made by the petitioner and stated that the respondent workmen at serial No. 1 to 15 had not worked only upto 1975-76 but in fact had continued to work till the year 1978-79 and also stated that some of the workmen had completed more than 240 days service after the order 1975-76. They disputed the averments made by the petitioner in the written statement before the Labour Court. The petitioner had filed rejoinder statement in which they denied that the workmen have continued to work after 1975-76.
7. It is stated in the writ petition that on 11.7.1990 a compromise was signed between the Union as well as the management by which a compromise was reached between the parties. It was agreed by the compromise that those muster roll employees who had completed more than 240 days in a calendar year, would be regularised against their vacancies and if they were not regularised then they would be allowed to continue as muster roll employees in the Gorakhpur Region. A copy of compromise deed is annexed as Annexure 6.
8. Apart from the pleadings, the respondent workmen had filed evidences on their behalf. These evidences are on record as Annexure 7, 8, 9 and 10 of the writ petition. In all those evidences, the workmen came to give evidence on their behalf and stated that they had worked for various periods in the corporation. For instance, the workman Vinod Kumar Srivastava whose evidence is appended as Annexure 7 to the writ petition gave evidence that he had worked regularly as muster roll employee from 1.8.1972 to 31.12.1978. He had also stated that he had been retrenched on 31.12.1978 without giving to prior notice and without giving him any compensation. He stated that many other employees who were on the muster roll had been regularised and some of them who were regularised were junior to him.
9. The reason for discharging his services is stated because he was one of the members of the Union who had demonstrated that all persons who had worked beyond the period of three years, should be regularised. He also stated that ever since he had been discharged, he was without work.
10. Another workman Sri Jai Ram had also came and stated that he had worked between 1974 to 1981 regularly and had been retrenched without due compliance of the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. At first he stated that he had been appointed on regular basis. He however stated that he did not have any paper to show that his appointment was regular. He also stated on oath that he was given no letter of appointment and he had never received anything other than his salary. He also stated that power unit had been closed down. There is evidence of two or three workmen, which are on record in which similar statements had been made.
11. In order to establish their case before the Labour Court, the petitioner had filed application dated 24.7.1991 before the Presiding Officer stating that all disputes between the parties had to come to an end in view of the compromise, which had reached between parties.
12. The petitioner corporation thereafter sent another reminder to the Labour Court on 13.9.1991 claiming that the compromise was effective between the parties and no dispute was left. Union had opposed this application by way of the objection dated 13.8.1991. Because this matter was being disputed inter parties, the Labour Court decided the issue of the compromise and passed an order on 4.4.1992 by which controversy set at rest and held that that the petitioner corporation would not get any advantage of the compromise because it was not registered compromise.
13. In order to further establish their case, the petitioners adduced evidence through one Tarkeshwar Rai and his evidence is appended as Annexure 17 to the writ petition. He stated that the parties had entered into a compromise by way of which all workmen who had worked for more than 240 days had been regularised and nobody was left for being regularised. The petitioner had also adduced evidence through one Harish Chand Mishra, Executive Engineer, who adduced evidence on behalf of the petitioner and stated that those workmen who had completed 240 days of the continuous service had been regularised under the terms of the compromise. He also stated that power house had been closed.
14. Other than this on behalf of the petitioner, there is no pleading by the petitioner corporation that the power house had been closed. One of the workmen in his statement had accepted the fact that the power house had been closed.
15. Learned Counsel for the petitioner corporation Sri Ranjit Saxena has very strenuously argued that the power corporation is a public corporation and is a Government Corporation and therefore does not function like a private organization. He has argued that every appointment made by the power corporation is subject to audit checks with regard to the payment made and therefore the claim of the respondent workmen that they were workmen as regular employees or that they had worked for more than 240 days itself cannot be accepted, in view of the fact that there was no evidence in their support to establish this fact. He argued that all payments, which are due, are made through payment slips and no amount is paid without a payment slip to anybody who works with the petitioner.
16. Learned Counsel for the petitioner has raised three main arguments. The first argument is on burden of proof; the second argument is on the delay in raising reference and the third argument is on the ground of relief of full back wages to the workmen.
17. Learned Counsel for the petitioners has argued that it is settled law that burden of proof to establish the claim is on the person who raises the claim. His contention is that the respondent workmen had claimed that they worked for more than 240 days and therefore in view of the fact that; they were entitled to the protection of Section 6-N of the Act and failure to comply with the provisions of Section 6-N of the Act would necessarily entail to them to grant of the relief in the shape of the reinstatement with back wages.
18. Learned Counsel for the petitioner argued that other than the fact that the respondent workmen came forward to give statement that they had worked for more than 240 days. They had no other evidence to establish that they had indeed worked for more than 240 days.
19. Learned Counsel for the petitioner has argued that even though strict rules of evidence burden of proof arc not required to be given in the matters relating to industrial dispute but there is a bare minimum which was to be observed. The burden has to be discharged by the workmen not only by stepping into the witness box but by adducing cogent evidence both oral as well as documentary.
20. In support of his his argument that the workmen had failed to discharge the burden of proof, which lay on them, the learned Counsel for the petitioner has cited catena of judgments which are listed hereinbelow:
(1) Surendranagar Panchayat and Anr. v. Jethabhai Pitamber Bhai reported in LLJ 2006 (1) 268;
(2) Surendranagar District Panchayat v. Dahyabhai Amar Singh reported in LLJ 2006 (1) 424;
(3) Surendranagar District Panchayat and Anr. v. Gnagaben Laljibhai and Ors. reported in JT 2006 (6) 64;
(4) Municipal Council Sujanpur v. Surinder Kumar reported in LLJ 2006 (2) 768;
(5) Employees in relation to Management v. Their Workmen represented by reported in (2006) 1 UPLBEC 792;
(6) Haryana Urban Development Authority v. Om Pal reported in JT 2007 (5) 560;
(7) Range Forest Officer v. S.T. Hadimani
21. The next argument of the learned Counsel for the petitioner was that the workmen concerned had been removed way back in the year 1975-76 and had not worked after that therefore he said that the workmen had committed an inordinate delay in approaching the Labour Court for redressal of their grievance, on account of the fact that claim of the respondent workmen was highly belated, he argued that that they were not entitled to get any benefit because the delay itself defeated their claim. The reason being, he argued that when such inordinate delay is made, then it became impossible for the Labour Court to adjudicate the claim because firstly the dispute became stale and secondly the delay makes it impossible for the petitioner to maintain records for such a long period and therefore the delay becomes fatal to the decision in the case. He further argued that because of the delay, the relief, which is to be given to the workmen also becomes impossible because the position changes drastically when long years intervene between the actual date of the claim and the raising of the claim. In this particular case, the learned Counsel for the petitioner has argued that whereas the workmen had ceased to work in the year 1975-76, they raised the claim after so many years and the matter went in conciliation in the year 1986 and that period of ten years had already passed and the project on which they claim to have worked, has also come to an end and therefore very determination of the claim as raised by the respondent workmen was hopelessly affected by delay.
22. Learned Counsel for the petitioner relied in the case of the Assistant Executive Engineer, Karnataka v. Shivalinga reported in 2002 (1) AWC 394 (SC), Wherein the Supreme Court came to the conclusion that it would not be justified in granting relief of the reinstatement where is a delay of more than 9 years in approaching the Labour Court. Other than this, the learned Counsel for the petitioner has cited the below-noted judgments:
(i) U.P. State Electricity Board v. P.O. Labour Court reported in 1998 (78) FLR 511;
(ii) U.P. State Transport Corporation Ltd., v. Man Singh reported in 2006 (111) FLR 323 (SC);
(iii) Indian Institute of Technology v. State of U.P. and Ors. reported in 2006 (111) FLR 920;
(iv) Krishi Utpadan Mandi Samity v. Pahal Singh reported in JT 2007 (5) SC 556;
(v) Manager (now Regional Director) R.B.I. v. Gopinath Sharma reported in JT 2006 (6) SC 394;
(vi) Haryana State Co-op. Land Development Bank v. Neelam reported in (2005) 2 UPLBEC 2044;
(vii) Karnataka Power Corporation Ltd. v. K. Thangappan and Anr. ;
23. The third limb of the argument of the learned Counsel for the petitioner was that the more than 25 years have passed since cessation of any alleged relationship between the petitioner and the respondent workmen and the project on which the respondent workmen was working had already been closed, therefore it was impossible for the petitioner corporation to reinstate the workmen after a period of so many years.
24. Learned Counsel for the petitioner argued that previously the power corporation was working as a power house, which worked on the old system of power house, which used coal to generate electricity and now modern system of grid supply has been evolved and therefore the project where persons such as respondents had been engaged on muster rolls, had been closed.
25. Learned Counsel for the petitioner has next argued that this factum was also brought to the notice of the Labour Court in the evidence of Harish Chandra Mishra who appeared on behalf of the power corporation before it. In his evidence dated 6.1.2000, Harish Chandra Mishra has stated that now no power project is running on coal. As such power corporation is not in a position to accommodate any workmen in its employment.
26. Learned Counsel for the petitioner has argued that the relief of reinstatement and back wages, which have been granted by the Labour Court in the impugned award is not justified at all.
27. Learned Counsel for the petitioner further argued that for a long period of more than 25 years, the respondent workmen No. 19 had never been in the employment of the petitioner and had not performed any work at all and therefore were also not entitled to any back wages for this reason.
28. Learned Counsel for the petitioner in support of the third limb of the argument has cited the belownoted decisions:
1. State of Haryana v. Dilbagh Singh ;
2. U.P.S.R.T.C. v. Mitthu Singh reported ;
3. Punjab State Electricity Board v. Darbara Singh ;
4. State of M.P. v. Arjunlal Rajak reported in JT 2006 (3) SC 56;
29. Learned Counsel for the respondent workmen has argued that the award of the Labour Court is wholly fair and justified and has been passed by the Labour Court after giving proper consideration to the facts and circumstances of the case.
30. Learned Counsel for the respondent workmen Sri I.N. Singh has argued that all the workmen came and filed evidence before the Labour Court in which they averred that they have worked more than 240 days and their averment before the Labour Court were controverted by the employer.
31. Learned Counsel for the respondent workmen has placed reliance on a decision of the Hon’ble Supreme Court in the case of Hindustan Motors Ltd. v. Tapan Kumar I Bhattacharya and Anr. and brought to the notice of the Court that in this case, the matter had been kept pending for 22 long years, the Supreme Court thought it appropriate to reduce the quantum of back wages to 50%.
32. Learned Counsel for the petitioner has very strenuously opposed this argument and stated that in the present case, the respondent workmen had failed to establish the factum of the relationship itself and therefore they were not entitled to any relief.
33. I have given anxious consideration to the facts and circumstances of the present case. The first plea, in my opinion, as raised by the petitioner has substance. It is well settled law that ‘burden of proof lies on the person who raises claim and although in industrial dispute, the ‘standard of proof which is required is not in strict compliance with rules of evidence under the Evidence Act, yet a minimum requirement has been recommended in several cases as settled by the Hon’ble Supreme Court.
34. The position which emerges from the record is that the workmen concerned came before the Labour Court and gave their deposition on oath that they had worked for more than 240 days. The statements which are on record do not reflect from the statement of anyone of the workmen that they have been able to establish that they had worked for 240 days in any particular given year. No specific averment had been made by any workman in this behalf, which would fulfill the requirement of the term “continuous service” as defined under Section 2 (g) of the Act. To cite an example, the statement of Vinod Kumar Srivastava is on record as Annexure 7 to the writ petition, in which a statement is recorded that he worked as muster roll employee regularly from 1.8.1972 to 31.12.1978. This is a bald statement and does not specify in which given year, he had completed 240 days of work. In support of this argument, the workmen did not produce any payment slip, wage slip or any other document or even identity card to show that he was working in the appointed work place.
35. The Labour Court while discussing the matter with regard to proof has simply stated that workmen had come forward and stated that they had completed 240 days of service and because the list which was appended to the order of reference, had not been accepted by the respondent, the claim is establish.
36. On the other hand while examining the issue of burden of proof, the Labour Court in his award has discussed evidence of both EW-1 and EW-2 who appeared on behalf of the petitioner concerned. While discussing their evidence, the Labour Court has come down very heavily on the evidence adduced by the employer and has said that they could not establish on the fact that the workmen had worked for 240 days are not on the basis of any record and in fact has recorded that they have stated before the Labour Court that they had not recorded any pleadings to this effect and, they had not brought any record while discussing evidence of Sri Harish Chandra Srivastava. The Labour Court has recorded that he was not able to make the averment that from which particular date the respondent workmen had not worked 240 days. In so far as the averment was concerned with regard to the closure of project, the Labour Court commanded that because it had not been pleaded by the employer, they had closed the project, it was not open to them to advance such argument. However the one of the workmen himself in his statement has admitted that the project was closed.
37. From the material pleadings and evidence, which have been produced on record, nothing has come before this Court to show that the workmen at any stage had made any request or moved any application before the Labour Court to say that the records relating to the employment should be produced by the employer.
38. The Labour Court has also failed to record any statement or finding that employer had failed to produce any record that it had been required to produce. In my opinion, the Labour Court has wrongly drawn adverse inference against the employer on the basis of the statement made by the employer witness and whereas the actual facts and position is that the workmen failed to discharge the burden of proof that they have actually worked for 240 days. I therefore clearly come to the conclusion that from the material and evidence on record, it is nowhere established that workmen had actually worked for 240 days.
39. In a recent decision of this Court in the case of Surendranagar Panchayat and Anr. v. Jethabhai Pitamberbhai reported in 2006 (1) LLJ 268 in which the Hon’ble Supreme Court came to the conclusion that where the workman failed to prove that he had been in employment with the employer for a period of 240 days uninterruptedly, he was not entitled to protection in compliance of Section 25F of the Industrial Disputes Act, 1947. (This provision is pari materia to Section 6N of the U.P. Industrial Disputes Act, 1947). It was held by the Hon’ble Supreme Court that the scope of the enquiry before the Labour Court was confined only to 12 months preceding the date of termination to decide the question of the continuous service for the purpose of Section 25F of the Industrial Disputes Act, 1947. I quote para 4 of the judgment rendered in the case of Surendranagar Panchayat (supra) which reads as under:
4. From the tenor of the judgment of the Labour Court and the High Court, it is apparent to us that the judgment has proceeded on the premises as if the burden of proof lies on the employer to prove that the employee had not worked with him for 240 days in the preceding year immediately the date of his termination. Even if we assume that the burden of proof lies on the employer, we find from the record that the employer has filed a xerox copy of the Attendance Register and the Muster Roll which indicate that in the year 1984 the workmen has worked for 38 days, in the year 1985 – not a single day, in 1986 – 72 days, in 1987 – 25 days, in 1988 – not a single day, in 1989. 92 days, in 1990 – 82 days, and in 1991 not a single day. The Attendance Register and the Muster Roll clearly indicate that in none of the years from 1984 to 1991 the workman ever worked in the Department of his employer continuously for a year to constitute continuous service of one year. The claimant, apart from his oral evidence has not produced any proof in the form of receipt of salary or wages for 240 days or record of his appointment or engagement for that year to show that he has worked with the employer for 240 days to get the benefit under Section 25F of the Industrial Disputes Act. It is now well settled that it is for the claimant to lead evidence to show that he in fact worked for 240 days in a year preceding his termination.
40. As has been stated above that although the standard of proof in any industrial dispute is not the same as is required under the Evidence Act, yet it has been continuously held by the courts in India and most of all by the Hon’ble Apex Court that mere evidence by self statement made by the claimant workmen will not suffice in the matter for the purpose. The burden of proof lies on the workman to prove that he had worked for 240 days in a given year. For this purpose, I rely and quote from the decision of the Hon’ble Supreme Court in the case of R.M. Yellatti v. Assistant Executive Engineer reported in, which reads as under:
17. 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 adverse inference ultimately would depend thereafter on the facts of each case.
41. In this case, the record reveals that at no point of time did the workman call upon the employer to produce any wage register, attendance register or any other document, which may have been in the possession of the employer.
42. I also quote from the decision of the Hon’ble Apex Court in the case of Range Forest Officer v. S.T. Hadimani and Ors. reported in JT 2002 (2) SC 2, which reads as under:
30. …In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but his claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof or receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside….
43. Thus in the light of the observation made in the judgment aforesaid that in this particular case, the workmen failed to establish burden of poof that they had worked for more than 240 days and therefore they are not entitled to get the benefit of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947.
44. In so far as the argument of delay is concerned also there is substance in the contention as raised by the learned Counsel for the petitioner because the respondent workmen claim that they work as muster roll employees, according to the list appended to the order of reference, most of them claim that they had stopped working either in 1978-79 and/or in the year 1981. They raised the claim for the first time in the year 1980. More than 27 years had already passed in most of the cases. No record or evidence was to be found in respect of these workmen and none of the workmen came forward with any cogent evidence to establish their own case. Not even a single payment slip was placed before the Labour Court to establish they had actually worked with the petitioner corporation.
45. Other than statements on oath of the claimants, no other person came forward on behalf of the respondent workmen to state that they had worked for any period of time as to corroborate their statements.
46. In so far as the last argument of the relief of reinstatement and back wages are concerned, I have already come to the conclusion that the respondent workmen were not entitled to get relief under Section 6-N of the Act, no relief can be given to them either of reinstatement or back wages.
47. Before I part with the case, I may also refer the record that while granting back wages, the Labour Court has not applied its mind to the question at all; there is not even discussion in the award whether the workmen had sat idle during the period or during part of the period or whether they were without work and without doing so, the Labour Court has granted full back wages. This is not justified especially in view of the law laid down by the Hon’ble Apex Court in the case of U.P. State Brassware Corporation v. Union of India .
48. In the result, the writ petition is allowed, the award of the Labour Court is quashed. The amount which was deposited by the petitioner at the time of passing of the stay order dated 23.10.2000, will be released to the petitioner.