Holding

Writ petitions are not maintainable for disputes concerning the factual question of whether a workman has worked more than 240 days in a year; such matters must be referred to the appropriate industrial tribunal under the Industrial Disputes Act.

Summary

The respondent, a casual worker of ONGC, claimed that he had worked more than 240 days in a year and sought regularisation of his service through a writ petition. The Guwahati High Court allowed the petition, holding that the employer bore the burden of proving the contrary. ONGC appealed, arguing that the factual dispute over the 240‑day service should be decided by an industrial tribunal, not by a writ court. The Supreme Court held that writ petitions are not maintainable where the issue is a disputed question of fact concerning the 240‑day rule and that such matters must be referred to the appropriate forum under the Industrial Disputes Act. It set aside the High Court judgment, directed the government to refer the dispute to the industrial tribunal, and clarified that the burden of proof lies on the workman to establish the 240‑day service.

Issues considered

Whether a writ petition under Article 226 is maintainable when the dispute involves the factual question of whether a workman has worked more than 240 days in a year.
Who bears the burden of proof for establishing the 240‑day service requirement under the Industrial Disputes Act.
Whether the High Court erred in entertaining the writ petition and deciding the factual issue.
What is the appropriate forum for adjudicating disputes concerning the 240‑day service rule.

Legislation cited

Industrial Disputes Act, 1947s. 25, s. 25-B, s. 25-F

Subjects

Writ petitionIndustrial Disputes Act240 days ruleBurden of proofCasual workerRegularisationArticle 226Industrial tribunal

Judgment

A CHAIRMAN, OIL AND NATURAL GAS CORPORATION LTD. AND
ANR.
v.
SHY AMAL CHANDRA BHOWMIK

NOVEMBER 23, 2005
B
[ARIJIT PASAYAT AND R.V. RAVEENDRAN, JJ.]

Writ Petition-Maintainability of, when disputed question of facts are
C involved-Held: Not maintainable-Remedy is to approach proper forum so
that evidence could be analysed-Industrial Disputes Ac.I, 1947-Section 25-
F, 25-B.

Respondent was working as casual worker in appellant-corporation.
He made representation seeking regularisation of his service but the same
D was rejected. Thereafter, he sought relief by filing writ petition. Appellant
denied his claim of having worked for 240 days. High Court allowed the
Writ Petition on the ground that the burden to prove that respondent had
not worked for more than 240 days in twelve months preceding
retrenchment was on the appellant, which they failed to discharge.

E In appeal to this Court, appellant contended that it was not for
employer to establish that the respondent had not worked for more than
240 days; on the contrary it was for the respondent to establish the said
fact.

Allowing the appeal, the Court
F
HELD: The approach of the High Court is not correct. High Court
should not entertain writ petitions directly when claim of service of more
than 240 days in a year is raised. Whether a person has worked for more
than 240 days or not, is a disputed question of fact which is not to be
G examined by the High Court. Proper remedy for the person making such
a claim is to raise an industrial dispute under the Industrial Disputes Act
so that the evidence can be analysed and conclusion can be arrived at. As
in the instant case the legal position has not been analysed in the proper
perspective, it would be appropriate if the matter is decided by the forum
provided under the Act. (413-C-E)
H 406
CHAIRMAN,OILANDNATURALGASCORPN. LTD. v. SHYAMALCHANDRABHOWMIK[PASAYAT, l.] 407

Range Forest Officer v. S. r Hadimani, (20021 3 SCC; Even Deinki v. A
Rajiv Kumar, (2002] 8 SCC 400; Rajasthan State Ganganagar S. Mills ltd.
v. State of Rajasthan and Anr., [20041 8 SCC 161; Municipal Corporation,
Faridabad v. Siri Niwas, (20041 8 SCC 195; M.P. Electricity Board v.
Hariram, (20041 8 SCC 246; Manager, Reserve Bank of India, Bangalore v.
S. Mani and Ors. [200515SCC100; Batala Cooperative Sugar Mills Ltd. v.
Sowaran Singh (2005) 7 Supreme 165; Surendranager District Panchayat v. B
Dehyabhai Amarsingh, (2005) 7 Supreme 307 and R.M. Yellatti v. The Asst.
Executive Engineer, JT (2005) 9 SC 340, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1909 of 2005.

From the Judgment and Order dated 6.10.2004 of the Gauhati High C
Court at Agartala Bench in W.A. No. 26 of 2002.

G.E. Vahanvati, Solicitor General, Devdart Kamat, Harikesh Baruah,
C.P. Sharma, V.N. Koura, Choudhary, A. Mariarputham and Ms. Aruna Mathur
for M/s. Arputham, Aruna & Co. for the Appellants. D
Sanjay Parikh, A.N. Singh and Ms. Anita Shenoy for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Oil and Natural Gas Corporation Ltd.
(hereinafter referred to as the 'ONGC') calls in question legality of the E
judgment rendered by a Division Bench of the Guwahati High Court, Agartala
Bench, dismissing the writ appeal filed by the appellants and thereby affirming
order passed by the learned Single Judge in the writ petition (Civil Rule
1
No.144/1992).
F
Factual background in a nutshell is as follows:

In May, 1992 respondent filed a writ petition before the Guwahati High
Court claiming that he had been working as casual worker in ONGC since
November, 1982 with intermittent lay offs and but for such intermittent lay
offs which were deliberate, he would have worked for more than 240 days G
and in any event during the period 1989-90 and 1990-91 he had worked
continuously for more than 240 days. It was averred that from 2.12.1984 to
10.6.1985 he had worked as an Automobile Mechanic Helper which established
that he is a skilled mechanic and entitled to the said post on a regular basis.
\t was further claimed that on l 0.1.1992 he made a representation/demand
seeking regularization in the post of Automobile Mechanic but the .same was H
408 SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A rejected by communication dated 30.4.1992. Respondent challenged the said
decision in a Writ Petition (Civil Rule No. 144/1992). In the writ petition,
prayer was made to quash the said communication and for a direction to
absorb him in the regular post of Automobile Mechanic with effect from
November, 1982 with all incidental benefits. Counter-affidavit was filed by
the appellants denying the claim of the respondent that he had been engaged
B for 240 days. Respondent filed further affidavit stating that he was called for
interview for the post of Junior Security Guard (which was open only to
contingent workers who had completed 240 days service in a year) which
substantiated his claim of having worked for more than 240 days.

C Appellants' further stand was that during the pendency of the writ
petition, in December, 2000, demand was raised by several unions for
reinstatement for 340 workers of the 180 days category including respondent.
Name of the respondent figured in the list of 340 workers at serial no.88.
Conciliation was held and settlement was arrived at on 27 /28.1.200 I. As per
the settlement the contingent workers (180 days category) were entitled to be
D re-engaged only for 2000-200 I field season, and on completion of 2000-
2001 field season, they should be disengaged with one time lump sum terminal
benefit payment calculated at Rs.3500/- per field season for the continuous
past service. Affidavit was filed before the High Court bringing the said
settlement on record.

E On 6.9.2001 learned Single Judge allowed the writ petition holding that
the respondent had acquired the right not to be terminated without following
provision of Section 25-F of the Industrial Disputes Act, 1947 (in short the
'Act') and further directed absorption against the vacant post subject to
qualifying eligibility ~s prescribed by the applicable service Jaw/recruitment
F rules. It was held that the settlement was not applicable to the respondent as
he denied to be a member of the union. The learned Single Judge came to
the conclusion that the settlement is not applicable to the respondent's case.
He accepted the respondent's claim of having completed continuous period
of 240 days in preceding twelve months. The said order of the learned Single
Judge was challenged by the appellants in Writ Appeal. Alongwith the Appeal
G Memo, the appellants filed several documents in support of their contention
that respondent had not worked for 240 days. During the course of hearing,
Division Bench of the High Couri directed the appellants to file some
documents. In response to it, certain d(icuments were filed in July, 2004. The
Division Bench; however, did not consider the additional documents filed by
H the appellants on the ground that they could not be permitted to be produced
CHAIRMAN. OIL AND NATURAL GAS CORPN. LTD.'" SHY AMAL CHANDRA BHOWMIK [PASA YAT. J] 409

at appellate stage. It dismissed the writ appeal primarily on two grounds. A
Firstly, it was held that ONGC had not established that the respondent had
not worked for more than 240 days in twelve months preceding retrenchment
and that it failed to establish that the respondent was a member of any union.
The dismissal of the writ appeal is challenged herein.

In support of the appeal, Mr. G.E. Vahanvati, learned Solicitor General, B
submitted that the approach of the High Court is clearly erroneous. It was not
for the appellants to establish that the respondent had not worked for more
than 240 days. On the contrary it was for the respondent-workman to establish
the said fact. Similarly, the binding nature of settlement has not been noticed
by the High Court and erroneously it was held that the appellants have not C.
established that the respondent was a member of any union. According to
him, the respondent-workman was required to establish that (a) he had worked
for more than 240 days; and (b) that he was not a member of any union.
Since disputed questions of fact were involved, the High Court should not
have entertained the writ petition. It was pointed out that in several Bio-Data
Fomts filled and filed by the respondent (required to be filed by the contractual/ D
casual worker), the respondent had acknowledged that he had worked for less
than 240 days in each year he served. Reference in this regard is also made
to several documents filed as part of Annexure 'P' of the rejoinder affidavit
before this Court. It is pointed out that the respondent himself has accepted
that the certificate issued to him reflected that he had worked for less than E
240 days.

On the contrary, learned counsel for the respondent-workman submitted
that the High Court has rightly placed onus on the appellants as the initial
burden to establish that he had worked for more than 240 days has been
discharged. Further, no explanation has been given as to how the respondent F '
could be called to interview which was restricted to persons who had completed
more than 240 days of engagement.

In a large number of cases the position of law relating to the onus to
be discharged has been delineated. In Range Forest Officer v. S. T. Hadimani, G
[2002] 3 sec 25, it was held as follows:

"2. In the instant case, dispute was referred to the Labour Court that
the respondent had worked for 240 days and his service had been
terminated without paying him any retrenchment compensation. The
appellant herein did not accept this and contended that the respondent H
had not worked for 240 days. The Tribunal vide its award dated
410 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A 10.8.1998 came to the conclusion that the service had been termiilated
without giving retrenchment compensation. In arriving at the
conclusion that the respondent had worked for 240 days the Tribunal
stated that the burden was on the management to show that there was
justification in termination of the service and that the affidavit of the
workman was sufficient to prove that he. had worked for 240 days in
B a year.

3. For the view we are taking, it is not necessary to go into the.
question as to whether the appellant is an "industry" or not, though
reliance is placed on the decision of this Court in State of Gujarat v.
c Pratamsingh Narsinh Parmar, [2001] 9 SCC 713. 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
this claim was denied by the appellant. It was then for the claimant
D 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 of
receipt of salary or wages for. 240 days or order or record of
E
appointment or engagement for this period was produced by the
workman. On this ground alone, the award is liable to be set aside.
However, Mr. Hegde appearing for the Department states that the
State is really interested in getting the law settled and the respondent
will be given an employment on compassionate grounds on the same
F terms as he was allegedly engaged prior to his termination, within
two months from today."

The said decision was followed in Essen Deinki v. Rajiv Kumar, [2002]
8 sec 400.

G In Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and
Anr., [2004] 8 SCC 161, the position was again reiterated in paragraph 6 as
follows:

"It was the case of the workman that he had worked for more
than 240 days in the year concerned. This claim was denied by the
H appellant. It was for the claimant to lead evidence to show that he had
CHAIRMAN,OILANDNATURALGASCORPN. LTD.1·. SHYAMALCHANDRABHOWMIK[PASAYAT, J.] 411

in fact worked up to 240 days in the year preceding his termination. A
He has filed an affidavit. It is only his own statement which is in his
favour and that cannot be regarded as sufficient evidence for any
Court or Tribunal to come to the conclusion that in fact the claimant
had worked for 240 days in a year. These aspects were highlighted
in Range Forest Officer v. S. T Hadimani, [2002] 3 SCC 25. No
proof of receipt of salary or wages for 240 days or order or record B
in that regard was produced. Mere non-production of the muster roll
for a particular period was not sufficient for the Labour Court to hold
that the workman had worked for 240 days as claimed."

In Municipal Corporation, Faridabad v. Siri Niwas, [2004] 8 SCC 195, C
it was held that the burden was on the workman to show that he was working
for more than 240 days in the preceding one year prior to his alleged
retrenchment. In M.P. Electricity Board v. Hariram, [2004] 8 SCC 246 the
position was again reiterated in paragraph l l as follows:

"The above burden h(!ving not been discharged and the Labour Court D
having held so, in our opinion, the Industrial Court and the High
Court erred in basing an order of reinstatement solely on an adverse
inference drawn erroneously. At this stage it may be useful to refer
to a judgment of this Court in the case of Municipal Corporation,
Faridabad v. Siri Niwas, JT (2004) 7 SC 248 wherein this Court
disagreed with the High Court's view of drawing an adverse inference E
in regard to the non-production of certain relevant documents. This
is what this Court had to say in that regard:

"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 F
the same, it would have gone against his contentions. The matter,
however, would be different where despite direction by a court
the evidence is withheld. Presumption as to adverse inference for
non-production of evidence is always optional and one of the
factors which is required to be taken into consideration is the G
background of facts involved in the !is. The presumption, thus,
is not obligatory because notwithstanding the intentional non-
production, other circumstances may exist upon which such
intentional non-production may be found to be justifiable on
some reasonable grounds. In the instant case, the Industrial
Tribunal did not draw any adverse inference against the appellant. H
412 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A It was within its jurisdiction to do so particularly having regard
to the nature of the evidence adduced by the respondent."

In Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors.,
[2005] 5 SCC 100 a three-Judge Bench of this Court again considered the
matter and held that the initial burden of proof was on the workman to show
B that he had completed 240 days of service. Tribunal's view that the burden
was on the employer was held to be erroneous. In Batala Cooperative Sugar
Mills Ltd. v. Sowaran Singh (2005) 7 Supreme 165 it was held as follows:

"So far as the question of onus regarding working for more than 240
days is concerned, as observed by this Court in Range Forest Officer
c v. S. T. Hadimani, [2002] 3 SCC 25 the onus is on the workman."

The position was examined in detail in Surendranagar District Panchayat v.
Dehyabhai Amarsingh, (2005) 7 Supreme 307 and the view expressed in
Range Forest Officer, Siri Niwas, MP. Electricity Board, cases (supra) was
reiterated.
D
In a recent judgment in R.M. Yellatti v. The Asst. Executive Engineer,
JT (2005) 9 SC 340, the decisions referred to above were noted and it was
held as follows:

"Analyzing the above decisions of this court, it is clear that the
E provisions of the Evidence Act in terms do not apply to the proceedings
under section IO 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
F 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
G 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 facts of each case. The above
decisions however make it clear that mere affidavits or self-serving
H statements made by the claimant/workman will not suffice in the
CHAIRMAN, OIL ANO NATURAL GASCORPN. LTD. v. SHY AMAL CHANDRA BHOWMIK [PASAYAT. J.) 413

matter of discharge of the burden placed by law on the workman to A
prove that he had worked for 240 days in a Biven 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 a
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 facts of each case."

When examined with reference to the principle laid down in the aforesaid C
decisions, it i!ii clear that the approach of the High Court i.e. the learned
Single Judge as endorsed by the Division Bench, is not correct. The relevant
issue was not considered in its proper perspective. The respective stand was
to be examined in the light of law laid down by this Court in the decisions
referred to above. The question of shifting of onus assumes relevance only
when evidence is led. Almost all the decisions referred to above related to D
matters which came to the High Court after evidence was led before the
Tribunal by the contesting parties. High Courts should not entertain writ
petitions directly when claim of service of more than 240 days in a year is
raised. Whether a person has worked for more than 240 days or not is a
disputed question of fact which is not to be examined by the High Court. E
Proper remedy for the person making such a claim is to raise an industrial
dispute under the Act so that the evidence can be analysed and conclusion
can be arrived at. As in the instant case the legal position has not been
analysed in the proper perspective, it would be appropriate if the matter is
decided by the forum provided under the Act.
F
In the circumstances we set aside the judgment of the learned Single
Judge as affirmed by the Division Bench and direct that in case a dispute is
raised before the appropriate Government, it shall refer the matter to the
concerned Tribunal for adjudication within two months from the date of
receipt of the dispute. The concerned Tribunal would make an effort to
dispose of the reference within six months from the date of its reference. G
Nonnally, it is for the appropriate Government to decide whether a reference
is called for. But in view of the undisputed position that industrial dispute
does exist, in the peculiar facts of the case, we direct the Government to
make a reference. This would also shorten the period of litigation.
H
414 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A The reference shall be on the questions as to whether (a) the workman's
claim that he had \\<Orked continuously for more than 240 days is correct and
(b) whether the settlement arrived at on 27/28 January, 2001 ·is binding on
the workman. We make it clear that we have not expressed any opinion on
the merits of the case.

B Appeal is accordingly allowed, but with no order as to costs.

D.G. Appeal allowed.