KRISHNA BHAGYA JALA NIGAM LTD.versusMOHAMMED RAFI

                         [2009] 7 S.C.R. 109


              KRISHNA BHAGYA JALA NIGAM LTD.                         A
                                 v.
                          MOHAMMED RAFI
                   Civil Appeal No. 2895 of 2009
                          APRIL 28, 2009
                                                                     B
           (DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.)
         Industrial Disputes Act, 1947:
          Sections 10, 25-F - Claim for regularization - Burden of   c
    proving that the workman had worked for more than 240 days
    in the preceding one year prior to the alleged retrenchment -
    Held: The burden is on the workman.
         The termination of certain workmen was under
i
    challenge and the Labour Court recorded a finding that D
    they were terminated without complying with the
    provisions of Section 25-F of the Industrial Disputes Act
    and hence the termination was illegal. It directed
    reinstatement of the workmen with back wages. The award
    was challenged by filing a writ petition. The Single Judge E
    held that the workmen had not discharged the initial onus
    of proving that they worked for more than 240 days and
    held their reinstatement was illegal, and set aside the
    award. However, the Division Bench allowed the writ
    appeal, against which the present appeal,has been filed.
                                                               F
         Allowing the appeal, the Court
         HELD : The initial burden of proof was on the
    workman to show that he had completed 240 days of
    service in the preceding one year prior to the alleged
    retrenchment. This burden is discharged upon the G
    workman adducing cogent evidence, both oral and
    documentary. (Para 10, 11) [115-F-G; 116-D-E]
         Range Forest Officer v. S. T Hadimani 2002 (3) SCC 25;
                                 109                                 H
    110       SUPREME COURT REPORTS                 [2009] 7 S.C.R.


A Essen Deinki v. Rajiv Kumar 2002 (8) SCC 400; Rajasthan
  State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr.
  2004 (8) SCC 161; Municipal Corporation, Faridabad v. Siri
  Niwas 2004 (8) SCC 195; MP. Electricity Board v. Hariram
  2004 (8) SCC 246; Manager, Reserve Bank of India,
B Bangalore v. S. Mani and Ors. 2005(5) SCC 100; Batala
  Cooperative Sugar Mills Ltd. v. Sowaran Singh 2005 (7)
  Supreme 165; Surendranagar District Panchayat v.
  Dehyabhai Amarsingh 2005 (7) Supreme 307; R.M. Yellatti v.
                                                                          '   .
  The Asst. Executive Engineer JT 2005 (9) SC 340; ONGC
c Ltd. and Anr. v. Shyamal Chandra Bhowmik 2006 (1) SCC
  337 and Chief Engineer, Ranjit Sagar Dam and Anr. v. Sham
  Lal 2006 AIR SCW 3574 - referred to.
                       Case Law Reference
          2002 (3) sec 25          referred to        Para 6
D
          2002 (8) sec 400         referred to        Para 7
          2004 (8) sec 161         referred to        Para 8
          2004 (8) sec 195         referred to        Para 9
E         2004 (8) sec 246         referred to       Para 9
          2005(5) sec 100          referred to        Para 10
          2005 (7) Supreme 165 referred to            Para 10
          2005 (7) Supreme 307 referred to           Para 10
F
          JT 2005 (9) SC 340       referred to        Para 11
          2006 (1) sec 337         referred to       Para 12
          2006 AIR sew 3574        referred to        Para 12
G        CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2895
    of 2009                                                                   ~
                                                                      '
         From the Judgement and Order dated 02.08.2005 of the
    Hon'ble High Court of Karnataka at Bangalore in the Writ Appeal
    No. 1500 of 2005 (l-TER)
H
            KRISHNA BHAGYA JALA NIGAM LTD. V.                111
                     MOHAMMED RAFI

     Naveen R. Nath, for the Appellant(s).                         A
      R.V. Naik, R.R. Naik, R.K. Gupta, S.K. Tondon, Pritam Shah
(for Rameshwar Prasad Goyal), for the Respondent(s).

     The Judgement of the Court was delivered by
     DR. ARIJIT PASAYAT, J.                                        B

     1. Leave granted.

      2. Challenge in this appeal is to the judgment of the
Division Bench of the Karnataka High Court allowing the writ
appeal filed by the respondent. By the impugned judgment the       C
Division Bench set aside the order passed by a learned Single
Judge and the award made by the Labour Court.

     3. Background facts in a nutshell are as follows:
      The workman had been working as a daily wage employee D
with the Krishna Bhagya Jala Nigam Limited (for short the 'Jala
Nigam') which, at the relevant point of time was executing the
Upper Krishna Project in the State of Karnataka. His services
were allegedly terminated which gave rise to an industrial
dispute. According to the claim made by the workman he served - E
the Jala Nigam from 29.10.1989 to 1.4.1996. He further claimed
that his services were terminated without complying with the
provisions of Section 25-F of the Industrial Disputes Act 1947
(for short the Act).A reference under Section 10(1) (c) of the Act
was made to the Labour Court, Gulbarga. Several other F
employees had also challenged the termination of their services
and other references had been made to the Labour Court and
some of the employees had also filed applications before it
under sub-section (4-A) of Section 10 of the Act The reference
made at the instance of the workman was contested by the Jala G
Nigam and on a consideration of the oral and documentary
evidence led by the parties, the Labour Court recorded a finding
that the services of the workman had been terminated without
complying with the provisions of Section 25-F of the Act and
therefore the termination was illegal. Accordingly the termination H
    112       SUPREME COURT REPORTS                    (2009] 7 S.C.R.


A was set aside and the Jala Nigam was directed to reinstate the
  workman with full back wages and continuity of service. This
  award came to be challenged by the Jala Nigam in W.P.
  No.40822/1999. This writ petition was heard along with the writ
  petitions filed in the case of other workmen as well and all the
B writ petitions were disposed of by the learned single Judge by
  a common order. In the case of other workmen there was
  considerable delay in raising the industrial dispute and therefore      ,.
                                                                                    •
  the learned single Judge non-suited them on that ground. In the
  case of the workman the Labour Court observed that there had
  been no delay but the provisions of Section 25-F of the Act had
c not  been complied with and therefore the termination was
  wrongful. The learned single Judge set aside the award of the
  Labour Court holding that there was no evidence before it
  indicating that the workman had ever been in the service of the
  Jala Nigam. According to the learned single Judge, the workman
D had not discharged the initial onus of proving that he had worked
  for more than 240 days with the Jala Nigam and therefore the
  award directing his reinstatement was illegal. The writ petition
  was allowed and the award of the Labour Court set aside. It is
  against this order of the learned single Judge that a writ appeal
E was filed before the Division Bench. By the impugned judgment,
  the writ appeal was allowed.
       4. Learned counsel for the appellant submitted that the
  basic approach of the High Court is erroneous. It proceeded on
  the basis as if the period of employment/engagement of a
F
  workman has to be established by the employer. There is no
  appearance on behalf of the workman.
          5. Learned counsel forthe respondent-workman supported
    the judgment of the High Court.
G         6. 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 (2002 (3) SCC 25), it was held as
    follows:

H         "2. In the instant case, dispute was referred to the Labour
         KRISHNA BHAGYA JALA NIGAM LTD. V.                 113
        MOHAMMED RAFI [DR. ARIJIT PASAYAT, J.]

    Court that the respondent had worked for 240 days and A
    his seNice had been terminated without paying him any
    retrenchment compensation. The appellant herein did not
    accept this and contended that the respondent had not
    worked for 240 days. The Tribunal vide its award dated
    10.8.1998 came to the conclusion that the seNice had B
    been terminated 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 seNice and that the  c
    affidavit of the workman was sufficient to prove that· he
    had worked for 240 days in 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 D
    in State of Gujarat v. 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 E
    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 to lead
    evidence to show that he had in fact worked for 240 days
    in the year preceding his termination. Filing of an affidavit F
    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 appointment or G
    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 H
    114        SUPREME COURT REPORTS                    [2009] 7 S.C.R.


A         compassionate grounds on the same terms as he was
          allegedly engaged prior to his termination, within two
          months from today."

        7. The said decision was followed in Essen Oeinki v. Rajiv
    Kumar (2002 (8) sec 400).
B
          8. 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
C         more than 240 days in the year concerned. This claim
          was denied by the appellant. It was for the claimant to lead
          evidence to show that he had in fact worked up to 240
          days in the year preceding his termination. He has filed an
          affidavit. It is only his own statement which is in his favour
D         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
E         or wages for 240 days or order or record 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."
F       9. In Municipal Corporation, Faridabad v. Siri Niwas
  (2004 (8) sec 195), 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
G position was again reiterated in paragraph 11 as follows:
          "The above burden having not been discharged and the
          Labour Court 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
H
          . KRISHNA BHAGYA JALA NIGAM LTD. V.               115
          MOHAMMED RAFI [OR. ARIJIT PASAYAT, J.]

     erroneously. At this stage it may be useful to refer to a 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 in regard to the non-
     production of certain relevant documents. This is what this B
     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 the same, it would have gone C
     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 D
     the background of facts involved in the lis. 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 E
     case, the Industrial Tribunal did not draw any adverse
     inference against the appellant. It was within its jurisdiction
     to do so particularly having regard to the nature of the
     evidence adduced by the respondent."
     10. In Manager, Reserve Bank of India, Bangalore v. S.       F
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 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           G
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     H
    116        SUPREME COURT REPORTS                   [2009] 7 S.C.R.


A         Range Forest Officer 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 Oehyabhai Amarsingh (2005 (7) Supreme
    307) and the view expressed in Range Forest Officer, Siri
8   Niwas, M.P. Electricity Board cases (supra) was reiterated.
          11. In R.M. Yel/atti v. The Asst. Executive Engineer (JT
    2005 (9) SC 340), the decisions referred to above were noted
    and it was held as follows:
c         "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
D         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
E         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
F         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 statements made
G
          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
H
                 KRISHNA BHAGYA JALA NIGAM LTD. V.                   117
                MOHAMMED RAFI [DR. ARIJIT PASAYAT, J,]

           suppression by the claimant workman will not be the ground       A
           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        B
           are perverse. This exercise will depend upon facts of each
           case."

          12. The above position was again re-iterated in ONGC
    Ltd. and Anr. v. Shyamal Chandra Bhowmik (2006 (1) SCC
    337) and Chief Engineer, Ranjit Sagar Dam and Anr. v. Sham              C
    Lat (2006 AIR sew 3574).
           13. Appeal is allowed. No order as to costs.

    G.N.                                               Appeal allowed.




'