DEPUTY ENGINEER Vs. NITIN NANALAL SODHA

JUDGEMENT

(1.) THE petitioner has sought to challenge the award and order dated 29. 4. 1999 in Original Reference Case Nos. 1438 of 1987 and 1439 of 1987 of Labour Court, Amerli whereby the respondents were ordered to be reinstated with full back wages and cost of Rs. 251/ -. There is no dispute about the facts that the respondents were employed by the petitioner and the petitioner had not led any documentary evidence about the number of days worked by the respondents. The respondent workmen, however, examined themselves and produced such documentary evidence as they possessed about their continuation in service for more than one year preceding the date of termination of their services. The Labour Court, after appreciating the evidence on record, arrived at findings of fact to the effect that the petitioner had employed the respondents continuously for a period exceeding 240 days in the year preceding the date of the termination and that the termination was admittedly not in compliance with the provisions of Section 25-F of the Industrial Disputes Act, 1947. Under the circumstances, the impugned award and the order as aforesaid was made and the petitioner, having been aggrieved, approached this Court in the year 1999. It was stated at the bar that upon the operation of the impugned award being stayed herein, the respondents have claimed and obtained benefit under Section 17-B of the Industrial Disputes Act by filing Civil Application No. 8619 of 2004 wherein order was made on 25. 10. 2004 to grant the benefits under Section 17-B from the month of October, 2004.

(2.) HAVING been taken through the impugned award and the evidence on record, it was seen that the finding of fact recorded by the Labour Court could not in any way be assailed as illegal or perverse. However, learned counsel Mr. Kanabar appearing for the petitioner relied upon the judgment of Supreme Court in Rajasthan State Ganganagar S. Mills Ltd. V/s State of Rajasthan and another [ (2004)8 SCC 161] and in Surendranagar District Panchayat V/s Dahyabhai Amarsinh [ (2005)8 SCC 750], in support of his submission that adverse inference in favour of the workmen about their continued employment cannot be drawn merely on the basis of the employer not producing records. On the other hand, learned counsel Mr. Rathod appearing for the respondents relied upon the judgment in R. M. Yellatti V/s The Assistant Executive Engineer [2005 (9) Scale 139] wherein a three Judge Bench of the Apex Court held that the burden upon the workman to show that he had worked for 240 days in a given year 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 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 facts of each case.

(3.) THE respondents herein having led sufficient evidence to inspire confidence in their oral testimony, the findings recorded by the Labour Court were not perverse as recorded hereinabove. However, the admitted fact of pendency of the reference case before the Labour Court for as long as 12 years and pendency of the present proceedings for 10 years, by itself requires interference with the order for payment of back wages, even though the petitioner has failed to adduce any evidence regarding gainful employment of the respondents after termination of their service. Learned counsel Mr. Rathod submitted in that regard that the Court may suitably modify the impugned award as far as it relates to the payment of back wages.