CHAIRMAN MUNICIPAL BOARD Vs. MAHAVIR PRASAD SHARMA

JUDGEMENT

(1.) BY this writ petition, the petitioner Municipal Board, Sri Madhopur seeks to challenge the Award dated 26. 4. 2002 passed by the Labour Court No. 2, Jaipur in LCR No. 866/1998 whereby retrenchment of the respondent-workman w. e. f. 3. 5. 1993 has been held to be unjustified and illegal and the workman has been ordered to be reinstated in service with continuity of service as well as full back wages.

(2.) BRIEFLY stated, the relevant facts of the case, as per the workman, are that the respondent-workman was appointed on 1. 7. 1991 as Naka Guard-cum-Electrician and thereafter, he continuously worked upto 3. 5. 1993 and has completed 240 days. The impugned retrenchment order has been passed in utter violation of mandatory provisions of Sec. 25-F of the Industrial Disputes act, 1947 (in short `the Act' ). The workman further raised the grievance of violation of Sec. 25-G and H of the Act by stating that persons junior to him have been continued and further he has not been given an opportunity of fresh employment.

(3.) SUBMISSION of counsel for the petitioner Municipal Board is that the Labour Court has committed gross error of law in not considering the settled position of law that now burden is upon the workman to prove by cogent evidence that he had worked for 240 days in the last calendar year. Mere assertion in the statement of claim or the affidavit of the workman is not sufficient. Mr. K. N. Gupta placed reliance on a Supreme Court judgment in R. M. Yellatti vs. Assistant Executive Engineer (AIR 2006 SC 355) wherein many other earlier judgments of the Supreme Court have also been considered. Para 17 of the aforesaid judgment is relevant and the same is as under: " 17. Analyzing the above decision 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 facts of each case. The above decisions however make it clear that mere affidavits or self- serving statements made 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 muter 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 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. "