M/S Bata India Ltd. Kolkata and Others v. Presiding Officer Labour Court Allahabad and Another

Allahabad HC7 May 2022WRIC/28870/2009

Case brief

AI extract

What is this about?

Challenging a Labour Court award granting reinstatement with back wages, the Supreme Court found the workman failed to prove continuous service exceeding 240 days in a year. Relieving the employee from reinstatement, the Court ordered lump sum compensation instead.

What did the court decide?

Award of reinstatement with back wages modified; respondent to receive lump sum compensation of Rs. 50,000/- in lieu of work performed.

M/S Bata India Ltd. Kolkata and Others Vs… — Labour and Industrial Disputes | Allahabad HC (2022)

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Court No. - 38

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Case :- WRIT - C No. - 28870 of 2009

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Petitioner :- M/S Bata India Ltd. Kolkata And Others Respondent :- Presiding Officer Labour Court Allahabad And Another Counsel for Petitioner :- Chandra Bhan Gupta Counsel for Respondent :- C.S.C., R.K.Misra, Sunil Kumar, U.K.Misra

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Chandra Bhan Gupta, learned counsel for the petitioners and Sri U.K. Misra, learned counsel for the respondent workman.

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Present writ petition has been filed against the award of the Labour Court, Allahabad dated 30.08.2008 in Adjudication Case No. 27 of 2006 between the petitioner establishment and its workman Mukesh Mishra. By that award, the Labour Court has granted relief of reinstatement with 25% backwages. The aforesaid adjudication has arisen on the following reference:

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"Kya sevayojkon dwara apne shramik Shri Mukesh Mishra putra swargiya Ram Chandra Mishra ki sevayen dinank 24.04.2005 se samapt kiya jana uchit tatha/athva vaidhanik hai ? Yadi nahi to sambandhit shramik kya hitlabh/anutosh/relief paane ka adhikari hai, evam anya kis vivran sahit"

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Parties filed their affidavits and led evidence. Thereupon the award has arisen.

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Having heard learned counsel for the parties and having perused the record, it transpires, according to the respondent workman, he was engaged on daily wage basis on 27.02.1997 at the show room of the petitioner at Leader Road, Allahabad. He worked continuously till 23.04.2005. His services were orally dispensed with vide order dated 24.04.2005. In the written statement filed by the respondent, he claimed to have worked continuously from 27.02.1997 to 23.04.2005 and also for 240 days in

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one calendar year preceding his termination.

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In support of his case, the respondent workman filed details of nature of work performed for the years 2003, 2004 and 2005 vide Paper No. 13B/2. These were marked as Exhibits W-1, W-2 and W-3. He also filed an application being Paper No. 14/D to require the petitioner to produce the records of engagement of respondent workman. Despite order passed on that application, requiring the petitioner to produce those records, no compliance was made. Also, the respondent workman led oral evidence (Paper No. 17/C) stating that he had been engaged by the petitioner on 24.02.1997 against oral order. He further claimed termination from service by oral order dated 24.04.2005. He reiterated the claim of having worked for more than 240 days in one calendar year. The Labour Court has further recorded that the respondent workman placed on record the wage slip for different periods disclosing work performed by the respondent workman for 14 days a month.

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On the other hand, the petitioner reiterated the claim that the respondent workman had been engaged as a daily wage employee on work exigency basis only. His witness Uday Pratap Singh (EW-1) was also crossexamined. In that he stated that the workman was disengaged before completion of 240 days (in one calendar year).

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Learned counsel for the petitioner would submit, there is no dispute to the fact that the respondent workman was engaged as a daily wager. He worked intermittently during the period 1997 to 2005 on work exigency basis. Besides making a bald claim for having worked for more than 240 days in one calendar year, the respondent workman did

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not discharge the burden to prove that fact. He neither disclosed (in his pleadings) the number of days in a month, on which he may have worked nor he filed any evidence of payment made to him for 240 days in one calendar month. In fact, the documentary evidence in the shape of wage bill proved by the respondent workman only showed that he had worked for 14 days a month.

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Thus, it has been submitted, in absence of evidence led by the respondent workman of having worked for more than 240 days in one calendar year, the Labour Court erred in granting the relief of reinstatement. Second, it has been submitted, in any case, status of the respondent workman being that of a daily wage employee, the award of reinstatement may not have been granted by the Labour Court. The respondent workman may remain entitled to receive lump sum compensation. In that regard, reliance has been placed on a decision of this Court dated 17.08.2017 in Writ – C No. 8694 of 2002 (M/s Bata India Ltd. & Anr. Vs. State of U.P. & Ors.) . Third, it has been submitted, in any case, the respondent workman never offered himself for work despite interim order granted by this Court in the present proceedings dated 29.06.2009.

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Referring to the communication exchanged between the parties as have been annexed with the counter affidavit and the rejoinder affidavit, learned counsel for the petitioner would submit, even if the case of the respondent workman were to be believed, in that regard, he first wrote to the petitioner to be taken back on work, in the year 2013 that is almost four years after the interim order came to be passed. Even then, despite specific communication given by the petitioner, the respondent

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workman did not avail the opportunity and did not offer himself to perform any work.

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On the other hand, learned counsel for the respondent workman would submit, the respondent workman had worked for more than 240 days in each calendar year from 1997 to 2005. Despite specific pleading and despite direction issued by the Labour Court to the petitioner to produce the record of attendance, the petitioner did not comply with that order and therefore that evidence did not come on record. In such facts the Labour Court has rightly drawn inference against the petitioner. Reliance has been placed on the wage bill proved by the respondent workman that the petitioner was engaged in unfair labour practice. It had deliberately not allowed the respondent workman to work for more than 14 days in a month. Thus, artificial break had been given only to prevent the respondent workman from working for 240 days or more in one calendar year. Therefore, the petitioner cannot draw any advantage out of its own misdeed. Last, it has been submitted, the respondent workman had always offered himself for work. Amongst others, reliance has been placed on the letter dated 05.09.2013 written by the respondent workman on which the Deputy Labour Commissioner issued directions to the petitioner to allow the respondent workman to join services. Thus, it has been submitted, the petitioner cannot be permitted to take advantage of its own noncompliance of the order and the interim order passed by this Court. He has placed reliance on two decisions of the Supreme Court in Director, Fisheries Terminal Department Vs. Bhikubhai Meghajibhai Chavda, (2010) 1 SCC 47 and Jasmer Singh Vs. State of

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Haryana & Anr., (2015) 4 SCC 458 .

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Having heard learned counsel for the parties and having perused the record, in the first place, it is an undisputed case between the parties that the respondent workman was engaged on daily wage basis. There also appears no reason to doubt the finding of the Labour Court that the respondent workman had worked at the petitioner establishment over long period of eight years from 27.02.1997 to 23.04.2005. However, no cogent finding has been returned by the Labour Court of the number of days of work performed by the respondent workman in one calendar year preceding his termination.

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Looking at the written statement filed by the respondent workman (paragraph nos. 9 and 10), it is noted, the respondent workman only claimed to have worked for 240 days in one calendar year. He neither specified the period during which he may have worked for such number of days nor he made any disclosure of number of days for which he had worked in each month of the calendar year in which he claimed to have worked for 240 days. Even during evidence, the respondent workman did not lead any evidence in that regard that is he did not make any statement as to number of days of each month for which he may have worked during the calendar year preceding his termination.

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On the other hand, it does appear, the respondent workman made an application to compel the petitioner to file attendance register. That record was not filed. Therefore, principally the petitioner exposed itself to an adverse inference to be drawn. At the same time, it is not a rule of thumb to apply in every case. In other words, if the employer is required to produce certain documents

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such as attendance record which may establish the number of days a workman may have performed at an establishment and the employer fails to comply with that direction, it does not mean that it stood proved that the workman had worked for 240 days irrespective of the other facts pleaded and evidence on record.

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In the present case, the respondent workman had himself brought on record his wage slips. Those were proven. The Labour Court has perused the same and drawn an inference that the workman had worked for 14 days in a month. In face of that finding, in the first place, the workman proved to have worked for 168 days in a year. Neither at the stage of reference nor in the written statement the respondent workman made claim or pleadings to the effect that the petitioner was engaged in unfair labour practice. In paragraph no. 4 of the written statement filed by the respondent workman only this much was stated that no appointment letters were issued by the petitioner and that workmen were disengaged upon asking for regularisation. It was not pleaded by the respondent workman even at that stage that the petitioner was engaged in unfair labour practice to disengage the workman after taking work for 14 days in a month. The inference of unfair labour practice is not to be lightly drawn either by the Labour Court or this Court. Facts will have to be specifically pleaded and proven before such an inference may be drawn. In absence of any specific pleading of artificial break created by the petitioner, that inference is far-fetched and impermissible to be drawn in the facts of the present case.

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Resultantly, it has to be assumed that the petitioner had worked for 14 days in a month as that was his own

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case. In that regard, the respondent workman also did not plead that though he was made to work for 30 days, he was being issued wage slip disclosing wages for 14 days only.

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In view of these facts, the adverse inference sought to be drawn by the respondent workman and as has been drawn by the Labour Court of the respondent workman having worked for 240 days in one calendar year is found contrary to the case pleaded by the respondent workman himself.

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In view of the above, the award of reinstatement with 25% backwages is found to be unsustainable. All that the respondent workman may remain to be entitled for having worked for eight years is lump sum compensation.

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Accordingly, the award of the Labour Court is modified to the extent the respondent workman be paid a sum of Rs. 50,000/- by way of lump sum compensation in lieu of work performed by him.

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With the aforesaid observation, the present writ petition is disposed of .

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Order Date :- 7.5.2022 Abhilash

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Digitally signed by ABHILASH SINGH Date: 2022.05.10 10:24:45 IST Reason: Location: High Court of Judicature at Allahabad

M/S Bata India Ltd. Kolkata and Others v. Presiding Officer Labour Court Allahabad and Another

Case brief

What is this about?

What did the court decide?

M/S Bata India Ltd. Kolkata and Others v. Presiding Officer Labour Court Allahabad and Another

Case brief

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