Dismissed

Toran Lal Deshmukh v. The Divisional Forest Officer Forest Division Durg and Ors.

Chhattisgarh HC16 Oct 2024WPL/37/2015

Case brief

AI extract

What is this about?

A writ petition challenging the dismissal of a claim for reinstatement regarding illegal retrenchment. The High Court dismissed the petition, holding that the burden of proving 240 days of service ultimately lies with the employer when the workman's account is genuine, and the termination complied with Section 25F.

What the court decided

AI extract

Toran Lal Deshmukh Vs The Divisional… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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2024:CGHC:40796

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPL No. 37 of 2015

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Order Reserved on : 26.09.2024 Order Delivered on : 17.10.2024

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1 - Toran Lal Deshmukh, S/o Late Shri Umed Singh, Aged About 50 Years, R/o Village Birejhar, Tahsil And Distt. Drug (C.G.). ... Petitioner

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versus

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1 - The Divisional Forest Officer, Forest Division Durg (C.G.).

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2 - Ghanshyam Giri S/o Late Shri Amar Giri, Aged About 51 Years, R/o Kelabadi Durg, Tahsil And Distt. Durg (C.G.).

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3 - Kalanath S/o Shri Abheram Aged About 48 Years R/o Village Anjara, Tahsil And Distt. Durg (C.G.). ... Respondents

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(Cause-title, as taken from CIS System)

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For Petitioner : Mr. Jitendra Gupta, Advocate For State/Respondent No.1 : Mr. T.L. Bareth, Panel Lawyer

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(Hon'ble Shri Justice Naresh Kumar Chandravanshi)

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C A V Order

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This petition has been preferred by petitioner under Article 226/227 of the Constitution of India challenging the order dated 12.08.2014 (Annexure -P/1) passed by learned Labour Court, Durg (C.G.) in Case No.12/ I. D. Act /2008 (Reference), whereby the statement of claim filed by petitioner, has been dismissed.

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Facts of the case, as projected by petitioner, in brief are that, petitionerworkman was engaged under employment of respondent No.1 as a daily wage employee, but, he was removed from employment vide order dated

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31.03.2000. In pursuance of dispute raised by petitioner and two other workmen, matter was referred by Office of Labour Commissioner, Chhattisgarh, Raipur to the Labour Court. Thereafter, Labour Court registered the aforesaid case and after hearing both the parties, Labour Court dismissed the claim of petitioner vide impugned order dated 12.08.2014, which has been challenged by petitioner in instant petition.

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Learned counsel for the petitioner would submit that petitioner was engaged as daily wage employee in the office of respondent No.1 since 1984-85. He worked as daily wage employee till 31.03.2000, but, he was retrenched from employment after serving notice (Annexure -P/2) to him stating inter alia that he had got entered his name in seniority list of labour prior to 31.12.1988 on the basis of forged certificate, whereas, he was engaged in employment since May 1991. He further submitted that plaintiff has filed Certificate (Annexure -P/5) issued by Anand Telang, In-Charge Flying Squad, Forest Division (General), Durg, in which, it has been certified by aforesaid officer that petitioner was working at village Birejhar, Forest Range, Durg since 1984-85. It is further submitted that petitioner has been retrenched from his employment in pursuance of Circular dated 26.02.2000, issued by the General Administration Department, Government of M.P. (Annexure -R/1), in which, it was directed that daily wage employees, who have been engaged after 31.12.1988 be removed from their employment, but, petitioner was engaged by respondent-department since 1984-85 and no document has been filed by respondents to prove the fact that he had got added his name in the seniority list of employees, who were engaged prior to 31.12.1988 on the basis of forged certificate. Although, notice was given to the petitioner and retrenchment compensation of Rs.14,584/- was also paid to him, but, it is very meager amount and further, since, petitioner was not covered under the period prescribed in aforesaid Circular dated 26.02.2000 (Annexure -R/1), therefore, removal of petitioner from his service, is illegal. Hence, it is prayed

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that this petition may be allowed, impugned order may be set aside and respondent No.1 be directed to reinstate petitioner in his employment.

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Per contra, respondent-department has filed its reply. Learned State Counsel appearing for respondent-department while referring to its reply, would submit that petitioner was engaged in employment in the Office of Forest Division, Durg since May, 1991 and in enquiry, it was found that, on the basis of forged certificate, he had got entered his name in the seniority list of employees, who had been engaged prior to 31.12.1988, therefore, his employment was terminated in pursuance of Circular No. F 5-4 / 69 / I / वेआ्ቚ / 2000, भोपाल, दि�नांक 26.2.2000 (Annexure -R/1), in which, it had been directed that the daily wage employees, who have been engaged after 31.12.1988, be removed from their employment. He further submitted that prior to removal of petitioner from his employment, notice was given to him and retrenchment compensation of Rs. 14,584/- was also paid to him. Thus, complying with provisions of Section 25 F of the Industrial Disputes Act, 1947 (henceforth referred to as ‘the Act, 1947’), petitioner has been terminated from his employment, hence, this petition is liable to be dismissed.

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I have heard learned counsel for the parties and perused the material available on record along with original record of the concerned Labour Court.

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From the contentions putforth by both the parties, it is not in dispute that petitioner was engaged in employment with the respondent-department and his employment was terminated vide Annexure P/2 dated 31.03.2000. As per this termination notice, his employment was discontinued after completion of one month notice i.e. on 30.04.2000.

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Notice (Annexure -P/2) itself says that petitioner was engaged with respondent-department since May 1991, which was also admitted by respondent-department in its reply, thus, it is very well proved from the deposition of petitioner, written statement filed by respondent-department as well as notice (Annexure -P/2) that petitioner was in the employment with

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respondent-department as daily wage employee at least since May 1991 and his employment was discontinued from 30.04.2000, thus, he worked as daily wage employee of respondent-department from May 1991 to 30.04.2000.

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Learned Labour Court has held that petitioner-workman has failed to prove that he was engaged with respondent-department for more than 240 days in one calender year, but since, respondent-department itself has accepted in the case that, petitioner was in the employment with it from May 1991 to 30.04.2000, therefore, there will be presumption in favour of the petitioner that he worked for more than 240 days with respondent-department in a calender year. Only because petitioner could not have filed any document like muster roll etc., it cannot be held that he has failed to prove aforesaid fact.

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Hon’ble Supreme Court in the case of Director, Fisheries Terminal Division vs. Bhikubhai Meghajibhai Chavda reported in AIR 2010 SC 1236 , while considering the difficulty of workman/labour of muster roll has observed in para 13, 14 & 15, as under:-

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“13) The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the labour court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.

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Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period

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between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :

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"However, applying general principles and on reading the aforesaid 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 up 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 dailywaged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."

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Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed

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out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service…….... It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, in spite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195] : (2004 AIR SCW 5184), where it is observed:

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"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 against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."

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10.In instant case, respondent-department itself has admitted that petitioner has worked with it as daily wage employee at least from May 1991 to 30.04.2000, therefore, as per the law laid down by Apex Court in aforecited case, if petitioner has not worked more than 240 days in one calender year, then,

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evidence/document in this regard ought to have been filed/proved by respondent-department, but no evidence/document has been adduced by it. Rather, since petitioner had worked for about 9 years with the respondentdepartment, therefore, it shall be presumed that he had worked for more than 240 days with respondent-department in one calender year. Therefore, it is found that negative finding recorded by learned Labour Court in this regard, is found to be perverse & illegal, hence the same is set aside.

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In the present case, it is contention of the petitioner that he had engaged by respondent-department in employment as daily wage employee since 198485, despite that, he has been removed/retrenched from employment on the strength of Circular dated 26.02.2000 issued by the then Government of M.P., wherein it was directed that daily wage employee, who has been engaged after 31.12.1988 be removed from employment. Learned counsel for the petitioner submits that since petitioner was engaged as daily wage employee with respondent-department since 1984-85 and no enquiry report has been filed or proved by respondent-department that he had got entered his name in seniority list of employees, who had been engaged prior to 31.12.1988 on the basis of forged document, therefore, termination/retrenchment of petitioner from employment in the light of aforesaid circular, is perverse as petitioner was engaged in employment with respondent-department prior to 31.12.1988, therefore, learned counsel for the petitioner submits that order (Annexure -P/2) dated 31.03.2000 passed by respondent-department terminating service of employment of petitioner, is illegal.

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12.As per aforesaid contention, petitioner claims that he was engaged as daily wage employee of respondent-department since 1984-85, but he has not filed any document to substantiate his aforesaid statement, even other claimants namely Ghanshyam Giri Goswami & Kalanath Sahu have also not stated said fact in their deposition, another witness Sanjay Brahmbhatt has

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only stated to the extent that petitioner was posted from April 1994 to 30.06.1996 in Forest Depo, Thanod as Chaukidar. This witness has also not supported the deposition of petitioner that he was engaged since 1984-85. Thus, none of the other witnesses has supported aforesaid contention of the petitioner.

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13.During the course of submission, learned counsel for the petitioner draws attention of the Court upon Certificate (Annexure -P/5), which has been issued by Anand Telang, In-Charge Flying Squad, Durg Forest Range (General), in which, it has been certified that petitioner was engaged as daily wage employee since 1984-85 in Forest Range, Durg, but this certificate is a photocopy only, neither it has been filed before the concerned labour Court nor Anand Telang, In-Charge Flying Squad has been examined by petitioner claimant before the labour Court, therefore, alleged photocopy of certificate (Annexure -P/5) cannot be relied upon, as it does not have any legal value. Therefore, only on the basis of such document, it cannot be held that petitioner was engaged as daily wage employee with respondent-department since 1984-85.

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14.Vide notice (Annexure -P/2) dated 31.03.2000, employment of petitioner was discontinued from 30.04.2000 i.e. after one month of date of notice. The petitioner Toran Lal Deshmukh has also admitted in his cross-examination that he had been given retrenchment compensation of Rs. 14,584/-. Thus, it is found that provisions of Section 25-F of the Act, 1947 has been complied with while removing petitioner from his employment. Therefore, I do not find any perversity & illegality in the order (Annexure -P/1) passed by respondent no.1 i.e. termination /retrenchment of petitioner from his employment.

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As has been discussed above, employment of petitioner was terminated since 30.04.2000, but, industrial dispute was raised by petitioner after 8 years from termination of his employment, as he raised industrial dispute in the year 2008, thus, on this count also, claim of the petitioner is not found to be

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sustainable, as has been observed by Labour Court also.

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