Dismissed

Girraj v. Mayor Nagar Nigam Jaipur andORS

Rajasthan HC5 Jan 2016CW/6576/2015

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging a Labour Court award. The Court upheld the award because the petitioner failed to prove 240 days of continuous work as required under Section 25F of the Industrial Disputes Act, 1947. An adverse inference against the employer could not be drawn due to lack of application to summon documents.

What did the court decide?

The writ petition and stay application were dismissed as the petitioner failed to prove continuous work for 240 days.

Girraj Vs Mayor Nagar Nigam Jaipur andORS — Service and Employment | Rajasthan HC (2016)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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S.B. Civil Writ Petition No.6576/2015

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Girraj

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Versus

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Mayor, Nagar Nigam & Ors.

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DATE OF ORDER : 05/01/2016 HON'BLE MR. JUSTICE M.N. BHANDARI

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Mr. Nawal Singh Sikarwar, for petitioner

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By this petition, a challenge is made to the award passed

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by the Labour Court dated 16^th June, 2014. The reference of dispute has been answered against the workman holding that he has failed to prove his working for 240 days so as to allege violation of Section 25F of the Industrial Disputes Act, 1947 (in short “the Act of 1947” ).

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Learned counsel submits that petitioner had filed an affidavit stating about his working with the respondents but has been disbelieved without any basis. Once affidavit was filed, burden to prove his working days was discharged. The respondent-employer should have filed affidavit and the documents to show that petitioner had not worked for 240 days in the relevant period. The respondent-employer failed to produce the record to show that petitioner has not actually worked for the period given by him in his affidavit. In view of above, the statement of the petitioner should have been taken

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as final. The Labour Court failed to consider this aspect while answering the reference adverse to the petitioner. It is also in ignorance of the cross-examination of employer's witness where he has admitted petitioner's working though through Contractor. In any case, when petitioner has worked with the respondent-employer, the reference should have been answered in favour of the workman holding termination to be in violation of Section 25F of the Act of 1947. It is also stated that in similar circumstances, another reference was answered in favour of other employee vide award dated 21^st August, 2012.

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Learned counsel submits that once affidavit was filed by the workman followed by copy of muster roll, the finding should have been recorded in favour of the petitioner as employer failed to produce the original copy of the muster roll. The adverse inference should have been drawn against the employer followed by finding in favour of the petitionerworkman. The Labour Court erroneously shifted the burden on the petitioner to prove his case. If that is so, the petitioner had discharged his burden by producing his own statement and the documents to prove his working. For all these reasons, impugned award may be set aside.

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I have considered the submission made by the counsel and perused the record.

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The perusal of the award reveals a detailed discussion of all the facts. The affidavit submitted by the petitioner along with documents was considered. The muster roll produced by the petitioner was not believed by the Labour Court as document was not signed by any authority. Its existence or genuineness could not be proved otherwise. It is however true that petitioner had made statement on oath but it does amount to discharge of burden to prove his case. The issue aforesaid was considered in detail by the Apex Court in the case of Surendra Nagar District Panchayat & Anr. Vs. Jethabhai Pitamberbhai, reported in (2005) 8 SCC 450 . It is held that burden to prove case lies on the employee. The relevant Para 7 of the said judgment is quoted hereunder for ready reference:

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“7. More recently, in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, Municipal Corpn.,, Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram this Court has reiterated the principle that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the factum of his being in employment of the employer.”

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In the light of the said judgment and subsequent judgment in the case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, reported in (2005) 8 SCC 750 , the adverse inference against the employer cannot be drawn if application to summon documents was not made followed by non-production of documents. If affidavit has been filed by an employee to prove his case and a counter affidavit is filed by the employer then it remains affidavit against affidavit without any material to prove his case. The documents produced by the petitioner were not reliable thus finding has been recorded by the Labour Court after considering those documents as well.

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Learned counsel for petitioner could not explain as to why application was not submitted to summon the muster roll or other documents to prove working days of the workman. It was otherwise done by the other employee in whose favour award was passed on 21^st August, 2012. In Para 11 of the said award, it is specifically mentioned that despite order for production of documents on an application, they were not produced by the employer.

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In the instant case, no such application was moved and no reason has been given. In absence of such application, adverse inference cannot be drawn against the employer. It is a case where petitioner failed to prove his working by producing

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material documents or by summoning it. When the petitioner could not prove his working for 240 days or more so as to establish violation of Section 25F of the Act of 1947, no reason remains to cause interference in the award. The award has been passed by the Labour Court after considering all the aspects.

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Learned counsel for petitioner has relied on the judgment of Apex Court in the case of Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda, reported in (2010) 1 SCC 47 . I have perused the said judgment and find that it is based on the earlier judgment of the Supreme Court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas, reported in (2004) 8 SCC 195 . I find that earlier judgment in the case of Municipal Corporation, Faridabad (supra) has been considered by the Supreme Court in its subsequent judgment in the case of Surendra Nagar District Panchayat (supra). In the case of Director, Fisheries Terminal Division (supra), the earlier judgment in the case of Surendra Nagar District Panchayat (supra) was not referred by the counsel therein though it is specifically held that when burden to prove would shift from employee to employer. Mere deposition of statement on affidavit was not taken to be sufficient for discharge of burden. Unfortunately counsel appearing in the case of Director, Fisheries Terminal Division (supra) did not refer the earlier

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judgment of Supreme Court otherwise the consideration would have been made in the light of the earlier judgment. It is also a fact that provision of Evidence Act does not strictly apply in the proceedings before the Labour Court or the Tribunal.

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In view of above, I do not find any merit in the writ petition. It is accordingly dismissed along with stay application.

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FRBOHRA

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Certificate:

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“All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.”

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FATEH RAJ BOHRA, Sr. P.A.

Girraj v. Mayor Nagar Nigam Jaipur andORS

Case brief

What is this about?

What did the court decide?

Girraj v. Mayor Nagar Nigam Jaipur andORS

Case brief

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What did the court decide?

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