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CASE NO.:

Appeal (civil) 1851 of 2002

PETITIONER:

Municipal Corporation, Faridabad

RESPONDENT:

Siri Niwas

DATE OF JUDGMENT: 06/09/2004

BENCH:

N. Santosh Hegde & S.B. Sinha

JUDGMENT:

J U D G M E N T

With C.A. No. 4563 of 2002

S.B. SINHA, J:

Both these appeals involving similar questions of fact and law were

taken up for hearing together and are being disposed of by this common

judgment.

The factual matrix of the matter, however, is being noticed from Civil

Appeal No.1851 of 2002.

The Appellant is in appeal before us being aggrieved by and

dissatisfied with the judgment and order dated 3.5.2001 passed by the

learned Single Judge of the Punjab and Haryana High Court in CWP No.624

of 2000 whereby and whereunder the writ petition filed by the respondent

herein, questioning an Award dated 13.8.1999 passed by the Industrial

Tribunal, Faridabad, was allowed.

The basic fact of the matter is not much in dispute. The respondent

herein allegedly worked with the Appellant herein from 5.8.1994 to

31.12.1994 as Tubewell Operator. He allegedly further worked from

1.1.1995 to 16.5.1995 at Sector 37, Old Zone II. His services were

terminated on or about 17.5.1995 whereupon an industrial dispute was

raised.

The Government of Haryana made a reference before the Presiding

Officer, Industrial Tribunal-cum-Labour Court I, vide Haryana Government

Endst. No.32410-15 dated 7.10.1995, in exercise of the power conferred by

Clause (c) of Sub-Section (1) of Section 10 of the Industrial Disputes Act,

1947 in the following terms:

"Whether there is justification in the termination of

the services of Sh. Shri Niwas and if not, to what

relief he is entitled to."

The case of the respondent before the Tribunal was that as he had

completed working for 240 days in a year, the purported order of the

retrenchment is illegal as conditions precedent therefor as contained in

Section 25F of the Industrial Disputes Act, 1947 were not complied with.

The contention of the Appellant herein, on the other hand, was that the said

respondent had worked only for 136 days during the preceding twelve

months on daily wages and had no lien over the said job.

The Tribunal upon considering all the materials placed on records by

the parties to the dispute came to the conclusion that the total number of

working days of the workman was 184 days and, thus, he having not

completed 240 days of working in a year was not entitled to any relief. The

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learned Tribunal noticed that neither the Management nor the workman

cared to produce the muster rolls with effect from August, 1994 which was

their joint liability. It was further observed that the workman even did not

summon the same although the Management had not produced the muster

rolls.

The respondent being aggrieved by and dissatisfied with the said

Award filed a writ petition before the Punjab and Haryana High Court which

was marked at CWP No.624 of 2000. Before the High Court the respondent

produced certain documents which do not appear to have been taken on

records.

The High Court opined :

"\005Be that as it may, respondent in their written

statement has accepted the fact that the petitioner

was kept on 1.1.1995 and he worked upto

16.9.1995. This span of working period as

mentioned by the respondent is of course more

than 240 days. The question is whether the

petitioner has actually worked for this period or

not."

The High Court, however, was of the view that as the Appellant

herein did not produce the relevant documents before the Industrial Tribunal,

an adverse inference should be drawn against it, as it was in possession of

the best evidence and, thus, it was not necessary for the first respondent

herein to call upon the Appellant to do so. The High Court furthermore was

of the view that the burden of proof may not be upon the Appellant but in

case of non-production of the documents, an adverse inference could be

drawn against him. Only on that basis the writ petition was allowed holding

that it could be presumed that the respondent had worked for 240 days.

Consequently the respondent was directed to be reinstated in service with

75% back wages from the date of demand.

Mr. Praveen Kumar Rai, the learned counsel appearing on behalf of

the Appellant, would submit that the High Court committed a serious error

of law insofar as it allowed the writ petition filed by the respondent herein

only on the basis of an adverse inference drawn by it by non-production of

the muster rolls.

Mr. D. K. Thakur, learned counsel appeared on behalf of the

respondent, on the other hand, would support the judgment of the High

Court.

The provisions of the Indian Evidence Act per se are not applicable in

an industrial adjudication. The general principles of it are, however

applicable. It is also imperative for the Industrial Tribunal to see that the

principles of natural justice are complied with. The burden of proof was on

the respondent herein to show that he had worked for 240 days in preceding

twelve months prior to his alleged retrenchment. In terms of Section 25-F of

the Industrial Disputes Act, 1947, an order retrenching a workman would not

be effective unless the conditions precedent therefor are satisfied. Section

25-F postulates the following conditions to be fulfilled by employer for

effecting a valid retrenchment :

(i) one month's notice in writing indicating the reasons

for retrenchment or wages in lieu thereof;

(ii) payment of compensation equivalent to fifteen days,

average pay for every completed year of continuous

service or any part thereof in excess of six months.

For the said purpose it is necessary to notice the definition of

'Continuous Service' as contained in Section 25-B of the Act. In terms of

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sub-Section (2) of Section 25-B 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. By reason of the

said provision, thus, a legal fiction is created. The retrenchment of the

respondent took place on 17.5.1995. For the purpose of calculating as to

whether he had worked for a period of 240 days within one year or not, it

was, therefore, necessary for the Tribunal to arrive at a finding of fact that

during the period between 5.8.1994 to 16.5.1995 he had worked for a period

of more than 240 days. As noticed hereinbefore, the burden of proof was on

the workman. From the Award it does not appear that the workman adduced

any evidence whatsoever in support of his contention that he complied with

the requirements of Section 25B of the Industrial Disputes Act. Apart from

examining himself in support of his contention he did not produce or call

for any document from the office of the Appellant herein including the

muster rolls. It is improbable that a person working in a Local Authority

would not be in possession of any documentary evidence to support his

claim before the Tribunal. Apart from muster rolls he could have shown the

terms and conditions of his offer of appointment and the remuneration

received by him for working during the aforementioned period. He even did

not examine any other witness in support of his case.

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 his contentions. The matter, however, would be different

where despite direction by a court the evidence is withheld. Presumption as

to adverse inference for non-production of evidence is always optional and

one of the factors which is required to be taken into consideration in the

background of facts involved in the lis. The presumption, thus, is not

obligatory because notwithstanding the intentional non-production, other

circumstances may exist upon which such intentional non-production may

be found to be justifiable on some reasonable grounds. In the instant case,

the Industrial Tribunal did not draw any adverse inference against the

Appellant. It was within its jurisdiction to do so particularly having regard

to the nature of the evidence adduced by the Respondent.

No reason has been assigned by the High Court as to why the exercise

of discretional jurisdiction of the Tribunal was bad in law. In a case of this

nature, it is trite, the High Court exercising the power of judicial review,

would not interfere with the discretion of a Tribunal unless the same is found

to be illegal or irrational.

In Mahant Shri Srinivas Ramanuj Das vs Surajanarayan Das and

Another [AIR 1967 SC 256] this court held :

"28.\005The Mahant has not come in the witness box. All

the documents have not been produced. In fact it is the

plaintiff alone who produced a number of documents but

he had picked and chosen from among the documents in

his possession. Some documents which could have

thrown some light on the question under determination

have not been produced. It is true that the defendant-

respondent also did not call upon the plaintiff-appellant

to produce the documents whose existence was admitted

by one or the other witness of the plaintiff and that,

therefore, strictly speaking, no inference adverse to the

plaintiff can be drawn from his non-producing the list of

documents. The Court may not be in a position to

conclude from such omission that those documents

would have directly established the case for the

respondent. But it can take into consideration in

weighing the evidence or any direct inferences from

established facts that the documents might have favoured

the respondent's case."

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Yet again in Smt. Indira Nehru Gandhi vs Shri Raj Narain (AIR

1975 SC 2299), law has been laid down by this Court in the following

terms :

"The third and the last and a subsidiary submission on

behalf of the election petitioner, on election expenses was

that Shri Dal Bahadur Singh not having been produced

by the original respondent, some sort of presumption

arises against the original respondent. I do not think that

it is possible to shift a burden of the petitioner on to the

original respondent whose case never was that Shri Dal

Bahadur Singh spent any money on her behalf. The case

of M. Chyenna Reddy vs Ramchandra Rao, (1972) 40

Ele LR 390 at p. 415 (SC) was relied upon to submit that

a presumption may arise against a successful candidate

from the non-production of available evidence to support

his version. Such a presumption, under Section 114

Evidence Act, it has to be remembered, is always

optional and one of fact, depending upon the whole set of

facts. It is not obligatory."

Further more a party in order to get benefit of the provisions contained

in Section 114(f) of the Indian Evidence Act must place some evidence in

support of his case. Here the Respondent failed to do so.

The High Court in support of its judgment has relied upon the

decision of this Court in Gopal Krishnaji Ketkar vs Mohamed Haji Latif

and Others [AIR 1968 SC 1413], wherein as regards the income from a

Dargah the Court amongst other evidence took into consideration the fact

that the Appellant in his evidence admitted that he had been enjoying the

income of plot in question but did not produce any account to substantiate

his contention. Despite admitting that "he had got record of the Dargah

Income and that account was kept separately" the Appellant therein had not

produced either on his own account or the account of the Dargah as to how

the income from the said plot was dealt with. This Court in Gopal Krishnaji

case (supra) did not lay down any law that in all situations the presumption

in terms of Section 114(f) of the Indian Evidence Act must be drawn.

The said decision, thus, has no application in the fact of the present case.

Curiously the respondent produced copies of some muster rolls

before this court. If he was in possession of the said documents, it betrays

one's imagination as to why the same had not been produced before the

Tribunal. As indicated hereinbefore, he filed some documents before the

High Court but the same were not accepted. The High Court, therefore,

proceeded to pass the impugned judgment only on the basis of the materials

relied on by the parties before the Tribunal. The High Court, in our opinion,

committed a manifest error in setting aside the award of the Tribunal only on

the basis of adverse inference drawn against the Appellant for not producing

the muster rolls.

For the foregoing reasons the impugned judgments are not sustainable

in law and they are set aside accordingly.

These appeals are allowed. In the facts and circumstances of this

case, there shall be no order as to costs.