The Honourable Mr v. The Presiding Officer

In the High Court of Judicature at MadrasDated: 9.1.2007Coram:The Honourable Mr.Justice M.E.N.PATRUDUWrit Petition No.35216 of 2004Mohammed Abdul Malik ... PetitionerVs1. The Presiding Officer, IInd Additional Labour Court, Chennai.2. T.Karunakaran.... RespondentsWrit Petition filed under Article 226 of the Constitution of Indiapraying to issue a Writ of Certiorari to call for the entire recordsculminating in the passing of the Award dated 28.9.2004, passed by thefirst Respondent herein, made in C.P.No.205 of 1998, quash the same.For Petitioners..Mr.GuptaFor Respondents..Mr.R.Lawrence for R2.*******O R D E RThe petitioner is questioning the Award of the first Respondent thePresiding Officer of the II Additional Labour Court, Chennai in C.P.No.205of 1998.2. Briefly the facts are:- The petitioner is having a shop and he isdoing business in garments. The second Respondent hereinafter referred toas workman worked as Part-Time employee as Quality Control Inspector.According to the petitioner, the workman stopped offering his serviceswith effect from 31.8.1997 and left the services of the petitioner. Butthereafter, he issued a legal notice on 12.1.1998 claiming Rs.12,000/- assalary payable to him from September to December 1997 at the rate ofRs.3,000/- per month and after issuance of the legal notice he filed apetition under Section 33(c)(2) of the Industrial Disputes Act claimingthe following:- https://hcservices.ecourts.gov.in/hcservices/ (a) Wages unpaid for the period from Rs. Ps. 1.9.97 to 31.12.97 for 4 months at Rs.3,000/- consolidated amounting to ..12,000.00(b) Overtime wages for the period from 1.4.92 to 31.8.97 for 65 months at Rs.3,000/- consolidated per month, at 4 hours extra overtime was done, amount to .. 1,95,000.00(c) Provident fund for the period from 1.4.92 to 31.8.97 for 65 months at Rs.3000/- at 10% of wages of employees' contribution amounting to .. 19,500.00(d) Provident fund for the period from 1.4.92 to 31.8.97 for 65 months at Rs.3,000/- at 10% of wages of employees' contribution amounting to .. 19,500.00(e) Leave wages unpaid for the period from 1.4.92 to 31.8.97 for 65 months for 195 days at Rs.100/- per day or Rs.3,000/- p.m amounting to .. 19,500.00(f) Bonus for the year 1996-97 for one year at Rs.3,000/- at 8.33% amounting to .. 3,000.00 -------------Grand Total .. 2,68,000.00 -------------3. The Labour Court has numbered the dispute as C.P.No.205 of 1998 andclaim statement and counter statements were filed and the petitionerdisputed about the amounts and after enquiry, the Labour Court, by theimpugned Award directed the petitioner to pay Rs.2,13,000.00 under thehead of unpaid salary for the period from 1.9.97 to 31.12.97 and overtimewages for 60 months at the rate of Rs.3,000/- per month and Leave Salaryfor a period from 1.4.92 to 31.12.97 and bonus for the year l996-97. 4. The contention of the petitioner is that there is no evidencebefore the Labour Court to award the above amount and not even a singledocument was produced on behalf of the workman to substantiate his claim.Therefore, the award is liable to be set aside. The forcible contentionof the learned counsel for the petitioner is that there is no evidence onbehalf of the workman. It is also contented that the Court below hasawarded the amount of compensation on stray admissions of the witnesses on https://hcservices.ecourts.gov.in/hcservices/ behalf of the petitioner his Manager. It is also stated that the LabourCourt has directed the petitioner to produce certain documents and as thepetitioner is not having those documents the same fact has been conveyed.But yet the Labour Court drawn an adverse inference against the petitionerand passed the award. 5. A counter affidavit is filed by the workman. The contention of theworkman, the second respondent is that he entered into service of thepetitioner/employer on 2.3.1992 as Garment Inspector and worked till31.12.1997 and the petitioner refused to employ the workmen from31.12.1997 and he was not paid his earned wages for the period from1.9.1997 to 31.12.1997 for four months at the rate of Rs.3,000/- per monthamounting to Rs.12,000/- and the workman was also not paid overtime wagesfor the period from 1.4.92 to 31.8.97 for 65 months at the rate ofRs.3,000/- per month and he was not paid his P.F contributions for theperiod from 1.4.1992 to 31.8.1997 and he was not paid his earned leavewages for 65 months for 195 days and he was not paid bonus for the year1996-97 at the rate of Rs.3,000/- and therefore, the total amount payableby the petitioner to the workman is Rs.2,68,500/- and the same is claimedand the Labour Court has awarded the amounts as per the evidence on recordand the award is legal. 6. ARGUMENTS:-Heard the arguments of both sides.7. POINT:-The point for determination is:"Whether the Award of the Labour Court is justified."8. THE POINT:-Perused the Award of the Labour Court. The workman examined himselfas WW1 and the Manager of the petitioner is examined as MW1. On behalf ofthe workman four documents have been marked and they are, Ex.P1 is thelegal notice sent by the workman and Ex.P2 is the copy of the letterwritten by the workman to the petitioner. Ex.P3 is the postalacknowledgement and Ex.P4 is the complaint given by the workman to theAssistant Commissioner of Police. On behalf of the Management only onedocument is marked which is Ex.R1 copy of the notice sent to the workman.9. Thus, it is clear that except oral evidence of the workman and thelegal notice and a letter of workman there is no other document on behalfof the workman either to prove that he was appointed by the petitioner ashis employee on payment of salary of Rs.3,000/- per month. So also, thereis no document on behalf of the workman to show that the workman hasworked overtime and he is entitled for particular amount either in a monthor lumpsum. There is not even single document to show the number of hoursthe workman worked and the period the workman was actually worked. https://hcservices.ecourts.gov.in/hcservices/ Similarly there is no document to prove either P.F. contributions by theworkman and earned leave salary etc.10. In this case another vital point to be noted is that the workmanhas issued Ex.P1 the legal notice and he as confined his claim toRs.12,0000/- i.e. salary for four months at the rate of Rs.3,000/- permonth. The workman did not claim either overtime or the leave salary orthe P.F. contributions or Bonus etc. in this earliest document. Having notclaimed any of those amounts at the earlier stage the workman has put up aplea of claim for the first time before the Labour Court and the Courtbelow erroneously accepted the said claim without any document and in theabsence of trustworthy evidence. Except oral statement of P.W.1, there isno other evidence before the Court below. However, there is strayadmission of RW1 who is no other than co-employee of workman.11. In the instant case the employment of workman with the petitionerwas established and the petitioner has stated that the workman stoppedoffering his services. Since it is admitted on behalf of the petitionerin writing, the "contract of employment" is established between theworkman and the petitioner. 12. However, the petitioner did not admit in writing that the workmanhas worked for overtime. There is a specific denial. 13. In fact before the Labour Court the averments of the counter arementioned in para 3. As per the counter of the petitioner before theLabour Court only two employees are engaged in his business and theworkman is only on a Part-Time basis and he was paid wages on piece ratebasis for the work done by him. Except this admission, there is no otheradmission on behalf of the petitioner through his counter. 14. But, the Labour Court has awarded overtime wages, leave salary asif the workman is a regular employee. More so, in the absence of anyappointment order or salary slip disclosing the monthly salary. 15. Thus, there is no evidence before the Labour Court to hold thatthe workman is a regular employee of the petitioner or he workedcontinuously as permanent employee and he used to draw the salary ofRs.3,000/- per month and he has worked overtime and that the workman didnot receive overtime wages. When the petitioner has taken a specific pleathat the workman is not a regular employee and he has not received anysalary and he used to receive only wages on the piece rate basis and hehas not worked for overtime and there is no P.F contribution as P.F. Actis not applicable in his establishment, and the Pension Act is also notapplicable as there are only two employees working with him and theworkman was not his employee the Court below should have considered thesefacts. While discussing the point the Labour Court stated that theworkman worked as a Garment Checker with the petitioner, there is noappointment order to come to that conclusion. Even the evidence of R.W.1discloses that the workman worked as a Part-Time Quality Control Inspector https://hcservices.ecourts.gov.in/hcservices/ on a piece rate employee. The Labour Court passed an Award against thepetitioner stating that the Proprietor has not produced any document toprove that the workman has not worked as regular employee with him and heworked as Part-Time piece rate employee and on that basis an adverseinference is drawn. This is hopelessly bad conclusion of the LabourCourt. 16. In Surendranagar District Panchayat v. G.Laljibhai (2006(4)L.L.N186) the Supreme Court held as follows:-"8. In Municipal Corporation Faridabad v. Siri Niwas [2004(4)L.L.N. 785], it was held that the burden was on the workman toshow that he was working for more than 240 days in the precedingone year prior to his alleged retrenchment. In Madhya PradeshElectricity Board v. Hariram [2004 (4) L.L.N.839], the positionwas again reiterated as follows, in para 11, at page 842:"The above burden having not been discharged and the LabourCourt having held so, in our opinion, the Industrial Court andthe High Court erred in basing an order of reinstatement solelyon an adverse inference drawn erroneously. At this stage it maybe useful to refer to a judgment of this Court in the case ofMunicipal Corporation Faridabad v. Siri Niwas [2004(4)L.L.N.785] (vide supra), wherein this Court disagreed with the HighCourt's view of drawing an adverse inference in regard to thenon-production of certain relevant documents. This is what thisCourt had to say in that regard, in Para.15, at page 788:'A Court of law even in a case where provisions of the IndianEvidence Act apply, may presume or may not presume that if aparty despite possession of the best evidence had not producedthe same, it would have gone against his contentions. Thematter, however, would be different where despite direction by aCourt the evidence is withheld. Presumption as to adverseinference for non-production of evidence is always optional andone of the factors which is required to be taken intoconsideration is the background of facts involved in the lis.The presumption, thus, is not obligatory because notwithstandingthe intentional non-production, other circumstances may existupon which such intentional non-production may be found to bejustifiable on some reasonable grounds. In the instant case,the Industrial Tribunal did not draw any adverse inferenceagainst the appellant. It was within its jurisdiction to do soparticularly having regard to the nature of the evidence adducedby the respondent.'10. In a recent judgment in //R.M.Yellatti v. TheAsst.Executive Engineer// [2006 (1) L.L.N.7], the decisionsreferred to above were noted and it was held as follows:"Analyzing the above decisions of this Court, it is clear thatthe provisions of the Evidence Act in terms do not apply to theproceedings under S.10 of the Industrial Disputes Act. However,applying general principles and on reading the aforestated https://hcservices.ecourts.gov.in/hcservices/ judgments, we find that this Court has repeatedly taken the viewthat the burden of proof is on the claimant to show that he hadworked for 240 days in a given year. This burden is dischargedupon the workman adducing cogent evidence, both oral anddocumentary. In cases of termination of services of daily wagedearner, there will be no letter of appointment or termination.There will also be no receipt or proof of payment. Thus in mostcases, the workman (claimant) can only call upon the employer toproduce before the Court the nominal muster roll for the givenperiod, the letter of appointment or termination, if any, thewage register, the attendance register etc. Drawing of adverseinference ultimately would depend thereafter on facts of eachcase. The above decisions however make it clear that mereaffidavits or self-serving statements made by theclaimant/workman will not suffice in the matter of discharge ofthe burden p[laced by law on the workman to prove that he hadworked for 240 days in a given year. The above judgmentsfurther lay down that mere non-production of muster-rolls per sewithout any plea for suppression by the claimant workman will bethe ground for the Tribunal to draw an adverse inference againstthe management. Lastly, the above judgments lay down the basicprinciple, namely, that the High Court under Art. 226 of theConstitution will not interfere with the concurrent findings offact recorded by the labour Court unless they are perverse.This exercise will depend upon facts of each case."11. The above position was again reiterated in a recentjudgment in Chairman Oill and Nataural Gas Corporation, Ltd.,and another v. Shyamal Chandra Bhowmik [2006(1) L.L.N.91]12. It was held in all these cases that the burden of prooflies on the workman to show that he had worked continuously for240 days for the preceding one year and it is for the workman toadduce evidence apart from examining himself to prove the factumof being in employment."17. Thus, the apex Court has clarified through several pronouncementsthat the burden lies always on the workman to prove that he has worked asemployee and he has drawn particular salary as regular employee and hewas discharged from service or dismissed from service and he is entitledfor relief sought for. In the instant case there is no evidence in thisrespect. There is no evidence that documents are suppressed. Hencedrawing adverse inference is bad in law. https://hcservices.ecourts.gov.in/hcservices/

18. For the foregoing reasons, this Court comes to a conclusion thatthere is no evidence on behalf of the workman to prove his claim and theLabour Court has erroneously awarded the amount therefore, the Award ofthe Labour Court is liable to be set aside and accordingly the writpetition is allowed. No costs.gr.Sd/-Assistant Registrar/true copy/Sub Assistant Registrar.ToThe Presiding Officer, IInd Additional Labour Court,Chennai.+ One cc to m/s Gupta & Ravi Advocate SR 1744+ One cc to M/s R/ Lawrence Advocate SR 1895AVM (co)sg 19/01/07 ORDERIN W.P.No.35216 of 200409.01.2007