HARYANA AT CHANDIGARH SMT. SHAKUNTLA DEVI CWP-28344-2019 Date of decision: July 16 & Anr. v. Dahyabhai Amarsinh

CORAM: HON'BLE MS. JUSTICE KIRTI SINGH Present: Mr. Tara Chand Dhanwal, Advocate for the petitioner. Mr. Rajesh Hooda, Advocate for respondent No.2. **** KIRTI SINGH, J. (ORAL)

#1. The instant petition has been filed under Articles 226/227 of the Constitution of India seeking quashing/modifying the impugned award dated

01.06.2017 (Annexure P-11), passed by learned Industrial Tribunal, Hisar whereby the claim of the petitioner for reinstatement with back wages and continuity in service has been rejected.

#2. Learned counsel for the petitioner submits that the petitioner had continuously worked with the respondent-department as a Beldar-cum- Mali from 01.04.1994 till 06.02.2013 and had completed well over 240 days of continuous service in the twelve calendar months preceding the alleged termination. Her services, however, were brought to an end orally on

07.02.2013 without issuance of any notice, payment of notice pay or retrenchment compensation, in complete violation of the mandatory CWP-28344-2019 -2- provisions of the Industrial Disputes Act. It is thereafter contended that the learned Tribunal erred in placing undue reliance upon quotations, bills and cashbook entries pertaining only to the period from June, 2010 to November, 2011 to conclude that the petitioner was engaged merely as a contractor. Moreover, despite being in possession of the record for the relevant period for determining compliance with Section 25-F, respondent No.2-department failed to produce the corresponding bills, quotations or other contemporaneous documents, thereby inviting an adverse inference against it. It is lastly argued that the respondent department retained persons junior to the petitioner and continued to engage fresh labour after dispensing with her services and without offering her re-employment, thereby violating Sections 25-G and 25-H of the Act. The findings recorded by the Tribunal are, therefore, contrary to the evidence on record and warrant interference under Articles 226 and 227 of the Constitution of India.

#3. Per contra, learned counsel for respondent No.2 submits that the Labour Court, upon appreciation of the entire oral and documentary evidence, rightly concluded that the petitioner failed to establish an employer-employee relationship or that she had worked as a Beldar-cum- Mali from 01.04.1994 to 06.02.2013. On the contrary, the record, including the quotations admittedly bearing the petitioner's thumb impressions, the corresponding bills and cash book, clearly demonstrates that she executed works as a contractor under the name "Shakuntla w/o Jai Narain & Party" and received payments on quotation basis, not as a workman. The original muster rolls from April 2010 to December 2013 did not contain her name, and the petitioner failed to produce any evidence to establish completion of 240 days' continuous service in the twelve months preceding the alleged CWP-28344-2019 -3- termination. Consequently, the relevant provisions of the Industrial Disputes Act were not attracted, which was the finding recorded by the learned Tribunal.

#4. Having heard learned counsel for the parties and perused the record, this Court finds no ground to interfere with the impugned award.

#5. Before proceeding further, a gainful reference can be made to the proposition of law as discussed by the Hon’ble Supreme Court in Civil Appeal No.6511 of 2005 titled as Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, relevant paras whereof reads thus:- “8. As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act). Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of nonrenewal of the contract of employment; or iv) termination of the service on the ground of continued ill-health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act. The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely :- i) One month's clear notice in writing indicating the reasons for retrenchment or that the workman has been paid wages for the period of notice in lieu of such notice; payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part thereof, in excess of six months; a notice to the appropriate Government in the prescribed manner. iii) To attract the provisions of Section 25F, one of the conditions required is 9. that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport ii) CWP-28344-2019 -4- of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorised leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workman shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of sub- section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Subsection (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of sub-section (2). By the legal fiction of sub-section 2(a) (i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workman has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F. 16. In Mohan Lal v. Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225, it is said by this Court that before a workman can claim retrenchment not being in consonance of Section 25F of the Industrial Disputes Act, he has to show that he has been in continuous service of not less than one year with the employer who had retrenched him from service. In Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 - (At Page 26, 17. Para 3), this Court held that "In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside." 19. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no coworker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. CWP-28344-2019 -5- The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workman- respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards noncompliance of Sections 25G and 25H suffice is to say that witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The Courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the Court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved.”

#6. Reverting to the case in hand, the learned Tribunal, upon appreciation of the oral and documentary evidence, returned a categorical finding that the petitioner had failed to establish that she had been engaged as a Beldar-cum-Mali by the respondent-department. On the contrary, material produced by the respondent-department demonstrated that the petitioner had executed works through quotations in the name of “Shakuntla W/o Jai Narain & Party” and received payment thereunder. Significantly, during her cross-examination, the petitioner admitted her thumb impressions on the quotations and also acknowledged receipt of payments pursuant thereto. The muster rolls produced for the relevant period also did not record her engagement as a worker. These findings are founded on evidence and cannot be said to be either perverse or unsupported by the record.

#7. The contention that the respondent withheld the record for the period immediately preceding the alleged termination is equally devoid of merit. The Tribunal has specifically noticed that no material was shown to have been deliberately withheld and that the record prior to March, 2010 had CWP-28344-2019 -6- already been weeded out in accordance with the applicable record retention policy. More importantly, the petitioner herself failed to discharge the burden of prima facie establishing that she had actually worked for 240 days in the twelve calendar months preceding the alleged termination, which was an essential prerequisite for invoking Section 25-F of the Act.

#8. In the considered opinion of this Court, the findings recorded by the learned Tribunal are thus based upon a proper appreciation of the evidence on record. Trite to say that this Court while exercising jurisdiction under Articles 226/227 of the Constitution of India does not sit as an Appellate Court to re-appreciate factual findings in the absence of any manifest illegality or perversity. The petitioner has failed to demonstrate any jurisdictional error, violation of principles of natural justice or patent illegality, warranting any interference by this Court.

#9. Consequently, finding no merit in the present writ petition, the same is hereby dismissed.

#10. Pending miscellaneous application(s), if any, also stands disposed of. July 16, 2026 Ithlesh Whether speaking/reasoned:- Yes/No Yes/No Whether reportable: (KIRTI SINGH) JUDGE