# Ganga Ram v. Labour Court, Allahabad and Others

- **Citation:** (2013) 1 ILRA 241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-06
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganga-ram-v-labour-court-allahabad-and-others-42455
- **Pages:** 3

## Headnote

Industrial Dispute Act 1947, Section 6-Nretirement
of
workman/petitioner
without following principle of "First
Came
last
go"-before
Labor
Court
workman
filed
resolution
by
which
engaged-completed
240
days-filed
application
to
summon
the
original
record-employer failed to produce-Labor
Court
committed
great
illegality
by
saying
workman
nor
discharge
its
burden to proof-whereas in plaint-in
examination in chief supported with
document
stated
about
240
days
working -not controverted in crossexamination-it
is
for
employer
to
discharge the burden of proof-order
quashed
-matter
remitted
back
for
reconsideration within 4 month

Held: Para-11

 In the light of the aforesaid, the Court
finds, that the initial burden to prove a
fact, was upon the petitioner, which had
been done substantially and thereafter
the onus shifted upon the employer,
which,
in
the
instance
case,
an
opportunity was given and which the
employers
failed
to
discharge.
Consequently, the finding of the Labour
Court, that the burden to prove the fact
was not discharged by the petitioner was
patently erroneous. The best evidence,
namely, the resolutions of the Nagar
Panchayat
and
the
Payment
and
Attendance
Register
was
with
the
employers. The petitioner had no access
to it. If the employer failed to produce
the documents, which are in their
custody, adverse inference had to be
drawn against the employers.

## Text

1 All] Ganga Ram Vs. Labour Court, Allahabad and Others
241
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA,J.

CIVIL MISC. WRIT PETITION NO. 20576
of 2009

Ganga Ram

...Petitioner
Versus
Labour Court, Allahabad and others

 ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Singh

Counsel for the Respondents:
Sri Pramod Kumar Srivastava

Industrial Dispute Act 1947, Section 6-Nretirement
of
workman/petitioner
without following principle of "First
Came
last
go"-before
Labor
Court
workman
filed
resolution
by
which
engaged-completed
240
days-filed
application
to
summon
the
original
record-employer failed to produce-Labor
Court
committed
great
illegality
by
saying
workman
nor
discharge
its
burden to proof-whereas in plaint-in
examination in chief supported with
document
stated
about
240
days
working -not controverted in crossexamination-it
is
for
employer
to
discharge the burden of proof-order
quashed
-matter
remitted
back
for
reconsideration within 4 month

Held: Para-11

 In the light of the aforesaid, the Court
finds, that the initial burden to prove a
fact, was upon the petitioner, which had
been done substantially and thereafter
the onus shifted upon the employer,
which,
in
the
instance
case,
an
opportunity was given and which the
employers
failed
to
discharge.
Consequently, the finding of the Labour
Court, that the burden to prove the fact
was not discharged by the petitioner was
patently erroneous. The best evidence,
namely, the resolutions of the Nagar
Panchayat
and
the
Payment
and
Attendance
Register
was
with
the
employers. The petitioner had no access
to it. If the employer failed to produce
the documents, which are in their
custody, adverse inference had to be
drawn against the employers.

(Delivered by Hon'ble Tarun Agarwala,J.)

1. List has been revised. The learned
counsel for the respondent is not present.

2. Heard Sri Rajesh Kumar Singh,
the learned counsel for the petitioner.

3. The petitioner is a workman,
appointed as an electrician, in the Nagar
Panchayat, Handia and his services were
arbitrarily dispensed with on 1.7.2001.
Accordingly, the petitioner raised an
Industrial Dispute, which was referred to
the
Labour
Court,
Allahabad
for
adjudication. The terms of the reference
order was whether the employers were
justified in terminating the services of the
workman w.e.f. 1.7.2001 ? If not, to what
relief the workman was entitled to.

4. Before the Labour Court the
petitioner
contended
that
he
was
appointed on 27.1.1998 and had worked
continuously without any break in service
till he was removed on 1.7.2001. The
petitioner categorically stated that he had
completed 240 days of continuous service
in a calendar year and that while
dispensing his services, the provisions of
Section 6-N of the U.P. Industrial
Disputes Act had not been complied with.
Further, juniors to the petitioner, who
were similarly situated, were continuing
in
service
and
that
the
principle
242 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
enunciated under Section 6-P, namely,
"last come first to go" had also not been
adhered to. The petitioner contended that
the services of the petitioner has been
dispensed with in violation of the U.P.
Industrial Disputes Act and therefore, he
should be reinstated with continuity of
service and with back wages.

5. The respondents filed a written
statement
and
contended
that
the
petitioner was never appointed in a
permanent capacity nor in a regular
capacity but admitted that the petitioner
was appointed for a limited part of time
on exigencies of work on a daily rate
basis. The respondents denied the fact that
the petitioner had worked for more than
240 days in a calendar year.

6. In support of his case, the
petitioner
filed
various
documents,
namely,
resolutions
of
the
Nagar
Panchayat to indicate, that a decision was
taken to appoint the petitioner as an
electrician. There is another resolution of
the Nagar Panchayat indicating that the
petitioner's services on daily wage basis
be regularized. The Court finds, that the
petitioner had filed an application praying
that the original resolution of the Nagar
Panchayat should be placed by the
respondents and that the attendance and
payment register for the year 1999, 2000
and 2001 be also placed for perusal of the
Labour Court to verify as to whether the
petitioner had worked and had been paid
for the period in question.

7. Inspite of the application being
filed and inspite of the direction being
issued by the Labour Court to the
respondent Nagar Panchayat, to produce
the record, the same was not done. The
Labour Court also debarred the employer
from cross-examining the workman.

8. The Labour Court, after hearing
the parties, rejected the claim of the
petitioner, on the ground, that no cogent
proof of his working as an electrician, nor
proof of the fact that he had worked for
240 days in a calendar year, was filed and
accordingly dismissed the claim of the
petitioner.

9. Having heard the learned counsel
for the petitioner at some length, the
Court finds, that the Labour Court
committed a manifest error in rejecting
the claim of the petitioner and in placing
the burden entirely upon the workman.
No doubt, it is a settled principle of law,
that the burden to prove the case is upon
the plaintiff, namely, the workman in the
instant case who has filed the claim
before the Labour Court. In the instant
case, the petitioner has filed a copy of the
resolution of the Nagar Panchayat and has
also proved this resolution in his
evidence-in-chief
indicating
that
the
Nagar Panchayat had passed a resolution
for appointing the petitioner as an
electrician on daily wage basis. To this
extent the petitioner has proved his case
that he was appointed as an electrician.
However, the petitioner had contended
that he had worked continuously for more
than 240 days in a calendar year. This fact
has been stated in his written statement
and has also been stated in his evidence,
which has not been rebutted in his crossexamination.

10. In support of his stand, the
petitioner had also filed an application
seeking a direction that the Nagar
Panchayat be directed to produce the
original record, namely, the original
1 All] Arun Kumar Vs. D.I.O.S. And Others
243
resolutions, as well as the attendance and
payment register to prove the fact that the
petitioner
had
worked
continuously
without break in service for the period
1999, 2000 and 2001. Inspite of a
direction being given by the Labour
Court, no record was produced.

11. In the light of the aforesaid, the
Court finds, that the initial burden to
prove a fact, was upon the petitioner,
which had been done substantially and
thereafter the onus shifted upon the
employer, which, in the instance case, an
opportunity was given and which the
employers
failed
to
discharge.
Consequently, the finding of the Labour
Court, that the burden to prove the fact
was not discharged by the petitioner was
patently erroneous. The best evidence,
namely, the resolutions of the Nagar
Panchayat
and
the
Payment
and
Attendance
Register
was
with
the
employers. The petitioner had no access
to it. If the employer failed to produce the
documents, which are in their custody,
adverse inference had to be drawn against
the employers.

12. In the light of the aforesaid, the
Court is of the opinion that the impugned
award cannot be sustained and is quashed.
The writ petition is allowed and the
matter is remitted to the Labour Court
again to re-decide the matter from the
stage where it had left within four months
from the date of the production of a
certified copy of this order. Even though
the employers were debarred from crossexamining the petitioner, it would be open
to the parties to file fresh evidence in
support of their case
---------

 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR,J.

Civil Misc. Writ Petition No. 22263 of 2007

Arun Kumar

...Petitioner
Versus
D.I.O.S And Others
 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.
Sri Alok Dwivedi
Sri P.C. Shukla

U.P. Intermediate Education Act 1921Regulation
101,
Chapter
IIIappointment of peon in recognized-aided
intermediate college-approval refused in
garb of G.O. Dated 09.02.2007-which
requires approval from Chief Ministerheld-G.O. Illegal, contrary to statutory
provisions-quashed-consequential
directions given.

Held: Para-6
Thus where a particular authority has
been mentioned in the Regulations and
conferred with the power of granting
approval for recruitment of class III and
class IV, that authority can not be
divested of that power, nor can that
power
be
usurped
by
any
other
authority, be it the Chief Minister, except
by way of amendment of the existing
statutory rules. In the present case the
alleged G.O. dated 9.2.2007 is only an
Executive Order and as held by the
Supreme Court in the case of Naseem
Bano (supra), Executive Orders will not
supersede the statutory rules.
Case Law discussed:
1993 Supp (4) Supreme Court Cases 46; 2004
(2) CRC 664; 1995 Supp (3) Supreme Court
Cases 332; (1997) 4 SCC 301