# M/s Triveni Engineering & Industries Ltd v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1665
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-31
- **Case number:** Writ C No. 60572 of 2011
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-triveni-engineering-industries-ltd-v-state-of-u-p-ors-44626
- **Pages:** 23

## Headnote

A. Labour law - Sugar Factories Standing
Order notified under Section 3 (b) of the
U.P. Industrial Disputes Act, 1947 - Clause
K - Claim of Re-employment - To claim Reemployment as a seasonal workman the
factum of having worked for whole of
second half of last preceding season is
necessary. (Para 36)
B. Labour law - Sugar Factories Standing
Order - Clause A5 - Meaning of expression
''season'' - Expression ''season'' means the
period commencing from the date when
the crushing commences till the date when
the crushing ends. (Para 14)
Held -

## Text

_Characters 0–39,795 of 76,204. This is a partial read: ask again with offset=39795 for what follows._

2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1665
representation before the respondent no.
3.

11. The writ petition is an attempt to
settle a private dispute with the respondent
no. 4 under Article 226 of the Constitution
of India and the averments made in the writ
petition as well as the argument are nothing
but a disguised attempt to rope the
respondent no. 3 for settlement of a private
dispute with the respondent no. 4. It is well
settled
that
a
writ
petition
is
not
maintainable against a private respondent.
The relief claimed in the petition as well as
before the respondent no. 3 is essentially a
private dispute with the respondent no. 4
who is not the State within the meaning of
Article 12. Thus, the writ petition is not
maintainable for the reliefs claimed and is,
accordingly, dismissed.

12. The petitioner may avail of such
remedy as may be available to him before
any other adjudicatory forum.

13. The petition is dismissed.
----------

(2019)10ILR A 1665

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 60572 of 2011

M/s Triveni Engineering & Industries
Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.D. Singh, Sri Diptiman Singh.

Counsel for the Respondents:
C.S.C., Sri Anoop Trivedi, Sri Ram
Prakash.

A. Labour law - Sugar Factories Standing
Order notified under Section 3 (b) of the
U.P. Industrial Disputes Act, 1947 - Clause
K - Claim of Re-employment - To claim Reemployment as a seasonal workman the
factum of having worked for whole of
second half of last preceding season is
necessary. (Para 36)
B. Labour law - Sugar Factories Standing
Order - Clause A5 - Meaning of expression
''season'' - Expression ''season'' means the
period commencing from the date when
the crushing commences till the date when
the crushing ends. (Para 14)
Held -
14. ... The conditions of service of workmen
engaged in the petitioner's sugar unit are governed
in terms of the Sugar Factories Standing Orders
notified under Section 3 (b) of the U.P. Industrial
Disputes Act, 1947. Clause A5 of the Sugar
Factories Standing Orders defines the expression
''season'' as meaning the period commencing from
the date when the crushing commences till the date
when the crushing ends. The classification of
workmen is provided for under Clause B which
includes seasonal workmen as one of its categories
and the expression ''seasonal workman'' has been
defined under Clause B (II).
C. Rule of Evidence - Burden of proof - It
is the legal obligation on a party to prove
allegation made by him - Principle is
associated
with
maxim
'Semper
necessitas probandi incumbit ei qui agit'
which means the burden of proof is on
the claimant - Held, Burden of proof is
clearly on the workman to establish his
entitlement. (Para 32 & 39)
Held :-
39. The burden of proof in this regard is
clearly on the workman in order to establish
1666 INDIAN LAW REPORTS ALLAHABAD SERIES
his entitlement to be reengaged during the
succeeding crushing season. In the present
case no evidence having been led by the
respondent workman to discharge the burden
of proof in this regard, the finding returned by
the Labour Court cannot be supported.

D. Rule of Evidence - Distinction between
Burden of proof and Onus of proof -
Burden of proof lies upon person who
has to prove a fact and it never shifts,
however shifting of onus of proof is a
continuous process. (Para 33)

Writ Petition allowed (E-1)

Case relied on :-

1. Range Forest Officer Vs S.T. Hadimani
(2002) 3 SCC 25.
2. Raj. St. Ganganagar Sugar Mills Ltd. Vs St.
of Raj. & ors. (2004) 8 SCC 161.
3. Municipal Corp. Faridabad Vs Siri Niwas
(2004) 8 SCC 195.
4. M.P. Electricity Board Vs Hariram (2004) 8
SCC 246.
5. Manager, R.B.I. Bangalore Vs S. Mani & ors.
(2005) 5 SCC 100.
6.
Surendranagar
District
Panchayat
Vs
Dahyabhai Amarsingh (2005) 8 SCC 750.
7. R.M. Yellatti Vs Assistant Executive Engineer
(2006) 1 SCC 106.
8. Ranip Nagar Palika Vs Babuji Gabhaji
Thakore & ors. (2007) 13 SCC 343.
9. Sub Divisional Engineer Irrigation Project
Yavatmal Vs Sarant Marotrao Gurnule 2009
(120) FLR 114.
10. Haridwar Vs Smt. Kulwant 2013 (6) ADJ
485.
11. Rangammal Vs Kuppuswami & ors. (2011)
12 SCC 220.
12. A. Raghavamma & ors. Vs A. Chenchamma
& ors. AIR 1964 SC 136.
13. Batala Cooperative Sugar Mills Ltd. Vs
Sowaran Singh (2005) 8 SCC 481.
14. M/s Triveni Engineering and Industries Ltd.
Vs St. of U.P. & ors. (Writ Petition No. 60160
of 2005, decided on 4.3.2008).
15. U.P. St. Sugar Corp. Ltd. Vs Niraj Kumar &
ors. (2009) 14 SCC 712.
16. Kisan Sahakari Chini Mills. Ltd. & ors. Vs
Awadesh Singh & ors. 1993 (67) FLR 602.

Cases referred:-

1. Morinda Cooperative Sugar Mills Ltd. Vs
Ram Kishan & ors. (1995) 5 SCC 653

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Diptiman Singh,
learned counsel for the petitioner and Sri
Ram Prakash Pandey, learned counsel
appearing for the respondent no. 3.

2. The present petition seeks to
challenge the award of the Labour Court
U.P. Saharanpur dated 30.3.2011 passed
in Adjudication Case No. 14 of 2006 in
the matter of M/s Triveni Engineering and
Industries Limited (Sugar Unit) Khatauli
and Sant Ram in terms of which the
Labour Court has granted the relief of
reinstatement to the respondent-workman
on the post of Seasonal Weighment Clerk
with continuity of service from the season
2004-05 onwards with full back wages
and consequential reliefs.

3. Briefly stated the facts of the case
are as follows :-

4. Upon an industrial dispute having
been raised by the respondent no. 3workman, the State Government, on
31.12.2005, made a reference under
Section 4-K of the U.P. Industrial
Disputes Act, 1947 (in short 'the Act')
which was registered as Adjudication
2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1667
Case No. 14 of 2006 by the Labour Court
U.P. Saharanpur. The question which was
referred for adjudication is as follows :-

"क्ा
 ेवायोिक
द्वारा
अपने
कमचारी श्री िंतराम पुत्र श्री कालीचरण,
 ीिनल कमचारी की ेवायें ीिन वर्च
२००४-०५ के प्रारम्भ े माप्त जकया िाना
उजचत एविं वैधाजनक है। यजद नहीिं तो म्बिंजधत
कमचारी क्ा जहतलाभ/ अनुतोर् पाने का
अजधकारी है एविं अन्य जक जववरण जहत ?"

5. In support of his case, the
respondent no. 3-workman filed his
written statement on 25.5.2006 claiming
that he had been appointed as Seasonal
Weighment
Clerk
in
the
petitioner
establishment during the crushing season
1999-2000. He claimed that he had been
called for work by written intimation sent
by post by the petitioner establishment
upto the season 2003-2004; however he
was denied work from the season 20042005.

6. The petitioner also filed his
written statement on the same date stating
therein that the respondent-workman had
never been engaged by the petitioner
establishment in any capacity during any
crushing season. An alternative plea was
also taken that the respondent-workman
may have been engaged by a registered
contractor namely M/s Pilania Security
and Allied Services, Ghaziabad as per the
terms of the Contract Labour (Regulation
& Abolition) Act, 1970. The petitioner
pleaded
lack
of
master-servant
relationship
between
the
petitioner
establishment and respondent no. 3.

7. Rejoinder statements were filed
by both the respondent-workman and the
petitioner reiterating their assertions made
in the written statements. No documentary
evidence was filed by the respondentworkman in support of his claim.

8.

The
respondent-workman
appeared as a witness and recorded his
statement before the Labour Court on
10.7.2008 and 26.3.2009. In his oral
testimony it was stated by him that he had
been called for work from the season
1999-2000 upto the season 2003-2004
and from the season 2004-2005 he was
not called for work. In his crossexamination it was stated that he had not
retained copies of the forms which had
been filled by him when he had been
called for the seasonal engagement.

9. On behalf of the petitioner
establishment, the Time Keeper, appeared
before the Labour Court and in his oral
testimony it was stated by him that the
respondent-workman had never worked for
the petitioner-establishment as a seasonal
employee. It was further stated by him that in
support of the aforesaid assertion he had
brought with him the original records
pertaining to the payments made by the
petitioner-establishment during the season
1999-2000 and thereafter from 2002-2004,
and he had also brought with him the pay
register containing the details of payment of
the retaining allowance. The employer's
witness also proved the documents (Ex.1)
which had been filed by the petitioner
establishment along with the list of
documents (List 11-B1) containing the
details of the workers engaged by M/s
Pilania Secruity and Allied Services Private
Ltd. which included the name of the
respondent-workman Sant Ram at serial no.
54.

10. Contention of the counsel for the
petitioner is that the respondent-workman
1668 INDIAN LAW REPORTS ALLAHABAD SERIES
did not adduce any evidence nor did he
discharge the burden to prove the existence
of master- servant relationship with the
petitioner establishment. On the contrary the
petitioner
establishment
had
adduced
documentary evidence in the form of pay
register, attendance register and also
documents of the registered contractor M/s
Pilania Secruity and Allied Services Private
Ltd. to establish the non-existence of
master-servant relationship between the
petitioner establishment and the respondentworkman. It is submitted that from the
documentary and oral evidence adduced by
the petitioner establishment it was proved
that the respondent-workman was never
engaged by the petitioner in any capacity
during any season. It was further submitted
that the burden of proving the masterservant relationship was on the workman
which he failed to discharge and that the
burden of proof could not have been placed
on the petitioner establishment in this
regard. It is stated that the petitioner is a
sugar manufacturing unit engaged in
manufacture of crystal sugar through
vacuum pan process and the conditions of
service of its workmen are governed in
terms of the 'Standing Orders Covering the
Conditions of Employment of Workmen in
Vacuum Pan Sugar Factories in Uttar
Pradesh' (hereinafter referred to as 'the
Sugar Factories Standing Orders') which
have been notified under Section 3(b) of the
U.P. Industrial Disputes Act, 1947. It is
stated that the respondent-workman neither
pleaded nor adduced any evidence to
eastablish that he had ever become entitled
to payment of retaining allowance as per the
terms of 'U.P. Payment of Retaining
Allowances
To
Unskilled
Seasonal
Workmen of Sugar Factories Order, 1972'.

11. Reliance is placed upon the
judgments
in
the
case
of
Batala
Cooperative
Sugar
Mills
Ltd.
Vs.
Sowaran Singh1, Morinda Cooperative
Sugar Mills Ltd. Vs. Ram Kishan and
others2,
and
U.P.
State
Sugar
Corporation Ltd. Vs. Niraj Kumar and
others3.

12. Counsel appearing for the
respondent-workman has tried to support
the award of the Labour Court by
asserting that the respondent had worked
from the crushing season 1999-2000 upto
the season 2003-2004 and he was illegally
not called for work for the season 20042005. It is submitted that since the
relevant documents pertaining to his
working in the seasonal establishment
were not available with him and the said
documents having not been produced by
the petitioner-establishment the Labour
Court has rightly drawn an adverse
inference and made the award in favour of
the workman.

13. Heard learned counsel for the
parties and perused the record.

14. The records of the case indicate
that
the
petitioner
is
a
sugar
manufacturing
unit
of
M/s
Triveni
Engineering and Industries Ltd., Khatauli,
Saharanpur (a company incorporated
under the Companies Act, 1956). The
Sugar Unit
is
situate
at
Khatauli,
Saharanpur and is engaged in the
manufacture of crystal sugar through
vaccum pan process. The conditions of
service of workmen engaged in the
petitioner's sugar unit are governed in
terms of the Sugar Factories Standing
Orders notified under Section 3 (b) of the
U.P. Industrial Disputes Act, 1947.
Clause A-5 of the Sugar Factories
Standing Orders defines the expression
''season''
as
meaning
the
period
2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1669
commencing from the date when the
crushing commences till the date when
the crushing ends. The classification of
workmen is provided for under Clause-B
which includes seasonal workmen as one
of its categories and the expression
''seasonal workman'' has been defined
under Clause B (II).

15. For ease of reference the
relevant provisions of the aforementioned
Sugar Factories Standing Orders are being
extracted below :-

"5. ''Season" means the period
commencing from the date when the
crushing commences till the date when
crushing ends. Provided that for these
departments which are not in operation
when crushing begins and which continue
in operation after crushing ends, the
"season" so far as it affects the workmen
in those departments, shall commence
with the date the department commences
operation and shall end when the
department ceases to be operated.

xxxxxx

(II) A "seasonal workman" is
one who is engaged only for the crushing
season:

Provided that if he is retainer, he shall be
liable to be called on duty at any time in
the off-season and if he refuse to join or
does not join, he shall lose his lien as well
as his retaining allowance. However, if he
submits a satisfactory explanation of his
not joining duty, he shall only lose his
retaining allowance for the period of his
absence.

xxxxxx

2
(c)(ii)
Every
seasonal
workman will be given a ticket as in Form
''E''.

xxxxxx

K. Special conditions governing
employment of seasonal workmen-

1. A seasonal workman who has
worked or, but for illness or any other
unavoidable cause, would have worked
under a factory during the whole of the
second half of the last preceding season
will be employed by the factory in the
current season.

Explanation
-
Unauthorised
absence during the second half of the last
preceding season of a workman has not
been validly dismissed under these
Standing Orders and of a workman who
has
been
re-
employed
by
the
management in the current season, shall
be deemed to have been condoned by the
management."

16. Clause B-2 (c) (ii) of the Sugar
Factories Standing Orders provides that
every seasonal workman is to be given a
ticket in Form-E. The payment of
retaining
allowance
including
the
eligibility of payment of the said
allowance is provided for under the 'U.P.
Payment of Retaining Allowances To
Unskilled Seasonal Workmen of Sugar
Factories Order, 1972'.

17. In the case at hand, in order to
answer the reference with regard to the
claim raised by the workman in respect of
the termination of his services as a
seasonal
workman
from
the
commencement of the season 2004-2005,
the Labour Court framed an issue with
regard to the existence of master-servant
relationship
between
the
petitioner
establishment and the workman. In
support of his claim with regard to his
working as 'Seasonal Taul Lipik' from the
crushing season 1999-2000 upto the
season 2003-2004 the workman apart
from the assertions made in his written
1670 INDIAN LAW REPORTS ALLAHABAD SERIES
statement
did
not
produce
any
documentary evidence to support his case.
In his oral statement the respondentworkman specifically admitted to having
no documentary evidence to support the
claim of his working in a seasonal
capacity with the petitioner establishment.

18. On behalf of the petitioner the
Time Keeper of the Sugar Unit appeared
as
the
employer's
witness
and
categorically asserted that the respondentworkman had never worked in any
capacity with the petitioner establishment
and to support the said assertion he had
brought with him the original records in
the form of pay register and retaining
allowanceregister for the period from
crushing season 1999-2000 upto the
season 2003-04. The said witness also
proved the documents (Ex.1) which had
been filed along with list of documents
(List 11-B1) which demonstrated that the
name of the respondent-workman found
mention in the list of workers engaged by
the contractor M/s Pilania Security and
Allied Services, Private Ltd. The monthly
statement of provident fund contribution
pertaining
to
the
aforementioned
contractor for the month of March 2004
showing
the
name
of
respondent
workman was also filed by the petitioner
establishment along with its list of
documents in order to prove that the
respondent was working with the said
contractor.

19. The claim raised by the
respondent-workman with regard to the
termination of his engagement from the
season 2004-2005 rested upon the claim
of his continuous engagement as a
seasonal workman from the season 19992000 to the season 2003-04 and the
burden of proof in this regard was clearly
on the workman. In the present case
admittedly the respondent-workman did
not adduce any documentary evidence in
support
of
his
claim
of
seasonal
engagement and despite the fact that the
employer
witness
had
categorically
denied the factum of working of the
respondent in any capacity and had also
brought with him the original records
including the pay register and the
retaining allowance register to support the
case of the employer the Labour Court
proceeded to draw an adverse inference
against the petitioner- employers.

20. The law with regard to the
burden
of
proof
for
establishing
employer-employee relationship is fairly
well settled and it has been consistently
held that person who sets up the plea of
the
existence
of
employer-employee
relationship the burden of proof would
clearly be upon the said person.

21. In the case of Range Forest
Officer vs. S.T.Hadimani4, where a claim
had been made by the workman regarding
working for more than 240 days, it was
held that the onus to prove the said fact
was on the workman. The relevant
observations made in the judgment are as
follows :-

"2. In the instant case, dispute
was referred to the Labour Court that the
respondent had worked for 240 days and
his service had been terminated without
paying
him
any
retrenchment
compensation. The appellant herein did
not accept this and contended that the
respondent had not worked for 240 days.
The Tribunal vide its award dated 10th
August, 1998, came to the conclusion that
the service had been terminated without
giving retrenchment compensation. In
2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1671
arriving at the conclusion that the
respondent had worked for 240 days, the
Tribunal stated that the burden was on
the management to show that there was
justification in termination of the service
and that the affidavit of the workman was
sufficient to prove that he had worked for
240 days in a year.

3. For the view we are taking, it
is not necessary to go into the question as
to whether the appellant is an "industry"
or not, though reliance is placed on the
decision of this Court in State of Gujarat
v. Pratam Singh Narsinh Parmar, (2001)
9 SCC 713. 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.
However, Mr. Hegde appearing for the
Department states that the State is really
interested in getting the law settled and
the
respondent
will
be
given
an
employment on compassionate grounds
on the same terms as he was allegedly
engaged prior to his termination, within
two months from today."

22. The aforementioned legal
position was reiterated in the case of
Rajasthan State Ganganagar Sugar
Mills Ltd. Vs. State of Rajasthan and
another5, wherein it was held as follows
:-

"6.It was the case of the workman
that he had worked for more than 240
days in the year concerned. This claim
was denied by the appellant. It was for the
claimant to lead evidence to show that he
had in fact worked up to 240 days in the
year preceding his termination. He has
filed an affidavit. It is only his own
statement which is in his favour and that
cannot be regarded as sufficient evidence
for any court or tribunal to come to the
conclusion that in fact the claimant had
worked for 240 days in a year. These
aspects were highlighted in Range Forest
Officerv.S.T. Hadimani[(2002) 3 SCC 25
: 2002 SCC (L&S) 367] . No proof of
receipt of salary or wages for 240 days or
order or record in that regard was
produced. Mere non-production of the
muster roll for a particular period was
not sufficient for the Labour Court to hold
that the workman had worked for 240
days as claimed. Even if that period is
taken into account with the period as
stated in the affidavit filed by the
employer, the requirement prima facie
does not appear to be fulfilled. The
following period of engagement which
was accepted was 6 days in July 1991,
15-1/2 days in November 1991, 15-1/2
days in January 1992, 24 days in
February 1992, 20-1/2 days in March
1992, 25 days in April 1992, 25 days in
May 1992, 7-1/2 days in June 1992 and 51/2 days in July 1992. The Labour Court
demanded production of muster roll for
the period of 17-6-1991 to 12-11-1991. It
included this period for which the muster
1672 INDIAN LAW REPORTS ALLAHABAD SERIES
roll was not produced and came to the
conclusion that the workman had worked
for more than 240 days without indicating
as to the period to which period these 240
days were referable."

23. Again in the case of Municipal
Corporation Faridabad Vs. Siri Niwas6,
it was held that the burden was on the
workman to prove that he had worked for
more than 240 days in the preceding one
year prior to his retrenchment and the
workman
having
not
adduced
any
evidence with regard to the same the
claim raised by him could not be allowed
only on the basis of adverse inference
drawn against the employer for not
producing the muster rolls. The relevant
observations made in the judgment are as
follows :-

"13. 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 25F of the Industrial
Disputes Act, 1947, an order retrenching
a workman would not be effective unless
the conditions precedent therefore are
satisfied. Section 25F 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.

14. For the said purpose it is
necessary to notice the definition of
'Continuous Service' as contained in
Section 25B of the Act. In terms of Subsection (2) of Section 25B 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
2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1673
period. He even did not examine any
other witness in support of his case.

15. 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.

16.
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.

xxxxxxxx

19. 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.

xxxxxxx

21........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."

24. The aforementioned position of
law
was
restated
in
the
case
of
M.P.Electricity Board Vs. Hariram7, in
the following terms :-

"11.The above burden having
not been discharged and the Labour
Court having held so, in our opinion, the
Industrial Court and the High Court erred
in basing an order of reinstatement solely
on
an
adverse
inference
drawn
erroneously. At this stage it may be useful
to refer to a judgment of this Court in the
case ofMunicipal Corpn., Faridabadv.Siri
Niwas[(2004) 8 SCC 195 : JT (2004) 7
SC 248] wherein this Court disagreed
with the High Court's view of drawing an
adverse inference in regard to the nonproduction
of
certain
relevant
documents."

25. The question of onus of proof
regarding the factum of working was
again considered in the case of Manager,
Reserve Bank of India Bangalore Vs.
S.Mani and others8 and it was held that
initial burden of proof is always on the
workman to prove his working and that
the onus of proof does not shift to the
employer nor is the burden of proof on the
workman discharged merely because the
employer fails to prove a defence. The
1674 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant
observations
made
in
the
judgment are as follows :-

"28.The initial burden of proof
was on the workmen to show that they had
completed 240 days of service. The
Tribunal did not consider the question
from that angle. It held that the burden of
proof was upon the appellant on the
premise that they have failed to prove
their plea of abandonment of service"

xxxxxxx

"35.Only because the appellant
failed to prove its plea of abandonment of
service by the respondents, the same in
law cannot be taken to be a circumstance
that the respondents have proved their
case."

26. The question of onus of proof
and the evidence to be led again came up
in the case of Surendranagar District
Panchayat vs. Dahyabhai Amarsinh9,
and it was held that the burden to prove
his working lies on the workman and it is
for him to adduce evidence to prove the
said factum and in a case if the evidence
with regard to the same has not been led
by the workman it would be held that he
has failed to discharge the burden. It was
only in a case where sufficient evidence
was led by the workman that the Court
could have drawn adverse inference
against the other party. The relevant
observations made in the judgment are as
follows :-

"18.In the light of the aforesaid,
it was necessary for the workman to
produce the relevant material to prove
that he had actually worked with the
employer for not less than 240 days
during the period of 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 the
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. 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 25-F 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 25-B(1)
of the Act. In the facts and situation and
in the light of the law on the subject, we
find that the respondent workman is not
entitled to the protection or compliance
with Section 25-F of the Act before his
service was terminated by the employer.
As regards non-compliance with Sections
25-G and 25-H suffice it to say that
witness Vinod Misra 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 workmen, the appellant
2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1675
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 noncompliance with 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".

27. The question of burden of proof
yet again came up for consideration in the
case
of
R.M.Yellatti
Vs.
Assistant
Executive Engineer10, wherein it was
reiterated that burden of proof lies on the
workman and it is for him to adduce
cogent
evidence,
both
oral
and
documentary, and mere non-production of
muster rolls per se will not be a ground to
draw an adverse inference against the
employer.
The
relevant
observations
made in the judgment are as follows :-

"12.Now coming to the question
of burden of proof as to the completion of
240 days of continuous work in a year,
the law is well settled. InManager,
Reserve Bank of Indiav.S. Mani[(2005) 5
SCC 100 : 2005 SCC (L&S) 609] the
workmen raised a contention of rendering
continuous service between April 1980 to
December 1982 in their pleadings and in
their
representations.
They
merely
contended in their affidavits that they had
worked for 240 days. The Tribunal based
its decision on the management not
producing the attendance register. In view
of the affidavits filed by the workmen, the
Tribunal held that the burden on the
workmen to prove 240 days' service stood
discharged. In that matter, a three-Judge
Bench of this Court held that pleadings
did not constitute a substitute for proof
and that the affidavits contained selfserving statements; that no workman took
an oath to state that he had worked for
240 days; that no document in support of
the said plea was ever produced and,
therefore, this Court took the view that the
workmen had failed to discharge the
burden on them of proving that they had
worked for 240 days. According to the
said judgment, only by reason of nonresponse to the complaints filed by the
workmen, it cannot be said that the
workmen had proved that they had
worked for 240 days. In that case, the
workmen had not called upon the
management to produce the relevant
documents. The Court observed that the
initial burden of establishing the factum
of continuous work for 240 days in a year
was
on
the
workmen.
In
the
circumstances, this Court set aside the
award of the Industrial Tribunal ordering
reinstatement.

13.InMunicipal
Corpn.,
Faridabadv.Siri Niwas[(2004) 8 SCC 195
: 2004 SCC (L&S) 1062] the employee
had worked from 5-8-1994 to 31-12-1994
as a tubewell operator. He alleged that he
had further worked from 1-1-1995 to 165-1995. His services were terminated on
17-5-1995
whereupon
an
industrial
dispute was raised. The case of the
employee before the Tribunal was that he
had completed working for 240 days in a
year; the purported order of retrenchment
was illegal as the conditions precedent to
Section 25-F of the Industrial Disputes
Act were not complied with. On the other
hand, the management contended that the
employee had worked for 136 days during
the preceding 12 months on daily wages.
1676 INDIAN LAW REPORTS ALLAHABAD SERIES
Upon considering all the material placed
on record by the parties to the dispute, the
Tribunal came to the conclusion that the
total number of working days put in by the
employee were 184 days and thus he,
having not completed 240 days of working
in a year, was not entitled to any relief. The
Tribunal
noticed
that
neither
the
management nor the workman cared to
produce the muster roll w.e.f. August 1994;
that the employee did not summon muster
roll although the management had failed to
produce them. Aggrieved by the decision of
the Tribunal, the employee filed a writ
petition before the High Court which took
the view that since the management did not
produce the relevant documents before the
Industrial Tribunal, an adverse inference
should be drawn against it as it was in
possession of best evidence and thus, it was
not necessary for the employee to call upon
the management to do so. The High Court
observed that the burden of proof may not
be on the management but in case of nonproduction of documents, an adverse
inference could be drawn against the
management. Only on that basis, the writ
petition was allowed holding that the
employee had worked for 240 days.
Overruling the decision of the High Court,
this Court found on facts of that case that
the employee had not adduced any evidence
before the court in support of his contention
of having complied with the requirement of
Section 25-B of the Industrial Disputes Act;
that apart from examining himself in
support of his contention, the employee did
not produce or call for any document from
the office of the management including the
muster roll (MR) and that apart from
muster rolls, the employee did not produce
the offer of appointment or evidence
concerning remuneration received by him
for working during the aforementioned
period.

14.InRange
Forest
Officer[(2002) 3 SCC 25 : 2002 SCC
(L&S) 367] the dispute was referred to
the Labour Court as to whether the
workman had completed 240 days of
service. Vide award dated 10-8-1988, the
Tribunal held that the services were
wrongly
terminated
without
giving
retrenchment compensation. In arriving
at this conclusion, the Tribunal stated that
in view of the affidavit of the workman
saying that he had worked for 240 days,
the burden was on the management to
show justification in termination of the
service. It is in this light that the Division
Bench of this Court took the view that the
Tribunal was not right in placing the
burden on the management without first
determining on the basis of cogent
evidence that the workman had worked
for 240 days in the year preceding his
termination. This Court held that it was
for the claimant to lead evidence to show
that he had worked for 240 days in the
year preceding his termination; that filing
of an affidavit is only his own statement in
his own favour which cannot be recorded
as sufficient evidence for any court or
tribunal to come to the conclusion that a
workman had worked for 240 days in a
year. This Court found that there was no
proof of receipt of salary or wages for
240 days; that the letter of appointment
was not produced; that the letter of
termination was not produced on record
and, therefore, the award was set aside.

15.InRajasthan
State
Ganganagar S. Mills Ltd.[(2004) 8 SCC
161 : 2004 SCC (L&S) 1055] the
workman had alleged that he had worked
for more than 240 days in the year
concerned, which claim was denied by the
management. The workman had merely
filed an affidavit in support of his case.
Therefore, the Division Bench of this
2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1677
Court took the view that it was for the
claimant to lead evidence to show that he
had worked for 240 days in the year
preceding his termination. This Court
observed that filing of an affidavit was not
enough because the affidavit contained
self-serving statement of the workman
which cannot be regarded as sufficient
evidence for any court or tribunal to come
to the conclusion that the claimant had
worked for 240 days in a year.