# State of U.P. and others v. P.O., Industrial Tribunal (V) Meerut and another

- **Citation:** (2012) 2 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-02
- **Case number:** Civil Misc. Writ Petition No. 2076 of 1998
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-p-o-industrial-tribunal-v-meerut-and-another-42170
- **Pages:** 4

## Headnote

S.C.
Sri H.C. Dwivedi
Sri P.K. Singhal
Sri P.K. Srivastava
Sri Rajiv Gupta
Sri Shyam Narain
Sri Gopal narain
Sri Sudhanshu Narain

Constitution of India, Article 226-Labor
Court
Award-in
favor
of
workmanburden of proof regarding continuous
working of 240 days-wrongly shifted
upon employer-tribunal decided on most
cursory and illegal manner-award not
sustainable.

Held: Para 6

The issues no. 1 and 3 are such which
were the responsibility of the workman
to
prove.
The
nature
of
employment/appointment
of
the
workman was to be proved by him as
also he has to prove that he has worked
for 240 days and more in the preceding
12 months. There is nothing in the award
to show that except mere assumption on
the part of Tribunal, workman, in any
manner discharged the above burden. It
is true that the record must be available
with the employer but if the workman
intended to rely upon certain document
which were in the possession of the
employer, he could have summoned the
same but there is nothing evident from
the record that any such attempt was
made by the workman and the employer
having failed to produced the document,
the Tribunal has drawn an adverse
inference
thereagainst.
In
fact
the
Tribunal has placed onus in a reverse
manner
on
the
employer
and
has
answered the issues by observing that
the
employer
failed
to
prove
the
pleadings of the employer and very
categorically and specific and in order to
dislodge thereto, it was incumbent upon
the workman to adduce evidence and
prove his case otherwise he was bound
to suffer.
Case law discussed:
JT 2005 (3) SC 248; 2002 (3) SCC 25; 2004
(8) SCC 195; 2006 (1) SCC 106; 2008 (3) SCC
474; 2007 (3) SCALE 436; 2010 (12) SCALE
536
2 All] State of U.P. and others V. P.O., Industrial Tribunal (V) Meerut and another
825

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
6.10.1998 whereby the licence of the
petitioner -respondent no. 1 in respect of
the Fair -Price Shop was cancelled and
the order dated 10.8.2005 passed by the
Divisional Commissioner dismissing the
Appeal filed by the appellant.

10. In view of the aforesaid facts, it
is evident that the Full Bench Decision in
Sheet Gupta case (supra) is applicable
to the present Special Appeal, and the
present
Special
Appeal
is
not
maintainable.

11. The present Special Appeal is,
therefore, liable to be dismissed as not
maintainable,
and
the
same
is
accordingly
dismissed
as
not
maintainable.

12. However, on the facts and in the
circumstances of the case, there will be
no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 2076 of 1998

State of U.P. Thrugh Executive Engineer,
and Ors

 ...Petitioners
Versus
P.O., Industrial Tribunal (V) Meerut and
anr

 ...Respondents

Counsel for the Petitioners:
Sri Ashok Mehta

Counsel for the Respondents:
S.C.
Sri H.C. Dwivedi
Sri P.K. Singhal
Sri P.K. Srivastava
Sri Rajiv Gupta
Sri Shyam Narain
Sri Gopal narain
Sri Sudhanshu Narain

Constitution of India, Article 226-Labor
Court
Award-in
favor
of
workmanburden of proof regarding continuous
working of 240 days-wrongly shifted
upon employer-tribunal decided on most
cursory and illegal manner-award not
sustainable.

Held: Para 6

The issues no. 1 and 3 are such which
were the responsibility of the workman
to
prove.
The
nature
of
employment/appointment
of
the
workman was to be proved by him as
also he has to prove that he has worked
for 240 days and more in the preceding
12 months. There is nothing in the award
to show that except mere assumption on
the part of Tribunal, workman, in any
manner discharged the above burden. It
is true that the record must be available
with the employer but if the workman
intended to rely upon certain document
which were in the possession of the
employer, he could have summoned the
same but there is nothing evident from
the record that any such attempt was
made by the workman and the employer
having failed to produced the document,
the Tribunal has drawn an adverse
inference
thereagainst.
In
fact
the
Tribunal has placed onus in a reverse
manner
on
the
employer
and
has
answered the issues by observing that
the
employer
failed
to
prove
the
pleadings of the employer and very
categorically and specific and in order to
dislodge thereto, it was incumbent upon
the workman to adduce evidence and
prove his case otherwise he was bound
to suffer.
Case law discussed:
JT 2005 (3) SC 248; 2002 (3) SCC 25; 2004
(8) SCC 195; 2006 (1) SCC 106; 2008 (3) SCC
474; 2007 (3) SCALE 436; 2010 (12) SCALE
536
2 All] State of U.P. and others V. P.O., Industrial Tribunal (V) Meerut and another
825
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned Standing Counsel for
the petitioner and Sri Gopal Narain, learned
counsel for respondent No.2.

2. Writ petition is directed against
award dated 29th August, 1997 given by
Industrial Tribunal, (V) U.P. Meerut in
Adjudication Case No.156/94 declaring
termination of workman respondent No.2
w.e.f. 11.10.1991 as illegal and unjustified
and holding him entitled for relief of
reinstatement
with
backwages
and
continuity of service.

3. The case set up by the employer is
that the workman was a Seasonal daily
wage employee and has not worked for 240
days in preceding 12 months, inasmuch as,
as per the record of department has worked
only for 218 days, therefore, allegation that
he has been retrenched illegally are
incorrect. The Tribunal formulated the
following three issues:

Issue No.1:- "Whether the workman
was a seasonal workman as alleged in para
12 of the employers written statement?"

Issue No.2:- "Whether the workman
concerned was a daily wager or he was
getting monthly salary, Either way, its
effect?"

Issue No.3:- "Whether the workman
concerned had completed more than 240
days of service in last year of his service? If
so, its effect?"

4. So far as evidence is concerned, the
award shows that the workman examined
himself and filed four documents which are
said to have been proved by him. These
documents are exhibited as W.W.-1/1A,
Ext.W.-1/1C, Ext. W.W./1/1B and Ext.
W.W.-1/1D. The nature of these documents
is not very clear except of a letter said to
have been submitted by workman himself
stating that he has worked in the year 1991
and 1992 as Beldar and therefore, his name
be forwarded to higher authorities for
regularization. It was also claimed that
some
other
workers
were
also
recommended for regularization in the
similar circumstances. The petitioner said to
have filed photocopies of muster roll but
since the original record was not produced,
Tribunal did not place any reliance thereon.
Having said so, this Court find it really
strange that all the issues have been
answered in favour of the workman by
simply observing that employer has failed
to prove otherwise, without discussing any
evidence, any material etc. The findings
recorded by Tribunal in respect to three
issues, it would be appropriate to reproduce
hereat:

"Issue No.1:- The version of the
employer that the workman was a seasonal
workman and used to be employed casually
as and when work demanded is not proved
by the employer's evidence. In fact, the
employer's witness stated that the workman
was continuously employed for more than
240 days and was paid as such and that
nature of his work was of permanent nature.
Nowhere, the employer has mentioned the
nature of casual work for the period when
such work arose. In order to support his
version, the employers should have shown
exactly what work and when such work was
done casually by the workman concerned.
Therefore, the issue is decided in negative.

Issue No.2:- From the evidence of the
parties discussed earlier, it is clear that the
workman was getting his wages on monthly
basis, though he was treated as daily wager
826 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
by the employer. Since the witness of
employer confirmed that the workman was
paid on monthly basis and that nature of his
work was of a regular basis, I hold that the
workman was paid on monthly basis and
though he was shown as daily wager, in
fact, he was a regular workman.

Issue No.3.:- As to the question
whether the workman concerned had
completed more than 240 days of service in
the last year of his service is clear from the
evidence on record that he had completed
continuous service of 240 days. In view of
the facts and evidence which has been
discussed above, which need not be
required to be repeated. I hold that the
workman had completed more than 240
days of service in the last year of his service
and his services could not have been
terminated without giving him due notice
and compensation as per requirement of
Sec.6-N of the U.P. Industrial Disputes Act,
1947. Issue is decided accordingly.

The employer's version that the
workman was a daily wager and worked
casually is not supported by the evidence
tendered by them. On the other side, the
workman has proved that he worked for
more than 240 days in the last year of his
service
and
that
his
services
were
terminated
without
following
legal
procedure. Since the termination of Shri
Suresh Giri, the workman concerned was
illegal, he is entitled to reinstatement and to
get benefits of continuous service as well as
the wages."

5. To my mind, the approach of
Tribunal is clearly erroneous and shows
patent error of law apparent on the face of
record on account whereof the impugned
award cannot sustain.

6. The issues no. 1 and 3 are such
which were the responsibility of the
workman
to
prove.
The
nature
of
employment/appointment of the workman
was to be proved by him as also he has to
prove that he has worked for 240 days and
more in the preceding 12 months. There is
nothing in the award to show that except
mere assumption on the part of Tribunal,
workman, in any manner discharged the
above burden. It is true that the record must
be available with the employer but if the
workman intended to rely upon certain
document which were in the possession of
the employer, he could have summoned the
same but there is nothing evident from the
record that any such attempt was made by
the workman and the employer having
failed to produced the document, the
Tribunal has drawn an adverse inference
thereagainst. In fact the Tribunal has placed
onus in a reverse manner on the employer
and has answered the issues by observing
that the employer failed to prove the
pleadings of the employer and very
categorically and specific and in order to
dislodge thereto, it was incumbent upon the
workman to adduce evidence and prove his
case otherwise he was bound to suffer.

7. In Manager, Reserve Bank of
India, Bangalore Vs. S.Mani & Ors. JT
2005 (3) SC 248, it is said:

"The initial burden of proof was on the
workmen to show that they had completed
240 days of service."

8. In Range Foresh Officer Vs. S.T.
Hadimani 2002(3) SCC 25, the Court said:

"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
2 All] Satish V. State of U.P.
827
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."

9. Reiterating it in Municipal
Corporation, Faridabad Vs. Siri Niwas
2004(8) SCC 195, the Court said:

"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."

10. This decision has been followed in
R.M.Yellatti Vs. The Asst. Executive
Engineer 2006(1) SCC 106.

11. The above view has also been
reiterated in G.M., BSNL & Ors. Vs.
Mahesh Chand 2008(3) SCC 474, Ranip
Nagar
Palika
Vs.
Bahuji
Gabhaji
Thakore & Ors.2007(3)SCALE 436 and
Amar Chakraverti & Ors. Vs. Maruti
Suzuki 2010 (12) SCALE 536.

12. In the present case the Tribunal
has decided the matter in most cursory and
illegal manner. The impugned award cannot
sustain.

13. The writ petition is allowed. The
impugned award dated 29th August, 1997
(Annexure 1 to the writ petition), is hereby
set aside. The matter is remanded to the
Industrial Tribunal (V) U.P., Meerut to
reconsider the matter and pass a fresh order
in accordance with law after giving due
opportunity of hearing to all concerned
parties.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2012

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE SURENDRA KUMAR, J.

Criminal Appeal U/S 374 Cr.P.C. No. -
2466 of 1982

Satish

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri P.N.Misra
Sri Ajatshatru Pandey

Counsel for the Respondents:
D.G.A.

Criminal Appeal-against conviction of
offence under section 302 I.P.C.-mainly
on ground-when occurrence took placeappellant
was
minor-as
suchmaintaining
conviction
sentence
be
quashed-following dictum of Apex Court
and from scrutiny of records-appellants