# State of U.P. & Anr v. Chhunna Lal & Anr

- **Citation:** (2019) 2 ILRA 1740
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** Writ C No. 38391 of 2016
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-chhunna-lal-anr-44664
- **Pages:** 17

## Headnote

A. U.P. Industrial Dispute Act, 1947 - Burden
of proving a fact - on the party who
substantially asserts the issue and not upon
who denies it. The workman unable to prove
the factum of his continuous service - not
entitled to benefit of the protection of
section 6N of the Act.

Held:- In the instant case the aforementioned
burden of proof having not been discharged by
the respondent-workman the finding recorded
by the Labour Court with regard to the
workman having been completed 240 days in
a calendar year so as to claim entitlement of
the protection under Section 6N of the Act,
1947 is not supported from the records and
the same being contrary to the material
evidence which is available on record the
finding cannot be legally sustained. (Para 31)

Writ Petition allowed (E-9)

List of Cases Cited: -

## Text

_Characters 0–39,936 of 55,927. This is a partial read: ask again with offset=39936 for what follows._

1740 INDIAN LAW REPORTS ALLAHABAD SERIES

22. It is thus seen that the term
'industrial dispute' connotes a real and
substantial
difference
having
some
element of persistency which is likely to
endanger industrial peace. The essence of
an industrial dispute is disagreement. In
order to constitute a dispute there must be
some disagreement between workmen and
employer who stand in some industrial
relationship upon some matter that affects
or arises out of that relationship. It must
be concerned with an industry and the
difference between the parties must be
concerned
in
some
way
with
the
'workmen' as defined in the Act.

23. The expression 'dispute' or
'difference' as used under the statutory
definition of the term 'industrial dispute'
means a controversy which is fairly definite
and of real substance and being connected
with the terms of employment or nonemployment or with the conditions of labour
or dismissal etc., and is one in which the
contesting
parties
are
directly
and
substantially interested in maintaining the
respective contentions. It must be a grievance
felt by the workmen which the employer is in
a position to remedy or set right. The dispute
in order to come within the definition of
'industrial dispute' must be capable of being
made the subject of an award, and therefore,
the claim made by one party to the dispute
must be one which the other party has power
to grant. The key words in the definition of
the term 'industrial dispute' are 'dispute' or
'difference'. The existence of an 'industrial
dispute' thus pre-supposes the existence of a
'dispute' or 'difference' as a condition
precedent.

24. In the facts of the present case in
the absence of any real and substantial
difference existing between the parties
which could be said to be connected with
the employment or non-employment, or
with regard to discharge, dismissal,
retrenchment or termination there could
not be said to be any industrial dispute
subsisting, which required adjudication,
and the award passed by the Labour Court
which is sought to be challenged in the
present petition, cannot be faulted with.

25. The Labour Court having held
that there existed no subsisting industrial
dispute and the workman having not been
able to prove the fact that the employer
had contravened the provisions of Section
6-E
during
the
pendency
of
the
proceedings before the Labour Court, the
rejection of the application under Section
6-F of the U.P.I.D.Act, 1947, also cannot
be held to be improper.

26. No other point was argued by
the counsel for the petitioner.

27. Counsel for the petitioner has not
been able to point out any material error or
illegality in the award of the Labour Court
dated18.08.2015 and also the order of the
same date passed upon an application under
Section 6-F of the U.P.I.D.Act, 1947.

28. The writ petition lacks merit and
is accordingly dismissed.
----------

(2019)10ILR A 1740

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

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

Writ C No. 38391 of 2016
2 All. State of U.P. & Anr. Vs Chhunna Lal & Anr.
1741
State of U.P. & Anr. ...Petitioners
Versus
Chhunna Lal & Anr. ...Respondents

Counsel for the Petitioners:
Sri Chandrakesh Rai, Sri Prakash Singh.

Counsel for the Respondents:
Sri Manta Ram Gupta.

A. U.P. Industrial Dispute Act, 1947 - Burden
of proving a fact - on the party who
substantially asserts the issue and not upon
who denies it. The workman unable to prove
the factum of his continuous service - not
entitled to benefit of the protection of
section 6N of the Act.

Held:- In the instant case the aforementioned
burden of proof having not been discharged by
the respondent-workman the finding recorded
by the Labour Court with regard to the
workman having been completed 240 days in
a calendar year so as to claim entitlement of
the protection under Section 6N of the Act,
1947 is not supported from the records and
the same being contrary to the material
evidence which is available on record the
finding cannot be legally sustained. (Para 31)

Writ Petition allowed (E-9)

List of Cases Cited: -

1. Range Forest Officer Vs S.T. Hadimani,
(2002) 3 SCC 25

2. Rajasthan St. Ganganagar S. Mills Ltd. Vs
St. of Raj. & anr., (2004) 8 SCC 161

3. Municipal Corp. Faridabad Vs Siri Niwas,
(2004) 8 SCC 195

4. Manager, R.B.I., Bangalore Vs S. Mani &
ors., (2005) 5 SCC 100

5.
Surendranagar
District
Panchayat
Vs
Dahyabhai Amarsinh, (2005) 8 SCC 750

6.
R.M.
Yellatti
Vs
Assistant
Executive
Engineer, (2006)1 SCC 106

7. Ranip Nagar Palika Vs Babuji Gabhaji
Thakore & ors. (2007) 13 SCC 343

8. Sub-Divisional Engineer, Irrigation Project,
Yavatmal Vs Sarang Marotrao Gurnule, 2009
(120) FLR 114 (Bom.H.C.)

9. Haridwar Vs Smt. Kulwant, 2013 (6) ADJ
485

10. Rangammal Vs Kuppuswami & anr., (2011)
12 SCC 220

11. A. Raghavan & anr. Vs A. Chenchamma &
anr., (1964) AIR SC 136

12. M/s Triveni Engineering & Industries Ltd.
Vs St. of U.P. & ors., Writ C No.60572/2011

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

1. Heard Sri Sri Prakash Singh,
learned
Standing
Counsel
for
the
petitioners and Sri Manta Ram Gupta,
learned counsel appearing on behalf of
respondent no.1-workman.

2. The present petition seeks to
challenge the award dated 10.04.2015
passed by the Labour Court, U.P., Jhansi
in Adjudication Case No.03 of 2013.

3. The records of the case indicate that
upon an industrial dispute having been raised
by the respondent-workman a reference was
made under Section 4K of the U.P. Industrial
Disputes Act, 19471 which was registered as
Adjudication Case No.03 of 2013 before the
Labour Court, U.P., Jhansi. The question
which was referred for adjudication is as
follows:-

"D;k lsok;kstd }kjk vius Jfed
Jh NqUukyky iq= Lo- Jh jkexksiky deZdkj dh
1742 INDIAN LAW REPORTS ALLAHABAD SERIES
lsok;sa fnukad 01-03-83 ls lekIRk fd;k tkuk
mfpr rFkk@vFkok oS/kkfud gS\ ;fn ugha rks
lEcfU/kr Jfed D;k ykHk@vuqrks"k 1⁄4fjyhQ1⁄2
ikus dk vf/kdkjh gS rFkk vU; fdl fooj.k
lfgr\"

4. The aforementioned reference
which
was
with
regard
to
the
legality/validity of the termination of the
respondent-workman w.e.f. 01.03.1983
was answered by the Labour Court in
terms of the award dated 10.04.2015
wherein it was held that prior to the
termination of the services of the
respondent-workman the provisions of
Section 6N of the Act, 1947 were not
followed,
and,
accordingly,
the
termination dated 01.03.1983 was held to
be illegal and invalid, and a direction was
issued
for
reinstatement
of
the
respondent-workman from the date of his
termination i.e. 01.03.1983. The Labour
Court declined to grant back wages,
however, it was provided that the
workman would be entitled to payment of
full wages from the date of publication of
the award.

5. Perusal of the records of the case
indicates that as per the case set up by the
respondent-workman
in
his
written
statement filed before the Labour Court
he had claimed to have continuously
worked for a period of two years as a
daily-wager
from
04.05.1981
to
28.02.1983 without any break and that his
services were illegally terminated on
01.03.1983 without complying with the
provisions of Section 6N of the Act, 1947.

6. A written statement was filed by
the petitioners wherein it was stated that
the respondent-workman had not worked
for the period from 04.05.1981 to
28.02.1983 and in fact he had never
worked with the petitioners' department in
any capacity. It was asserted that the
workman had not completed 240 days of
working in a calender year so as to claim
that he was in continuous service. It was
further stated that after the alleged
termination said to have been made on
01.03.1983 the workman had remained
silent for a long period of time and the
reference which had been made in terms
of the order dated 05.09.2011 was highly
belated and as such the reference itself
was bad in law.

7. In support of his case the
respondent-workman filed his affidavit
reiterating the stand taken by him in his
written statement. Reliance was placed
upon a letter dated 20.10.2011 said to
have been issued by the Assistant
Engineer of the Department to support his
claim of having worked for the period in
question. In his cross-examination it was
categorically admitted by the respondentworkman that apart from the aforesaid
letter dated 20.10.2011 there was no other
documentary evidence to prove his
working.

8. The petitioners in support of their
case
filed
documentary
evidence
including copies of the muster rolls for
the
period
from
May,
1981
upto
28.02.1983 i.e. the period for which the
workman had claimed to have worked
with the Department.

9. The Labour Court though has
referred to the copies of the muster rolls
filed as documentary evidence by the
petitioners which did not indicate the
name of the respondent-workman at any
place; however, proceeding to rely upon a
letter dated 20.10.2011 which is said to
have been issued by the Assistant
2 All. State of U.P. & Anr. Vs Chhunna Lal & Anr.
1743
Engineer of the Department in response to
an R.T.I. Application claimed to have
been filed by the respondent-workman, a
finding has been returned that the
workman had worked for a period of 240
days during the period from 04.05.1981 to
28.02.1983 and as such he was in
continuous services and the provisions
under Section 6N of the Act, 1947 having
not been followed, the workman was
entitled to grant of reinstatement.

10. Contention of the learned Standing
Counsel appearing for the petitioners is that
the
factum
of
engagement
of
the
respondent-workman
having
been
categorically denied by the petitioners in
their written statement the burden of proof
with regard to the working of the
respondent-workman in the establishment
for a period of 240 days in a calender year
so as to establish his continuous working
and claim the benefit of Section 6N of the
Act was upon the workman, which burden
the workman had failed to discharge.

11. As regards the letter dated
20.10.2011 which has been relied upon by
the Labour Court, attention has been
drawn to the Objections dated 11.09.2014
filed before the Labour Court on behalf of
the petitioners wherein it had been stated
that the letter dated 20.10.2011 bearing
Letter No.341 was never issued by the
department. It is submitted that the
findings recorded by the Labour Court
with regard to the respondent-workman
having worked for a period of 240 days in
a calender year is not based on any
evidence available on record and as such
the same is perverse and the award of the
Labour Court is liable to be set aside.

12. Learned counsel appearing for
the respondent-workman has tried to
support the award of the Labour Court by
relying upon the letter dated 20.10.2011
to submit that the factum of his working
from 04.05.1981 to 28.02.1983 was
proved and accordingly he had completed
240 days of working in a calender year so
as to claim benefit of protection under
Section 6N of the Act, 1947 and
reinstatement with consequential benefits.

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

14. From a perusal of the records of
the case it is demonstrated that no
material evidence apart from the letter
dated 20.10.2011 was filed by the
respondent-workman to support his case
of having continuously worked for the
period in question so as to claim
entitlement of protection of Section 6N of
the
Act,
1947.
The
petitionerestablishment on the other hand had filed
documentary evidence in the form of
muster rolls for the periods (i) May, 1981
to December 1981, (ii) 1st January, 1982
to December, 1982 and (iii) 1st January,
1983 to 28.02.1983, which categorically
demonstrated that the name of the
respondent-workman did not find mention
in the muster rolls and accordingly his
working for the period in question was
not proved.

15. The letter dated 20.10.2011 filed
by the respondent-workman to make out a
case was categorically denied by the
petitioners and it was stated that the same
was never issued by the department. The
letter dated 20.10.2011, a copy whereof
has
been
filed
alongwith
the
supplementary affidavit filed by the
petitioners demonstrates that the same is
said to have been issued in response to an
R.T.I. Application filed by the workman
1744 INDIAN LAW REPORTS ALLAHABAD SERIES
and the letter contains a clear recital that
the information being furnished therein
was based on the personal records of the
officer who had issued the letter.
Moreover, the aforementioned letter only
contains reference to the working of the
respondent-workman for a certain period
of time and nowhere shows the actual
number of days of his working on the
basis of which an inference could be
drawn with regard to the workman having
completed 240 days in a calender year so
as to claim continuous service.

16. It is legally well settled that the
burden to prove the factum of 240 days of
working in a calender year so as to claim
benefit of being in continuous service as
defined
under
Section
2(g)
and
consequently the protection of Section 6N
of the Act, 1947, lies upon the workman.

17. In the case of Range Forest
Officer vs. S.T. Hadimani2, 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 10-81998 came to the conclusion that the
service had been terminated without
giving retrenchment compensation. In
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. Pratamsingh
Narsinh Parmar [(2001) 9 SCC 713 : 2002
SCC (L&S) 269 : JT (2001) 3 SC 326]. 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."

18. The aforementioned legal
position was reiterated in the case of
Rajasthan State Ganganagar S. Mills
2 All. State of U.P. & Anr. Vs Chhunna Lal & Anr.
1745
Ltd. Vs. State of Rajasthan & Anr.3,
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 Officer v. 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 5-1/2 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 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."

19. Again in the case of Municipal
Corporation Faridabad Vs. Siri Niwas4,
it was held, in the context of Section 25F
of the Act, 1947 (containing provisions
similar as under Section 6N of the Act,
1947), 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, 1872 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 25-F of the Industrial
Disputes Act, 1947, an order retrenching a
workman would not be effective unless
the conditions precedent therefore are
satisfied. Section 25-F 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.
1746 INDIAN LAW REPORTS ALLAHABAD SERIES

14. For the said purpose it is
necessary to notice the definition of
"continuous service" as contained in Section
25-B of the Act. In terms of sub-section (2)
of Section 25-B 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 for 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 25-B 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 period.
He did not even 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.

x x x x x

19. Furthermore a party in order
to get benefit of the provisions contained
in Section 114 Ill. (g) of the Indian
Evidence Act must place some evidence
in support of his case. Here the
Respondent failed to do so.

x x x x x

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
2 All. State of U.P. & Anr. Vs Chhunna Lal & Anr.
1747
adverse inference drawn against the
appellant for not producing the muster
rolls."

20. The aforementioned position of
law was restated in the case of M.P.
Electricity Board Vs. Hariram5, 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 of Municipal Corpn., Faridabad v.
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..."

21. 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 & Ors.6 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 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..."

x x x x x

"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."

22. The question of onus of proof
and the evidence to be led again came up
in the case of Surendranagar District
Panchayat Vs. Dahyabhai Amarsinh7,
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 co-worker
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
1748 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 socalled seniority, no relief could be given
to
him
for
non-compliance
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".

23. The question of burden of proof
yet again came up for consideration in the
case of R.M. Yellatti Vs. Assistant
Executive Engineer8, 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. In
Manager, Reserve Bank of India v. 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
2 All. State of U.P. & Anr. Vs Chhunna Lal & Anr.
1749
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.
In
Municipal
Corpn.,
Faridabad v. 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 16-5-1995. 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. 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. In Range 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
1750 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
In
Rajasthan
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
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. Further, this Court found that there
was no proof of receipt of salary or wages
for 240 days and, therefore, mere nonproduction 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. On
the facts of that case, the Court found that
even if the period for which the workman
had alleged to have worked was taken
into account, as mentioned in his
affidavit, still the said workman did not
fulfil the requirement of completion of
240 days of service and, therefore, this
Court set aside the award of the Labour
Court.

16. In M.P. Electricity Board
[(2004) 8 SCC 246 : 2004 SCC (L&S)
1092] the workmen were engaged by the
Board on daily wages for digging pits to
erect electric poles. It was the case of the
Board that on completion of the project,
the employment was terminated and
whenever a similar occasion arose for
digging pits, the workmen were reemployed on daily wages and, therefore,
their employment was not permanent in
nature nor had the workmen completed
240 days of continuous work in a given
year. The project jobs came to an end in
1991 and the workmen were never reemployed by the Board. Being aggrieved
by
the
said
non-employment,
the
workmen filed applications under the
M.P. Industrial Relations Act seeking
permanent employment, primarily on the
ground that they have completed 240 days
2 All. State of U.P. & Anr. Vs Chhunna Lal & Anr.
1751
in a year and their discontinuation of
service amounted to retrenchment without
following the legal requirements. The
Board denied the allegations made in the
application before the Labour Court. An
application was moved before the Labour
Court by the workmen seeking direction
to the Board to produce the muster roll for
the period concerned. However, no other
material was produced by the workmen to
establish the fact that they had worked for
240 days continuously in a given year.
Some
of
the
workmen
were
also
examined before the Labour Court.
However, no document was produced in
the form of letter of appointment, receipt
indicating payment of salary, etc. After
examining the entry in the muster rolls,
the Labour Court came to the conclusion
that the workmen had not worked for 240
days continuously in a given year, hence,
they could not claim permanency nor
could they term their non-employment as
retrenchment. Aggrieved by the award of
the Labour Court, the workmen preferred
an appeal before the Industrial Court at
Bhopal which took the view that since the
Board has failed to produce the entire
muster roll for the year ending 1990, an
adverse inference was required to be
drawn against the Board and solely based
on the said inference, the Industrial Court
accepted the case of the workmen that
they
had
worked
for
240
days
continuously
in
a
given
year.
Accordingly, the Industrial Court granted
reinstatement to the workmen with 50%
back wages. Drawing of such an adverse
inference was challenged before this
Court by the M.P. Electricity Board. In
the light of the aforestated facts, this
Court opined that the Industrial Court or
the High Court could not have drawn an
adverse inference for non-production of
the muster rolls for the years 1990 to
1992, particularly in the absence of a
specific plea by the claimants that they
had worked during the period for which
muster rolls were not produced. This
Court observed that the initial burden of
establishing
the
factum
of
their
continuous work for 240 days in a year
was on the workmen and since that
burden was not discharged, the Industrial
Court and the High Court had erred in
ordering reinstatement solely on an
adverse inference drawn erroneously.

17.
Analysing
the
above
decisions of this Court, it is clear that the
provisions of the Evidence Act in terms
do not apply to the proceedings under
Section 10 of the Industrial Disputes Act.
However, applying general principles and
on reading the aforestated judgments, we
find that this Court has repeatedly taken
the view that the burden of proof is on the
claimant to show that he had worked for
240 days in a given year. This burden is
discharged only upon the workman
stepping in the witness box. This burden
is discharged upon the workman adducing
cogent
evidence,
both
oral
and
documentary. In cases of termination of
services of daily-waged earners, there will
be
no
letter
of
appointment
or
termination. There will also be no receipt
or proof of payment. Thus in most cases,
the workman (the claimant) can only call
upon the employer to produce before the
court the nominal muster roll for the
given period, the letter of appointment or
termination, if any, the wage register, the
attendance register, etc. Drawing of
adverse
inference
ultimately
would
depend thereafter on the facts of each
case.