# State of U.P v. Presiding Officer, Labour Court, U.P. Jhansi & Anr

- **Citation:** (2019) 4 ILRA 1272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-14
- **Case number:** Writ-C No. 50174 of 2016
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-presiding-officer-labour-court-u-p-jhansi-anr-44916
- **Pages:** 21

## Headnote

A. Civil Law - U.P. Industrial Dispute Act,
1947 - Section 4(k) and 10(1) -
Reference - Undue delay - Though no
limitation
has
been
prescribed
for
making of a reference; however, delay in
raising
an
industrial
dispute
would
definitely be an important circumstance
which must keep in view at the time of
exercise of discretion by the Labour
Court irrespective of whether or not such
objection has been raised by the other
side - Limitation period for making
4 All. State of U.P. Vs. Presiding Officer, Labour Court U.P., Jhansi & Anr.
1273
reference
is
coextensive
with
the
existence of dispute, meaning thereby
that the dispute should be alive on the
day when the decision was taken to
make a reference or to refuse to make
reference. (Para 30 & 31)

Held -31. In respect of an alleged termination
said to have been made on 01.10.1991 the
reference was made on 29.03.2014 i.e. after a
lapse of more than two decades there would
be little reason to believe that there existed a
live dispute when the reference was made and
for this reason also the award passed by the
Labour Court more particularly the directions
issued for reinstating the respondent workman
in service with effect from the date of
termination and further holding him entitled to
25% of the back wages and also full back
wages from the date of the award cannot be
sustained.

B. Evidence Law - Evidence Act, 1972 -
Section 101 - Burden of proof - Labour
law - Law with regard to burden of
proving 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 to claim of protection of
Section
6N
of
the
U.P.
Industrial
Disputes Act, 1947 is well settled - The
burden of proof is thus the legal
obligation on a party to prove the
allegation made by him, and is often
associated with the maxim 'Semper
necessitas probandi incumbit ei qui agit'
which means the burden of proof is on
the claimant - Burden of proving the
said fact lies upon the workman. (Para 13
& 25)

C.
Rule
of
Evidence
-
Distinction
between „burden of proof‟ and „onus of
proof‟ - The burden of proof lies upon
the person who has to prove a fact and it
never shifts; however, the shifting of
onus of proof is a continuous process in
the evaluation of evidence.

Writ Petition allowed. (E-1)

List of cases cited: -

## Text

_Characters 0–39,904 of 70,396. This is a partial read: ask again with offset=39904 for what follows._

1272 INDIAN LAW REPORTS ALLAHABAD SERIES
the private respondent asserts to have
been in possession of the land prior to its
vesting under the provisions of 1950 Act,
no material or evidence was either alluded
to or brought to the attention of the Court.
That material also does not appear to have
been placed for the consideration of either
the FSO or the Additional District Judge.
This, the Court notes, since no such
material or evidence was ever noticed by
either the Forest Settlement Officer or the
Additional District Judge in the orders
which were framed. It has also come on
the record that the initial order made by
the FSO on 30 August 1986 was
ultimately recalled by that authority on 25
February 1992. The respondent never
assailed that order in any proceedings.

29. Reverting to the individual facts,
the Court notes that the Additional
District Judge on both occasions has
clearly failed to bear in mind that the
initial order passed by the FSO 30 August
1986 had itself been recalled by that
authority subsequently. That subsequent
order of 25 February 1992 has neither
been alluded to nor considered. The
respondent did not lead any other
evidence that may have established that
he had been in cultivatory possession
from prior to 4 July 1970 when the
notification under Section 4 came to be
issued or from before 15/16 May 1950
being the order of the State Government
transferring Dudhi Forest to the Forest
Department.
The
Additional
District
Judge rests his decision solely on the spot
inspection report which formed the basis
of the original order which was ultimately
recalled. The Additional District Judge
also does not rest his decision on any
other independent or cogent evidence
which may have established that the
factual position as found by the FSO was
incorrect. Viewed in that backdrop, it is
manifest that the prayer for review was
clearly liable to be granted.

30. Accordingly and for the reasons
noted, this writ petition shall stand
allowed. The impugned orders dated 30
January 1993 and 24 May 1994 passed by
the Additional District Judge, shall stand
quashed and set aside. The order of the
FSO dated 26 March 1992 shall stand
affirmed and restored.
----------
(2019)12 ILR A1272

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2019

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

Writ-C No. 50174 of 2016

State of U.P. ...Petitioner
Versus
Presiding Officer, Labour Court, U.P.
Jhansi & Anr. ...Respondents

Counsel for the Petitioner:
Sri S.M. Iqbal Hasan, Sri Some Narain
Mishra, Sri Mata Prasad

Counsel for the Respondents:
Sri Syed Mushfiq Ali

A. Civil Law - U.P. Industrial Dispute Act,
1947 - Section 4(k) and 10(1) -
Reference - Undue delay - Though no
limitation
has
been
prescribed
for
making of a reference; however, delay in
raising
an
industrial
dispute
would
definitely be an important circumstance
which must keep in view at the time of
exercise of discretion by the Labour
Court irrespective of whether or not such
objection has been raised by the other
side - Limitation period for making
4 All. State of U.P. Vs. Presiding Officer, Labour Court U.P., Jhansi & Anr.
1273
reference
is
coextensive
with
the
existence of dispute, meaning thereby
that the dispute should be alive on the
day when the decision was taken to
make a reference or to refuse to make
reference. (Para 30 & 31)

Held -31. In respect of an alleged termination
said to have been made on 01.10.1991 the
reference was made on 29.03.2014 i.e. after a
lapse of more than two decades there would
be little reason to believe that there existed a
live dispute when the reference was made and
for this reason also the award passed by the
Labour Court more particularly the directions
issued for reinstating the respondent workman
in service with effect from the date of
termination and further holding him entitled to
25% of the back wages and also full back
wages from the date of the award cannot be
sustained.

B. Evidence Law - Evidence Act, 1972 -
Section 101 - Burden of proof - Labour
law - Law with regard to burden of
proving 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 to claim of protection of
Section
6N
of
the
U.P.
Industrial
Disputes Act, 1947 is well settled - The
burden of proof is thus the legal
obligation on a party to prove the
allegation made by him, and is often
associated with the maxim 'Semper
necessitas probandi incumbit ei qui agit'
which means the burden of proof is on
the claimant - Burden of proving the
said fact lies upon the workman. (Para 13
& 25)

C.
Rule
of
Evidence
-
Distinction
between „burden of proof‟ and „onus of
proof‟ - The burden of proof lies upon
the person who has to prove a fact and it
never shifts; however, the shifting of
onus of proof is a continuous process in
the evaluation of evidence.

Writ Petition allowed. (E-1)

List of cases cited: -
1. Range Forest Officer Vs S.T. Hadimani
(2002) 3 SCC 25

2. Rajasthan State Ganganagar S. Mills Ltd. Vs
State of Rajasthan & Anr. (2004) 8 SCC 161

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

4. M.P. Electricity Board Vs Hariram (2004) 8
SCC 246

5. Manager, Reserve Bank of India, Bangalore
Vs S. Mani & Ors. (2005) 5 SCC 100

6. Surendranagar District Panchayat Vs.
Dahyabhai Amarsinh(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. SubDivisional Engineer, Irrigation Project,
Yavatmal Vs. Sarang Marotrao Gurnule 2009
(120) FLR 114 (Bom.H.C.)

10. Haridwar Vs. Smt. Kulwant 2013 (6) ADJ 485

11. Rangammal Vs. Kuppuswami & Anr.
(2011) 12 SCC 220

12. A. Raghavamma and another Vs. A.
Chenchamma & Anr. AIR 1964 SC 136

13. M/s Triveni Engineering Industry Ltd. Vs.
State of U.P. & Ors. WRIT C No.60572 of 2011

14. State of U.P. & Anr. Vs. Chhunna Lal &
Anr. 2019 (8) ADJ 782

15. Sapan Kumar Pandit Vs. U.P. State
Electricity Board & Ors. (2001) 6 SCC 222

16. Shalimar Works Ltd. Vs. WorkmenAIR
1959 SC 1217

17. Western India Match Co. Ltd. Vs. Workers'
Union(1970) 1 SCC 225

18.
Nedungadi
Bank
Ltd.
Vs.
K.P.
Madhavankutty (2000) 2 SCC 455
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
19. Prabhakar Vs. Joint Director, Sericulture
Department & Anr. (2015) 15 SCC 1

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

1. Heard Sri Mata Prasad, learned
Standing Counsel for the petitioner and
Sri Syed Mushfiq Ali, learned counsel
appearing for the respondent-workman.

2. The instant writ petition has been
filed seeking to assail the award dated
21.12.2015 passed by the Labour Court,
U.P., Jhansi in Adjudication Case No.62
of 2014.

3. Records of the case show that
upon an industrial dispute being raised by
the
second
respondent-workman
a
reference was made under Section 4K of
the U.P. Industrial Disputes Act, 1947
which was registered as Adjudication
Case No.62 of 2014 before the Labour
Court, U.P., Jhansi, and the question
which was referred for adjudication is as
follows:-

"क्या सेवायोजक
द्वारा अपने श्रचमक श्री
कामता प्रसाद पुत्र श्री
भगवान दास कारपेन्टर की
सेवाएां चदनाांक
01.10.1991 से
समाप्त चकया जाना उचित
तथा
/अथवा वैधाचनक है
? यचद
नहीां तो सांबांचधत श्रचमक
क्या चहतलाभ
/उपशम पाने का
अचधकारी है तथा अन्य चकस
चववरण सचहत
?"

4. The reference, aforementioned,
which
was
with
regard
to
the
legality/validity of the termination of the
respondent-workman with effect from
01.10.1991 was answered by the Labour
Court in terms of an award dated
21.12.2015 by recording a conclusion that
the termination of services of the
workman was not legal and valid and
issuing a direction to reinstate him in
service with effect from the date of
termination i.e. 01.10.1991 and further
holding him entitled to 25% of the back
wages and also full wages from the date
of publication of the award.

5. The records of the case indicate
that as per the case set up by the
respondent-workman
in
the
written
statement filed before the Labour Court it
had been claimed that he had been paid
wages as a daily wager for the period
October,
1990
to
30.09.1991
and
thereafter his services were terminated
w.e.f. 01.10.1991, and in the aforesaid
manner he had completed more than 240
days of work. It was further stated that the
termination of his services had been made
without any notice and following the due
procedure.

6. The petitioner also filed a written
statement
before
the
Labour
Court
wherein it was stated that the workman
had worked for a period of 30 days in the
month of June, 1991 and the payment in
respect of the said period of working had
been made immediately. It was further
submitted that the workman had never
been appointed against any post and as
such there was no question of termination
of his services. It was also stated that he
had not completed 240 days of continuous
service during any calender year.

7. The award passed by the Labour
Court does not refer to any documentary
or oral evidence of the workman to
support his claim. Only a reference has
been made to an application filed by the
4 All. State of U.P. Vs. Presiding Officer, Labour Court U.P., Jhansi & Anr.
1275
workman for summoning of the records
by the employer and in view of the nonproduction of the said documents by the
employer the Labour Court has drawn an
adverse inference and proceeded ex parte
to allow the claim of the workman.

8. Learned Standing Counsel
appearing for the petitioner has contended
that the engagement of the respondentworkman
having
been
categorically
denied by the petitioner in its written
statement the burden of proof with regard
to the working of the respondentworkman in the petitioner-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
U.P. Industrial Disputes Act, 1947 was
upon the workman, and in the instant
case, the workman had failed to discharge
the said burden. It is also submitted that
the alleged termination having been said
to have been made on 01.10.1991 the
reference made on 29.03.2014 was highly
belated and was therefore bad in law. It is
accordingly submitted that the conclusion
drawn by the Labour Court with regard to
the termination of the services of the
workman being illegal and invalid with a
further direction for reinstatement of the
workman, payment of 25% back wages
and also full wages from the date of
publication of the award is legally
unsustainable and is liable to be set aside.

9. Learned counsel appearing for the
respondent-workman has supported the
award of the Labour Court by asserting
that the workman having pleaded in his
written statement that he had been paid
wages as a daily wager from the month of
October, 1990 to 30.09.1991 it was
evident that he worked continuously for a
period of 240 days and the relevant
records having not been produced by the
employer the Labour Court has rightly
drawn the adverse inference with regard
to the same.

10. Heard learned counsel for the
parties and perused the records.

11. From perusal of the records of
the case, it appears that only on the basis
of an assertion made in the written
statement that he had paid wages as a
daily wager from the month of October,
1990 to 30.09.1991 the workman has
sought to contend that he had worked
continuously for more than 240 days and
that he was entitled to a notice before his
services could be terminated. No material
evidence, documentary or oral, appears to
have been led by the workman in support
of his claim and the award of the Labour
Court also does not refer to any such
evidence.

12. The only indication in the award
in this regard and what seems to have
weighed with the Labour Court is the fact
that an application had been filed by the
workman for summoning of the records
and pursuant thereto the records in
question had not been produced by the
employer. The Labour Court, accordingly,
drew an adverse inference and thereafter
proceeded ex parte to allow the claim set
up by the workman.

13. The law with regard to burden of
proving 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 to claim of protection of
Section 6N of the U.P. Industrial Disputes
Act, 1947 is well settled and it has been
consistently held that the burden of
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
proving the said fact lies upon the
workman.

14. In the case of Range Forest
Officer Vs. S.T. Hadimani1, 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."

15. The aforementioned legal
position was reiterated in the case of
Rajasthan State Ganganagar S. Mills
Ltd. Vs. State of Rajasthan & Anr.2,
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
4 All. State of U.P. Vs. Presiding Officer, Labour Court U.P., Jhansi & Anr.
1277
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, 151/2 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."

16. Again in the case of Municipal
Corporation
Faridabad
Vs.
Siri
Niwas3, 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.

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 subsection (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
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
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 165-1995 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 adverse inference drawn
against the appellant for not producing the
muster rolls."

17. The aforementioned position of
law was restated in the case of M.P.
Electricity Board Vs. Hariram4, in the
following terms:-

"11. The above burden having
not been discharged and the Labour Court
4 All. State of U.P. Vs. Presiding Officer, Labour Court U.P., Jhansi & Anr.
1279
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
non-production
of
certain
relevant
documents..."

18. 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.5 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."

19. The question of onus of proof
and the evidence to be led again came up
in the case of Surendranagar District
Panchayat Vs. Dahyabhai Amarsinh6,
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
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
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
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".

20. The question of burden of proof
yet again came up for consideration in the
case of R.M. Yellatti Vs. Assistant
Executive Engineer7, 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
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
4 All. State of U.P. Vs. Presiding Officer, Labour Court U.P., Jhansi & Anr.
1281
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
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
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.
4 All. State of U.P. Vs. Presiding Officer, Labour Court U.P., Jhansi & Anr.
1283
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. The above decisions however make
it clear that mere affidavits or self-serving
statements
made
by
the
claimant
workman will not suffice in the matter of
discharge of the burden placed by law on
the workman to prove that he had worked
for 240 days in a given year. The above
judgments further lay down that mere
non-production of muster rolls per se
without any plea of suppression by the
claimant workman will not be the ground
for the Tribunal to draw an adverse
inference against the management.