# The Chairman, District Board, Bulandshahr and another v. Labour Court-II, U.P., Ghaziabad and another

- **Citation:** (2008) 1 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-10
- **Case number:** Civil Misc. Writ Petition No. 34966 of 2001
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-chairman-district-board-bulandshahr-and-another-v-labour-court-ii-u-p-41000
- **Pages:** 3

## Headnote

U.P. Industrial Dispute Act-1947-Section
23-Rule 12-onus of proof-working of 240
days-wrongly shifted upon employerneither
workman
nor
the
presiding
officer summoned the documents nor
examined the witness-held-award given
by the labour court suffers apparent
error on the face of record.

Held: Para 13

In my opinion, the award of the labour
court suffers from an error apparent on
the face of record and illegality in
shifting the burden on the employer to
prove that the workman had not worked
for 240 days. It was the workman who
has
come
in
the
adjudication
proceedings
therefore
in
accordance
with settled principles of law, it was the
workman to prove his case.

## Text

1 All] The Chairman, District Board and another V. Labour Court and another
93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 34966 of 2001

The
Chairman,
District
Board,
Bulandshahr and another ...Petitioners
Versus
Labour Court-II, U.P., Ghaziabad and
another

...Respondents

Counsel for the Petitioners:
Sri. Suresh Chandra Dwivedi
Sri. W.H. Khan
Sri. Gulrez Khan, Sri J.H. Khan.

Counsel for the Respondents:
Sri. Siddarth, S.C.

U.P. Industrial Dispute Act-1947-Section
23-Rule 12-onus of proof-working of 240
days-wrongly shifted upon employerneither
workman
nor
the
presiding
officer summoned the documents nor
examined the witness-held-award given
by the labour court suffers apparent
error on the face of record.

Held: Para 13

In my opinion, the award of the labour
court suffers from an error apparent on
the face of record and illegality in
shifting the burden on the employer to
prove that the workman had not worked
for 240 days. It was the workman who
has
come
in
the
adjudication
proceedings
therefore
in
accordance
with settled principles of law, it was the
workman to prove his case.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1.
Heard
Sri
Gulrez
Khan,
Advocate, holding brief of Sri W.H.
Khan, counsel for the petitioners and Sri
Siddharth, counsel for the respondents.

2. This writ petition has been filed
arising out of the award dated 4.9.2000
(published on 21.5.2001), passed by the
labour Court -II, U.P. Ghaziabad in
adjudication case No. 243 of 1994.

3. The undisputed facts of the case
are that the workman respondent was
engaged
as
a
daily-wager
in
the
petitioners' establishment during the span
of period 16-.12.1990 to 30.9.1991. The
workman was disengaged w. e. f.
30.9.1991.

4. Aggrieved by his disengagement,
the workman raised an industrial dispute
which was registered as C.P. Case No.
76/92.
The
conciliation
proceedings
between the employer and the employees
having failed, the following matter of the
U. P Industrial Disputes Act, 1947 in
exercise of power under Section 4-K by
the State Government was referred to the
labour Court-II U.P. Ghaziabad where it
was registered as adjudication case No.
243/94.

5. The case of the workman before
the Labour Court was that during the
aforesaid span of his working during
16.12.1990 to 30.9.1991, he had worked
for
260
days
continuously
in
the
establishment of the employers and that
he
had
been
disengaged
without
compliance of Section 6-N of the U.P.
Industrial Disputes Act, whereas the case
of the employer before the labour Court
was that workmen though admittedly had
worked for the aforesaid period as
claimed
by
him
but
he
had
not
continuously worked for 240 days or
more, as such, Provisions of Section 6-N
94 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
of the U.P. Industrial Disputes Act are not
applicable.

6. The parties led oral evidence
before
the
labour
Court
but
no
documentary evidence was filed by either
of the parties in support of their case
regarding actual working of continuous
service by the workman.

7. The labour Court relying upon the
oral evidence of the workman that he has
worked
for
260
days
held
that
disengagement of his service was illegal
for non-compliance of Section 6-N of the
U.P. Industrial Disputes Act 1947. The
labour Court came to this conclusion on
the basis that the employer's witness had
stated that the workman had not worked
for 240 days of continuous service in 12
calendar months based upon his seeing of
the records but he had not brought their
records before the labour Court.

8. Admittedly, the burden of proof
of continuous working of at least 240
days or more in the establishment is upon
the workman, as has been held by the
Apex Court in catena of decisions. In case
the employer had any documentary
evidence of actual working of the
workman concerned in his possession the
workman
could
have
moved
an
application for summoning those records
and ought to have proved his case before
the labour Court. No reason has been
given by the labour Court for simply
relying upon the statement of workman
that he has worked for 260 days and
disbelieving the employer's witnesses.

9. The question of fact whether the
workman had actually worked at least for
240 days or more or not, therefore, could
not have been decided on mere statements
of the witnesses to raise by the labour
Court on the basis of documentary
evidence under U.P. Industrial Disputes
Act, 1947 and under Rule 12 framed in
exercise of powers under Section 23 of
the U.P. Industrial Disputes Act. 1947.
The procedure to proceed in adjudication
of case has been provided the Presiding
Officer is vested with power to entry and
inspection under Rule 17 of the aforesaid
Act. Moreover, Rule 21 provides for:-

"Power of labour Courts. Tribunal
and Arbitrators:- In addition to the
powers conferred by the Act, Labour
Courts, Tribunals and Arbitrators shall
have the same powers as are vested in a
Civil Court under the Code of Civil
Procedure 1908 (Act V of 1998) , when
trying a suit, in respect of the following
matters, namely
(a) discovery and inspection;
(b) granting of adjournment; and
(c) reception of evidence taken on
affidavit;
and the Labour Court or Tribunal or
Arbitrator may summon and examine any
person whose evidence appears to it/him
to be material"

10. Neither the documents were got
summoned by the workman in support of
his case for discharging his burden of
proof
nor
the
labour
Court
itself
summoned
any
witnesses
or
the
documents or exercise its power under
Industrial Disputes Act, 1947 and Rules
framed thereunder, hence the labour Court
committed an illegality in shifting the
onus as well as burden of proof of actual
working upon the employers.

11. It may be noted that the parties
are represented before the labour Court by
authorised representative and not by
1 All] Chote Lal V. The L.I.C. of India and others
95
qualified advocates, therefore, the burden
to do justice and to show that justice is
being done is upon the Court. If the
parties are not well conversant with the
procedure, they must be informed by the
Court about the procedure or exercise its
power under Rules where it is necessary
and expedient in the interest of justice.

12. For the reasons aforesaid and for
the fact that the labour Court has not
given any basis for disbelieving of the
employer's witness and relying upon the
workman evidence for the purpose of
arriving at the conclusion that workman
had worked for 240 days or more
continuously,
the
evidence
is
not
sufficient basis for the award in deciding
the reference in favour of the workman.

13. In my opinion, the award of the
labour court suffers from an error
apparent on the face of record and
illegality in shifting the burden on the
employer to prove that the workman had
not worked for 240 days. It was the
workman
who
has
come
in
the
adjudication proceedings therefore in
accordance with settled principles of law,
it was the workman to prove his case.

14. For the reasons stated above,
writ petition is allowed. The impugned
order is quashed. The matter is remanded
back to the labour Court to decide the
matter afresh in accordance with law
within a period of six months from the
date of production of certified copy of this
order by either of the parties before it.

15. Consequently, the recovery
notice
dated
13.8.2001
passed
in
pursuance of the award aforesaid is also
quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2008

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 63373 of 2007

Chote Lal

...Petitioner
Versus
The Life Insurance Corporation of India
and others

...Respondents

Counsel for the Petitioner:
Sri Siddhartha Srivastava

Counsel for the Respondents:
Sri Govind Saran
Sri Vivek Singh
Sri Prakash Padia
Sri R.C. Shukla
Sri V.K. Chandel
Sri Sanjeev Singh

Constitution of India, Art. 226-Service
Law-writ petition-dealing with service
matter
of
L.I.C.
and
Railways-not
maintainable-preliminary
objection
regarding jurisdiction-be decided firstheld-in view of L. Chandra Kumar Casewrit petition not maintainable.

Held: Para 10 & 33

In view of the above legal position the
High
court
has
no
jurisdiction
to
entertain
writ
petitions
directly
in
service matters of the employees in
respect to whom tribunals have been
constituted
and
the
tribunals
so
constituted
alone
shall
have
the
jurisdiction in the matters as the courts
of first instance.

Thus, in the totality of circumstances the
preliminary objection raised on behalf of
the Railways and the LIC is sustained
and it is held that such dispute is in
respect of a service matter and the same