RAJES KUMAR, J. - (1.) PRESENT writ petition under Article 226 of the Constitution of India is against the award dated 27.06.1998 passed by the Presiding Officer, Industrial Tribunal -V, U.P., Meerut in Adjudication Case No. 137 of 1995, which has been published on 16.01.1999 in view of the Government Order No. 947 dated 19.12.1998.
(2.) THE aforesaid award was given by the Industrial Tribunal on Reference being made under Section 4 -K. for the adjudication of the following disputes: KYA SEVAYOJAKO DWARA APNE SHRAMIK SHRI DILIP MANI DUBEY, SON OF SRI R.N. DUBEY KO DINAK 1.2.95 SE SEVA SE PRATHAk/VANCHIT KIYA JANA UCHIT TATHA/ATHVA VAIDHANIK HAI? YADI NAHI, TO SAMBANDHIT SHRAMIK KYA HITLABH/ANUTHOSH (RELIEF) PANE KA ADHIKARI HAI TATHA ANYA KIS VIVRAN VA TITHI SAHIT? Tribunal has framed the following additional issues: 1. Whether the concerned workman was engaged for temporary nature of work, if so, its effect? 2. Whether the workman concerned worked for more than 240 days during the last year of his service? 3. Whether the real nature of dispute relate to the permanancy of job of the workman, If so, its effect. Petitioner is the employer and the respondent No. claimed to be workman under the U.P. Industrial Disputes Act. Petitioner had a unit named as Mawana Sugar Works, Mawana, district Meerut, involved in the manufacturing of sugar, in which the respondent No. 3 was the workman. It is claimed that the respondent No. 3, the workman was initially employed as Fitter Helper on 26.12.1990 against a post which was of permanent nature. When he came to know that he was not being entitled to the benefits to which a regular workman was entitled to, he raised oral demand on 31.01.1995, which resulted in his termination on 01.02.1995 by an oral order and since then he had been unemployed. The case of the employer was that the workman concerned was engaged on casual basis as and when exigency arose and that his services were not terminated and he himself stopped reporting after 01.02.1995. According to the case of the employer, the real dispute related to the regularisation, which had been raised in the garb of the termination. According to the employer, the worker worked only for 140 days from February, 1994 to January, 1995 and did not worked at all in the month of April, 1994 to June, 1994, August and November, 1994. In reply to the aforesaid, the workman submitted that the employer had fabricated the account of his working days preceding to termination and he had not worked as temporary hand and the employer had not given any detail of his alleged casual, temporary and intermittent engagement. The claim was that he had worked for more than 240 days and his termination under Section 6 -N of U.P. Industrial Disputes Act was without any notice was unjustified. From both the sides various documents have been filed and the statements were recorded. The Presiding Officer decided aforesaid three issues as follows: Addl. Issue Nos. 1 and 2 The case of the workman is that he was working on a permanent post and that he was never told that he was a temporary hand, whereas the case of the employers is that the workman was a temporary hand and he was not a permanent workman. The workman had filed a number of documents in support of his case and these documents showed him as a temporary hand, as such the workman's contention that he was never told that he was a temporary hand is not convincing. I have no doubt that the workman worked as a temporary hand and is not a permanent hand. I, therefore, hold that the workman was engaged by the employers in temporary capacity. Issue No. 1 is decided in favour of the employer. As to the contention of the employer that the workman worked only for 142 days prior to his alleged termination, it is difficult to believe in the version of the employers and they have not filed extract of form -12 and extract of attendance register filed by them cannot be relied on. Against this, the workman had repeatedly asserted that he had been working continuously since his employment in January, 1988. It may be pointed out that the contention of the employers is that the workman used to be engaged as substitute or as additional hand to meet exigency of work, but neither oral nor documentary evidence has been adduced in support of his contention. EW -l's oral testimony is of general type and is of little help to the employers. So far as testimony of E.W. -2 is concerned, it is about so called attendance register and it has been pointed out earlier that this register cannot be accepted on face value and it is not form -12 which is prescribed for attendance for all types of workman. Since the employers have not come forward with the best evidence and for reasons best known to them, they had decided to keep this evidence with them, I have no option but to accept the version of the workman that he had been working continuously since his employment and that he had put in more than 240 days of service before his termination. I, therefore, hold that the workman had put in more than 240 days of service preceding his termination. Issue No. 2 is decided in favour of the workman. Addl. Issue No. 3 In view of the above finding in respect of additional issue No. 2, it is of academic interest to point out that there might be a dispute regarding regularisation. The workman has raised the dispute about his termination and it has been found that he has put in more than 240 days of continuous service preceding to his termination, as such, the termination of the service of the workman by the employers was both unjust and illegal. The dispute referred to this Tribunal is about termination and not about regularisation, as such, I shall confine myself to the dispute of termination. In view of the above, Tribunal held that the employee was temporary and not permanent. Tribunal, however, held that since the employer has not filed the extract of Form -12, the extract of contents of attendance register filed by them can not be relied upon and thus, the plea of the workman that he had worked for more than 240 days since his employment has been accepted on the oral testimony and, accordingly, it has been held that the employer has illegally terminated the service of the workman and he is to be reinstated with continuity and back wages. Against the aforesaid award, employer filed the present writ petition. The workman has not filed any petition. Thus, now, it is not in dispute that the workman was temporary and not permanent in his employment. The question for consideration, now, therefore, is that whether the view taken by the Tribunal that the workman had continuously worked for more than 240 days since the date of his employment till the date of termination and, therefore, the termination is illegal, is correct and justified. Heard Smt. Sunita Agrawal, learned Counsel for the petitioner and Sri Siddharth, learned Counsel for the respondent. Learned Counsel for the petitioner submitted that the case of the petitioner was that the respondent was never terminated. He was appointed on temporary basis and could not report after 01.02.1995. She submitted that in fact the workman -respondent was not willing to work in case of exigency and the application was wrongly filed before the concerned office on the ground that his services have been terminated. The employer in application dated 15.03.1995 had categorically submitted that the management was willing to engage the concerned workman as it has been doing in the past depending upon the requirement and exigency. The said application dated 15.05.1995 filed on behalf of the employer in CP case No. 40 of 1995 has been filed as annexure RA -1 to the rejoinder affidavit dated 17.04.1999 of Sri P.K. Upadhyaya, deputy Manager, Legal. Smt. Agrawal, learned Counsel for the petitioner submitted as follows: . that during pendency of dispute before the Industrial Tribunal, the employer gave an offer to the workman and required him to appear for interview before the Interview Board against certain exiting vacancies in seasonal post. An application dated 28.01.1997 was filed before the Industrial Tribunal by the authorized representative of the management that as against those vacancies, the employees who were temporary/casual hands were being considered. However, the workman had objected to the said application and refused to appear before the Interview Board taking the plea that they were permanent employee and could not be termed as temporary one. The said application dated 28.01.1997 as mentioned above has been annexed as Annexure No. 7 to the writ petition and finds place at page No. 104 of the paper book. Para 22 of the writ petition is relevant for the purpose. It is clear that the workman was not interested in working in the factory but raised the Industrial Disputes with an intention to get his services regularized in the garb of termination. The job offered by the employer to the workman before the Conciliation Officer as also the Industrial Tribunal was categorical denied by the workman. As established above, at the relevant point of time, the employer was willing to engage the workman as it was doing in the past depending upon the requirement and exigency, but the workman refused to accept the offer given by the Management before the Conciliation Officer. Thus, it is clear that the nature of the dispute was not termination but regularization as was being sought by the workman. . the adverse inference drawn by the Industrial Tribunal while recording finding on issue No. 2 is wholly misplaced in as much as there was no occasion for drawing adverse inference on the ground that the attendance register produced by the employer was not in Form -12. After rejecting the attendance register produced by the employer, the Tribunal recorded that the employers have not come forward with the best evidence and, therefore, the version of the workman that he had put in more than 240 days of service before his termination is to be accepted. The finding of completion of 240 days of service preceding the termination has been recorded only on the aforesaid two grounds. . While recording the said finding the Tribunal had totally ignored that the initial burden to prove working of 240 days lies upon the workman and only if the workman discharged his burden, the onus shifts on the employer if the same is denied by it. In the instant case the workman failed to discharge the burden laid upon him and, therefore, there was no question of shifting the onus upon the employer. Mere statement of the workman as accepted by the Industrial Tribunal is not sufficient to discharge the burden laid upon him. Reference may be taken to the following cases: a). : (2005)IILLJ258SC Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. (Para 28 to 32). b). : (2006)ILLJ424SC Surendranagar District Panchayat v. Dahyabhai Amarsinh (Para 18). c). Municipal Council, Sujanpur v. Surinder Kumar : (2006)IILLJ768SC . . The Tribunal has erred in drawing an adverse inference against the employer, in as much as the Attendance Register, which in Form -12 was filed before the Tribunal and the original register was produced by the employer. The Tribunal has recorded the same in the award itself which finds placed at page 61 of the paper book. The attendance register filed by the employer alongwith list of documents, i.e. list 17 -B(i) has been annexed as annexure No. 11 to the writ petition and the photo copy of the attendance register is at page No. 125 of the paper books. The photocopy, if compared to Form -12 as prescribed under the Factories Act, clearly establish that the extract of attendance register filed by the employer was strictly in Form -12. Thus, there was no occasion before the Industrial Tribunal to reject the same. . Admittedly Form -12 is the prescribed proforma for recording daily attendance of all types of workman and the best evidence showing the total period of working of the workman in possession of the employer was produced before the Tribunal that too in original. The Tribunal has simply rejected the document filed by the employer without there being any plea by the workman that apart from the said document any other document existed which has not been intentionally produced by the Management. It was never alleged by the workman that the register produced by the employer was not the attendance register. Thus, there was no plea of suppression by the workman. That moreover, the Industrial Tribunal did not satisfy itself as to existence of any other document which could have been filed by the employer so as to ascertain the period of working of the workman. That there was no order of the Industrial Tribunal for production of any document by the employer. The workman was allowed to lead secondary evidence though he did not file the same. The workman did not challenge the veracity of the attendance register produced by the employer.
(3.) IN view of the said facts, no adverse inference could have been drawn by the Industrial Tribunal and there was no occasion for rejecting the attendance register produced by the employer which was strictly in Form -12. The Industrial Tribunal had clearly erred in law in doing so. In this regard, reliance is placed on the following cases: 1. Municipal Corporation, Faridabad v. Siri Niwas reported in : (2004)IIILLJ760SC . 2. R.M. Yellatti v. Asstt. Executive Engineer reported in : (2006)ILLJ442SC . 3. Surendra Nagar District Panchayat v. Dahyabhai Amar Singh reported in : (2006)ILLJ424SC . 4. Municipal Council, Sujanpur v. Surinder Kumar reported in : (2006)IILLJ768SC . In the aforesaid judgments it has been held that adverse inference cannot be drawn in routine manner and the same varies in the fact and circumstances of each case. Mere non -production of any document without any plea of suppression is not sufficient to draw adverse inference. Moreover, in the instant case the best document in possession of the employer was produced by it in original. Thus the finding on issue No. 2 is totally perverse and against the evidence on record. In this regard reference may also be taken to supplementary affidavit dated 04.02.1999, filed by Sri P.K. Upadhyaya, Deputy Manager, Legal. (Para 3 and 4 and annexure No. SA -1 to the supplementary affidavit.). . She further submitted that the reliance placed by the learned Counsel for the respondent workman in the case of U.P. Drugs and Pharmaceuticals Co. Limited v. Ramanuj Yadav and Ors. reported in : (2003)IIILLJ1064SC and the decision of the Apex Court in Special Leave Petition (c) Nos. 16456 -16460 16456 -16460 of 2005 Sriram Industrial, Enterprises Limited v. Mahak Singh and Ors., is totally misplaced inasmuch as law laid down in Ramanuj Yadav (Supra) is not applicable in the fact and circumstances of the inst ant case. 240 days of working in previous years was not in issue before the Tribunal. Issue No. 2 framed by the Tribunal was only with regard to the completion of 240 days in preceding 12 months prior to the alleged termination. The scope of inquiry before the Industrial Tribunal was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 6 -N of the Industrial Disputes Act. . Workman himself pleaded that he worked for 240 days in the calendar year preceding his termination. There was no plea that he worked for more than 240 days in every calendar year before termination. The workman in paragraph 11 of the written statement filed by him before the Industrial Tribunal had submitted that he had worked more than 240 days preceding the date of termination of his service. Accordingly, the documents regarding preceding year was filed by the employer before the Tribunal in original as also alongwith list of documents. In view of the said position, the law laid down in Ramanuj Yadav (Supra) cannot be applied in the present case. The written statement filed by the workman has been annexed as Annexure No. 3 to the writ petition, (relevant para is at page 73 of the paper books). . Moreover, the documents filed by the workman before the Industrial Tribunal alongwith List 12 -B(ii) do not suggest that he had worked for 240 days in any of the previous years also since the date of his first engagement. (Photocopy of the List 12 -B (ii) filed by the workman is annexure No. 12 to the writ petition). . That even assuming without admitting that the workman had worked for more than 240 days and there is any violation of Section 6 -N of U.P. Industrial Disputes Act by the employer, reinstatement cannot be granted as a matter of course. Apex Court in a catena of decisions has directed the employer to pay a lump sum amount by way of compensation in place of reinstatement with back wages. It has been held that the completion of 240 days of continuous service in a year does not entitle an employee for regularization of his service and/or permanent status. The concept of 240 days in a year was introduced in the Industrial law for a definite purpose. The concept was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25 -F of the Industrial Disputes Act, 1947 before he is retrenched from service and not any other purpose. In the event of violation of the said provision, termination of services of the employer may be found to be illegal, but only on that account, his service cannot be directed to be regularized. In this regard, she relied upon the following cases: 1. Gangadhar Pillai v. SIEMENS Ltd. reported in : (2007)1SCC533 . 2. Haryana State Electronics Development Corporation Ltd. v. Mamni reported in : (2006)IILLJ744SC . 3. Nagar Mahapalika (Now Municipal Corporation) v. State of U.P. and Ors. reported in : (2006)IILLJ748SC . 4. Madhyamik Shiksha Parishad U.P. v. Anil Kumar Mishra and Ors. reported in : (1994)IILLJ977SC . 5. Accounts Officer (A and I), APSRTS and Ors. v. K.V. Ramana and Ors. reported in : (2007)ILLJ1042SC . In reply to the aforesaid submissions, learned Counsel for the respondent submitted as follows: . Continuous working of 240 days immediately preceding the date of termination of service of the workman is insignificant where the workman had put in many years of service. (2003 (99) F.L.R. 331. The workman discharged the burden of proof of continuous working for 240 days by brining on record the evidence in his possession and by stating on oath before the Industrial Tribunal that he has put in more than 240 days of service in each of the years since his appointment. The employer could not rebut the evidences, both oral and documentary, lead by the workman by filing the evidences in their possession which the workman requested to be produced before the Tribunal but the evidences were deliberately withheld by the employer hence the Court drew adverse inference against the employer in presuming that the workman had completed 240 days of continuous service. It was not a case of workman not adducing any evidence and making just a ball statement of fact that they had worked for more than 240 days. Rather the workman discharged the initial burden of proof and since the employer's witness admitted that the employer used to pay salary in cash hence the onus of proving the wages shifted on the employers to prove that the workman did not report for duty on his own and his services were never dispensed with by the employer. . The burden of proving that the workman abandoned his job is on the employer. If it is proved that the employer did not terminate the services of the workman but prevented them from working it is case of retrenchment where the employer/employee relationship is deemed to subsist since the contract of service stands intact.;