Munishwar Nath Bhandari, J. - (1.) BY this writ petition, a challenge is made to the order dated 13.09.2011 passed by Industrial Tribunal, Jaipur. It was on the application u/s. 33(2)(b) of Industrial Disputes Act, 1947 (for short "the Act, 1947") to seek approval of the order of punishment. Learned counsel submits that as per mandate of Section 33(2)(b) of the Act, 1947, one month's notice pay was not sent to the petitioner after calculating amount of salary admissible to him at the relevant time. Elaborating argument, it is submitted that a demand draft of Rs. 2341/ - was received. However, on presentation, a sum of Rs. 17/ - was deducted by the Bank thus it cannot be said to be salary of one month rather as per fixation, petitioner was entitled to receive Rs. 2530/ - towards one month's notice pay. Since it was not offered as per mandate of Section 33(2)(b) of the Act, 1947, application should have been dismissed. The Tribunal failed to consider the issue aforesaid while passing impugned order thus it deserves to be set aside. Other than aforesaid, no argument has been raised by learned counsel for petitioner to question the order dt. 13.09.2011.
(2.) I have considered the submission made and find that specific averment was made in Para 9 of reply to the application regarding one month's notice pay. It was stated that a draft of Rs. 2341/ - was deposited however Rs. 17/ - was deducted by the Bank. I find that as per impugned order at Annexure -2, amount of draft is of Rs. 2358/ - and not of the figure given by petitioner. The statement of facts in Para 9 goes contrary to document produced by petitioner himself. The first allegation is for deduction of Rs. 17/ - by the Bank. I do not find any material on record to prove the facts aforesaid. Mere making statement of facts are not enough unless evidence is led to substantiate it. The burden to prove aforesaid was on the workman. No document is produced along with writ petition to substantiate fact regarding deduction of Rs. 17/ - by the Bank. If same amount was deducted, it was incumbent upon petitioner to prove the fact. The further fact is regarding petitioner's entitlement for a sum of Rs. 2530/ - towards one month's salary. I find no material to substantiate the pleading or argument. How figure of Rs. 2530/ - arrived is not disclosed and no material is produced to show calculation. In the background aforesaid, it is nothing, but averment without proof. However, I find that Tribunal should have discussed aforesaid facts instead of giving sketchy order, but relevant facts have been considered by this court on limited argument and finding no material to prove and substantiate contents of Para 9 of the reply to the application before the Tribunal, I am not inclined to interfere in the impugned order. The burden to prove his case lies on the workman in view of the judgment in the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors., reported in : (2005) 5 SCC 100. Relevant paras of the aforesaid judgment are quoted hereunder: 27. As noticed hereinbefore, in this case also the Respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference. Burden of proof 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 stating: It is admitted case of the parties that all the 1st parties under the references CR No. 1/92 to 11/92 have been appointed by the 2nd party as ticca mazdoors. As per the 1st parties, they had worked continuously from April, 1980 to December, 1982. But the 2nd party had denied the above said claim of continuous service of the 1st parties on the ground that the 1st parties has not been appointed as regular workmen but they were working only as temporary part time workers as ticca mazdoor and their services were required whenever necessary arose that too on the leave vacancies of regular employees. But as strongly contended by the counsel for the 1st party, since the 2nd party had denied the above said claim of continuous period of service, it is for the 2nd party to prove through the records available with them as the relevant records could be available only with the 2nd party. 29. The Tribunal, therefore, accepted that the Appellant had denied the Respondents' claim as regard their continuous service. 30. In Range Forest Officer v. S.T. Hadimani [ : (2002) 3 SCC 25], it was stated: ...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. 31. In Siri Niwas (supra), this Court held: 13. The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. 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 therefor 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. It was further observed: 14. ...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 25B 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 even did not examine any other witness in support of his case. 32. Yet again in Hariram (supra), it was opined: 10. ...We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the respondent applicants.
(3.) IN the instant case, even amount of one month's salary was having additional amount of Rs. 200/ - as is coming out from the order of dismissal at Annexure -2, thus deficiency in the amount by Rs. 17/ -, though could not be proved by petitioner but even if deduction of Rs. 17/ - was made then also it was not less than one month's salary because Rs. 2358/ - is containing additional amount of Rs. 200/ - on monthly salary. In totality of the facts, I find no merit in the writ petition hence it is dismissed. However, the Industrial Tribunal is expected to pass reasoned orders instead of sketchy orders without discussion of the issues. The stay petition is also dismissed.;