DIRECTOR, FISHERIES TERMINAL DIVISIONversusBHIKUBHAI MEGHAJIBHAI CHAVDA

                                                 \


                             [2009] 15 (ADDL.) S.C.R. 761

                    DIRECTOR, FISHERIES TERMINAL DIVISION                       A
..._
        J                                   v.
                         BHIKUBHAI MEGHAJIBHAI CHAVDA
                           (Civil Appeal No. 7463 of 2009)
j'                                NOVEMBER 9, 2009
                                                                                B
                   [TARUN CHATTERJEE AND H.L. DATTU, JJ.]
                 Industrial Disputes Act, 1947:
                 ss. 2(oo)(bb), 25A and 25F - Seasonal industry- Daily
             wager- Termination of- Held: Since respondent-workman was
             &mp/oyed for seasonal work /temporary period, he cannot be         c
             said to have been retrenched in view of s.2(oo)(bb).
                  ss. 258, 25F and 25G - Daily wager - Ter[77ination of -
             Workman filed claim - Plea of employer that workman did not
             work for 240 days during preceding year to constitute
             continuous service, and therefore, not entitled to protection D
             under the Act - On facts. held: Not tenable - Being a daily
       ,,    wager, the workman had difficulty in having access to all official
             documents, muster rolls etc. in connection with his service, yet
             he came forward and deposed in Court, so burden of proof
             shifted to the employer - Employer did not produce complete
                                                                                E
             records and muster rolls inspite of direction issued by labour
             court and practically did not challenge the deposition of
             workman during cross-examination - Retrenchment
             procedure laid down in s.25G was also not followed.
                    Termination - Challenge by workman - Contested by
                                                                                F
            · employer as being time-barred - Held: There was no
              unexplained delay on part of workman in approaching the
              labour court as alleged by the employer -- Workman had first
              approached the Conciliation Officer- Only when conciliation
              proceedings failed that the matter was referred to labour court
              for final adjudication.                                           G

       J!
                Respondent, working as watchman on daily wage
            basis, was terminated from service. He filed claim before
            the Labour Court stating that he was terminated without
            notice and without compliance with the provisions of
                                           761                                  H
    762   SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.


A Industrial Disputes Act, 1947. The Labour Court directed
   the appellant-employer to reinstate respondent with 20%            (
   back wages. The order of the Labour Court was affirmed
   by the High Court.
        In appeal to this Court, the appellant contended that
B being a fisheries department, it was only a seasonal
   industry and therefore Section 25F of the Industrial
   Disputes Act, 1947 was not attracted and the lower courts
   erred in directing the re-instatement of respondent. The
   other contentipn raised by the appellant was that                      ...
   respondent was employed on purely temporary bas.is, and
c as  he did not work for 240 days during the preceding year ·
   to constitute.c.ontinuous service, he could not claim any
   protection under tfre" lndusttfaLOisputes Act, 1947. It was
   also contended by the appellant that the claim of the
   respondent was time-barred, since he approached the
D labour court about eight years from ·the date of termination
   and therefore, the labour court ought not to have
  entertained the said claim.
       Dismissing the appeal, the Court
       HELD:1.1. Where a workman is employed for a
E seasonal work or temporary period, the workman cannot
  be said to be retrenched in view of Section 2(oo) (bb) of
  the Industrial Disputes Act, 1947. [Para 11) [767-F-G]
       1.2. In the normal course, it is the decision of the
  appropriate Government which is final in determination
F whether the said industry is seasonal in nature. However       ·~
  in the present case, as observed by the labour court and
  the High Court, nothing was brought on record by the
  appellant to suppo ·t their contention that fisheries is a
  seasonal industry. No order from the Government was
G produced by the appellant to state that the fisheries
  industry is seasonal. There was no mention of any
  decision on part of the appropriate Government with
                                                                 'It
  regard to declaring fisheries as a seasonal industry.
  Therefore, the appellant cannot be classified as a seasonal
  industry. [Para 12] (768-A-C]
H
       DIRECTOR, FISHERIES TERMINAL DIVISION v.            763
           BHIKUBHAI MEGHAJIBHAI CHAVDA
         Marinda Co-operative Sugar Mills Ltd. vs. Ram Kishan A
>   (1995) 5 sec 653, relied on.
         2.1. In the present case, the evidence produced by the
    appellant was not consistent. Being a workman on daily
    wage basis, it is obvious that he would have difficulty in
    having access to all the official documents, muster rolls B
    etc. in connection with his service. However he has come
    forward and deposed, so the burden of proof shifted to the
    employer/appellant to prove that he did not complete 240
~ days of service in the requisite period to constitute
    continuous service. The appellant inexplicably failed to C
    produce the complete records and muster rolls, inspite of
    the direction issued by the labour court to produce the ·
    same. In fact there was practically no challenge to the
    deposition of the respondent during cross-examination.
    [Para 15] [769-E-F; 770-A]
         2.2. Based on the pleadings and evidence on record, D
.. the labour court came to the conclusion that the services
    of some of the employees junior to the respondent was
    continued after the respondent was discharged from its
    duties. The dates of joining of some of the fellow
    employees of the respondent were not produced by the E
    appellant. The appellant clearly failed to prove that the
    services of no junior employee was continued when the
    services of the respondent was terminated. Thus, the
   ~retrenchment procedure laid down in Section 25G was
    also not followed. The findings on facts by the labour court
   cannot be termed as perverse and need no interference. F
   '[Para 16] [770-F-H]
        R.M. Yellatty vs. Assistant Executive Engineer (2006} 1
    SCC 106 and Municipal Corporation, Faridabad vs. Siri Niwas
    (2004) 8 sec 195, relied on.
                                                                  G
       3. There is no merit in the contention raised by the
)I appellant that there was unexplained delay on part of

   respondent-workman in approaching the labour court.
   The workman had approached the Conciliation Officer for
   resolving the dispute and it is only when the conciliation
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    764    SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.


A proceedings failed that the matter was referred to the
  labour court for final adjudication. [Para 17] [771-A-C]
                     Case Law Reference :
      (1995) 5 sec 653         relied on            Para· 11
      (2006) 1 SCC 106         relied on            Para 14
B     (2004) 8 SCC 195         relied on            Para 15
          CIVIL APPELi-ATE JURISOiCTION: Civil Appeal No. 7463
    of 2009.
          From the Judgment & Order dated 30.11.2007 of the High
    Court of Gujarat at Ahmedabad in Special Civil Application No.
C 2·9355 of 2007.
          R.P. Bhatt, Hemantika Wahi, Somanath Pradhan for the
  · Appellant.
          K. Sarada Devi, for the Respondents.
          The Judgment of the Court was delivered by
D         H.L. DATTU,J. 1. Leave granted.
          2. This is an appeal against the judgment and order of the          ,,,
    Gujarat High Court in S.C.A. No. 29355 of 2007 dated
    30.11.2007. By the impugned judgment, the court has affirmed
    the award passed by the labour court, Junagadh, in Reference
E Case No. 192 of 1995 dated 14th May, 2007, wherein and
    whereunder the labour court has directed the employer to
    reinstate the workman into service with 20% back wages.
          3. The facts in brief are : The Fisheries Terminal
    Department; ('F.T.D.' for short), the appellant herein, had come
F into existence sometime in the year 1976. The activities of F.T.D.
    inter alia consisted of providing landing facilities for catching fish
    in a clean and hygienic condition and forthat purpose, services
    of daily wage workm1~n were utilized as and when it was needed.
   While this practice was going on, the State Government by its
    order dated 17.10.1988, directed all the departments of the
G State Government to discontinue. the practice of engaging the
    services of daily wage workmen and in lieu of it to hire labourers .     .,,
   on contractual basis.
         4. The claim of the workman before the labour court was that
    he was employed by the· appellant on 1.12.1985 as watchman
H
  DIRECTOR, FISHERIES TERMINAL DIVISION v.    765
BHIKUBHAI MEGHAJIBHAI CHAVDA [H.L. DATTU, J.]
 and he was paid daily wages and his presence was also marked A
 in the muster roll. It was further stated, that, his services were
 terminated without giving notice and without complying with the
 provisions of Industrial Disputes Act. The stand of.the appellant
 before the labour court was that, the workman was employed on
daily wage basis in the year 1986 and the workman had worked 6
 till 1988 and in all these years, the workman had worked for 93
days, 145 days and 31 days respectively, and thereby the
workman had not worked for more than 240 days in any
 preceding year. It was also there plea, that, the appellant is a
 seasonal industry and, therefore, provisions under Section 25F
 of Industrial Disputes Act is not attracted.                        C
        5. The labour court on consideration of the oral and
 documentary evidence, has concluded that the appellant is an
 industry, since there is no evidence to show that the appropriate
 government had declared the appellant as a seasonal industry
or the work is performed intermittently. It has also observed, that, D
the appellant has not produced any documentary evidence to
show that the workman had not completed 240 days in the
 preceding year and was not in service till 1991 and, therefore,
adverse inference requires to be drawn that the workman has
completed continuous service of 240 day~ and, accordingly, has E
concluded that the appellant-employer could not have retrenched
the services of the workman without complying with the
 provisions of Industrial Disputes Act. In view of the aforesaid
finding and the conclusion reached, the labour court had directed
the appellant to reinstate the respondent with 20% back wages
for the period when the respondent was kept out of service.          F
       6. The award passed by the labour court was challenged
by the appellant before the High Court. The High Court has
endorsed the award passed by the labour court, on the ground
that the labour c~urt has rightly come to the conclusion that the
appellant has not established by leading cogent evidence that G
the appellant is not a seasonal industry. It is alsg observed, that,
once it has come In evidence that the workman has compl~teo
240 days of service in the preceding year, then the initial burden
is shifted on the employer to rebut the oral evidence of the
workman by producing relevant oral and documentary evidence H
    766    SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.


A· and since the appellant failed to produce the same before the
   labour court, it was justified in concluding that the workman had
   completed continuous service of 240 days during the preceding
   year and accordingly had dismissed the writ petition filed by the
   appellant.
8        7. Being aggrieved by the judgment and order passed by
   the High Court, the appellant is before us in this appeal.
        8. The learned counsel for the appellant submitted, that, the
   appellant industry is seasonal in nature and, the respondent was
   employed on a purely temporary basis and, therefore, the onus
   lies on the respondent/workman to prove that he had in fact
C worked for 240 days in the preceding year. It is further submitted
   that the claim of the workman was time barred and, therefore,
   the labour court ought not to have entertained the claim made
   by the workman, since the workman had approached the labour
   court nearly after eight years from the date he was supposed to
D. have been terminated from service by the employer.
        9. Per contra, the learned counsel for the respondent
   submitted that the workman immediately after his services were
   terminated by the employer, had approached the conciliation
   officer and on failure of the conciliation proceedings, had
E approached the State government to make reference of the
   dispute for adjudication before the labour court and, therefore,
   it cannot be said that the workman had approached the labour
   court after a long lapse of time. It is further submitted, that, the
   workman in his evidence, categorically had made statement
   befor~ the labour court that he had worked for more than 240
F days in a preceding ye13r and, since that evidence is not rebutted
   by the employer by producing the relevant oral and documentary
   evidence which would be in their possession, the labour court
   was justified in drawing adverse inference against the employer.
   It was further submitted, that, since the appellant.failed to prove
G before the labour court by producing necessary evidence that
   the appellant industry is seasonal in nature, the labour court has
   not committed any error whatsoever, to accept the oral assertion
   made by the appellant before the labour court. It is further
   submitted, since the findings of the labour court cannot be said
H as perverse findings or based on no evidence, the High Court
             DIRECTOR, FISHERIES TERMINAL DIVISION v.    767
           BHIKUBHAI MEGHAJIBHAI CHAVDA [H.L. DATTU, J.]
            was justified in declining to interfere with the findings of fact by A
....   )    the labour court in a petition filed under Article 227 of the
            Constitution of India.
                    10. From the facts as set out herein above and the
            submissions made by the learned counsel for the parties, the
            question that requires to be decided whether the labour court and B
            the High Court was justified in allowing the claim of the workman.
            It is not the case of the appellant that it is not an industry as defined
            under Section 2(J) of the Act, but it was its specific stand before
           the labour court and also the High Court that it is only a seasonal
            industry and employ workman like the respondent only during
           fishing season and are relieved at the end of the season and, C
           therefore, the labour court and the High Court were not justified
            in not only directing the reinstatement of workman into service
            but also the payment of back wages. This submission of the
            learned counsel in the appeal requires to be answered with
            reference to Section 25A of Industrial Disputes Act. The Section D
           is as under:
                   "25A. Application of sections 25C to 25E.-(1) Sections 25C
                   to 25E inclusive [shall not apply to industrial establishments
                   to which Chapter VB applies, or--] (a) to industrial
                   establishments in which less than fifty workmen on an
                                                                                      E
                   average per working day have been employed il)-ihe
                   preceding calendar month; or (b) to industrial
                   establishments which are of a seasonal character or in
                   which work is performed only intermittently.
                   (2) If a question arises whether an industrial establishment
                   is of a seasonal character or whether work is performed F
                   therein only intermittently, the decision of the appropriate
                   Government thereon shall be final."
                   11. It is now well settled by several judgments of this court,
           that, where a workman is employed for a seasonal work or
           temporary period, the workman cannot be said to be retrenched G
           in view of Section 2(00)(bb ). It is relevant to take note of what is
           stated by this court in the case of Marinda Co-operative Sugar
           Mills Ltd. vs. Ram Kishan (1995) 5 sec 653, it was st~ted by
           this court:
                   ".... that since the work done by the respondents is only a H
    768    SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.


A        seasonal work, the respondents cannot be said to have been
         retrenched in view of what is stated in sub clause (bb) of               .,
         Section 2(00) of the Act."                                        "
         12. In the normal course, it is the decision of the appropriate
    Government which is final in determination whether the said
B   industry is seasonal in nature. As has been observed by the
    labour court and the High Court, there has been nothing brought
    on record by the appellants to support their contention that
    fisheries is a seasonal industry. There has been no order from
    the Government which has been produced by the appellants to             ...
    state that the fisheries industry is seasonal. There has been no
c   mention of any decision on the part of the appropriate
    Government with regard to declaring fisheries as a seasonal
    industry. Therefore, we concur with the finding of the labour court
    wherein they have concluded that the appellant cannot be
    classified as a seasonal industry.
D        13. The next- c_ontention of the learned counsel for the
    appellant is that the respondent had not worked for 240 days
    during the preceding twelve months on daily wages and,                 ,.     ~


    therefore, the respondent cannot claim any protection under the
    provisions of Industrial Disputes Act, 1947. The case of the
    respondent before the labour court was that as he had completed .
E
    working for more than 240 days in a year, the purported order of
    retrenchment is illagal, as conditions precedent as contained in
    Section 25F of the Industrial Disputes Act, 1947 were hot
    complied with.
         14. Section 258 of the Act defines ''continuous service". In
F   terms of Sub section (2) of Section 256 that if a workman during
    a period of twelve calendar months preceding the date with
    reference to which c~lculation is to be made, has actually worked
    under the employer 240 days within a period of one year, he will
    be deemed to be in coritinuous service. The respondent claims
G   he was employed in the year 1985 as a watchman and his
    services were retrenched in the year 1991 and during the period
    between 1985to1991, he had worked for a period of more than
    240 days. The burden of proof ia on the respondent to show that
    he had worked for 240 days in preceding twelve months prior to
    his alleged retrenchment. The law on this issue appears to be
H
              DIRECTOR, FISHERIES TERMINAL DIVISION v.    769
            BHIKUBHAI MEGHAJIBHAI CHAVDA [H.L. DATTU, J.]

  t
             now well settled. This court in the case of R.M. Yellatty vs.        A
_,..
  f
            Assistant Executive Engineer [(2006) 1 SCC 106], has
             observed:
                  "However, applying general principles and on reading the
                  aforesaid judgments, we find that this Court, has repeatedly
                  taken the view that the burden of proof is on the claimant to   B
                  show that he had worked for 240 days in a given year. This
                  burden is discharged only upon the workman stepping up
                  in the witness box. This burden is discharged upon the
       .J         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 of        c
                  termination. There will also be no receipt of 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 of termination, if any, the wage register, the      D
                  attendance register, etc. Drawing of adverse inference
                  ultimately would depend thereafter on the facts of each
                  case."
                  15. Applying the principles laid down in the above case by
            this court, the evidence produced by the appellants has not been      E
            consistent. The appellants claim that the respondent did not work
            for 240 days. The respondent was a workman hired on a daily
            wage basis. So it is obvious, as this court pointed out in the
            above case that he would have difficulty in having access to all
            the official documents, muster rolls etc. in connection with his
            service. He has come forward and deposed, so in our opinion           F
-.          the burden of proof shifts to the employer/appellants to prove that
            he did not complete 240 days of service in the requisite period
            to constitute continuous service. It is the contention of the
            appellant that the services of the respondent were terminated in
            1988. The witness produced by the appellant stated that the           G
            respondent stopped coming to work from February, 1988. The
        ~   documentary evidence produced by the appellant is
            contradictory to this fact as it shows that the respondent was
            working during February, 1989 also. It has also been observed
            by the High Court that the muster roll for 1986-87 was not
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    770   SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.


A  completely produced. The appellants have inexplicably failed to
   produce the complete records and muster rolls from 1985 to
   1991, inspite of the direction issued by the labour court to
   produce the same. In fact there has been practically no challenge
                                                                        .\
                                                                                 -
   to the deposition of the respondent during cross-examination.
   In this regard, it would be pertinent to mention the observation
B
   of three judge bench of this court in the case of Municipal
   Corporation, Faridabad vs. Siri Niwas [(2004) 8 SCC 195],
  where it is observed:
         "A Court of Law even in a case where provisions of the              >
         Indian Evidence Act apply, may presume or may not
c       presume that if a party despite possession of the best
        evidence had not produced the same, it would have gone
         against this contentions. The matter, however, would be
         different where despite direction by a court the evidence is
        withheld."                                                               ,

                                                                                 '
D        16. It is not in dispute that the respondent's service was
  terminated without complying with the provisions of Section 25F
  of Industrial Disputes Act. Section 25G of the Act provides for        ,.
  the procedure for retrenchment. The section reads-                             '
        "25G. Procedure for retrenchment.- Where any workman in
        an industrial establishment, who is a citizen of India, is to
        be retrenched and he belongs to a particular category of
        workmen in that establishment, in the absence of any
        agreement between the employer and the workman in this
        behalf, the employer shall ordinarily retrench the workman
        who was the last -person to be employed in that category,
        unless for reasons to be recorded the employer retrenches                    I'

        any other workman."
        The labour court based on the pleadings and evidence on
  record has come to the conclusion that the services of some of
  the employees junior to the respondent was continued after the
  respondent was discharged from its duties. The dates of joining
  of some of the fellow employe.es of the respondent like
  Mohanbhai, Kalubhai and Nanjibhai were not produced by the             1

  appellants. The appellants have clearly failed to prove that the
  services of no junior employee was continued when the services
  of the respondent was terminated. Thus, the procedure le.id down
      DIRECTOR, FISHERIES TERMINAL DIVISION v.    771
    BHIKUBHAI MEGHAJIBHAI CHAVDA [H.L. DATTU, J.]
    in Section 25G has also not been followed. The findings on facts      A
)   by the labour cannot be termed as perverse and need no
    interference.
          17. It is also the case of the appellants that there is
    unexplained delay in approaching the labour court in adjudicating
    the imaginary grievance by the respondent-workman. In our view,       B
    there is no merit in this contention. The workman had approached
    the Conciliation Officer for resolving the dispute between the
    employer and the employee and it is only when the conciliation
    proceedings failed that the matter was referred to the labour court
    for final adjudication.
          18. In view ofthe above discussion, we do not see any good
                                                                          c
    ground to interfere with the impugned order. Accordingly, appeal
    requires to be dismissed and it is dismissed. No order as to
    costs.
    B.B.B.                                         Appeal dismissed.
                                                                          D