Holding

The burden of proving that a workman has worked for 240 days in a year lies on the workman, and the award of reinstatement is set aside.

Summary

Mahesh Chand, a workman, claimed that his termination in 1998 was illegal because he had continuously worked for more than 240 days in each calendar year from 1987 to 1998, invoking Section 25‑F of the Industrial Disputes Act, 1947. The employer, G.M., B.S.N.L. & Ors., contended that Chand was engaged on a purely temporary, part‑time basis with no sanctioned post of Safaiwala, and therefore the 240‑day requirement was irrelevant. The Industrial Tribunal and the Rajasthan High Court held in Chand’s favour, ordering his reinstatement and placing the onus on the employer to disprove the 240‑day claim. On appeal, the Supreme Court held that the burden of proving service of 240 days rests on the workman, not the employer, and that the lower courts erred in shifting this burden. Consequently, the award was set aside and the appeal was allowed.

Issues considered

The burden of proof for establishing continuous service of 240 days in a calendar year under Section 25‑F of the Industrial Disputes Act, 1947
Whether the award of reinstatement by the Tribunal and High Court should stand

Legislation cited

Industrial Disputes Act, 1947s. 25-F

Subjects

Industrial Disputes ActSection 25-Ftermination of serviceburden of proofcontinuous servicetemporary employmentreinstatementlabour law

Judgment

1-·"
[2008] 2 S.C.R. 950

A G.M., B.S.N.L. & ORS. ~
•"
v.
MAHESH CHAND
(Civil Appeal No. 19 of 2007)
FEBRUARY 15, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
,.._
...
Industrial Disputes Act, 1947 - s. 25-F - Termination of
service - Workman claiming continuous work for 240 days in
c a calendar year - Employer's stand that engagement was on
temporary basis and that there was no sanctioned post as
claimed by the workman - Tribunal and High Court directed
reinstatement putting the onus to prove 240 days continuous
'·
work on the employer- On appeal, held: Award is liable to be
D set aside - Courts below wrongly placed the onus to prove the
continuous 240 days work on the employer - In the facts of
the case also, the award unsustainable - Evidence - Onus of >-- -f
proof
Respondent-workman made a grievance that his
E services were illegally terminated, without compliance of
s. 25-F of Industrial disputes Act, 1947, as he had
continuously been in service from 1987 to 1998; and that [Y

he worked for 240 days in a calendar year. Stand of
appellant-employer was that the respondent was j

engaged on purely temporary basis. He was engaged I
F
~\..
only for 2 to 3 hours a day on some days; that no post of
'Safaiwala' was ever created. Industrial Disputes Tribunal
held his termination illegal holding that he had worked
for five hours a day. The award was passed directing his
G re-instatement with continuity of service. Single Judge as
well as Division Bench of High Court upheld the award.
Hence the present appeal. ~

Allowing the appeal, the Court

H 950
·-'.
G.M., B.S.N.L. & ORS. v. MAHESH CHAND 951

~·
HELD: 1.1 On the question whether the respondent A
had ·worked continuously for 240 days in a calendar year,
the Tribunal and the High Court have wrongly placed
the onus on the employer to prove the negative. [Para 4]
[953-G]
Range Forest Officer v. S. T. Hadiri1ani 2002 (3) SCC 25; B

.. ..l Essen Deinki v. Rajiv Kumar 2002 (8) SCC 400; Rajasthan
State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr.
2004 (8) SCC 161; Municipal Corporation, Faridabad v. Siri
Niwas 2004 (8) SCC 195; M.P Electricity Board v. Hariram
2004 (8) SCC 246; Manager, Reserve Bank of India, c
Bangalore v. S. Mani and Ors. 2005(5) SCC 1O~; Batala
Cooperative Sugar Mills Ltd. v. Sowaran Singh 2005 (7)
Supreme 165; Surendranagar District Panchayat v.
Dehyabhai Amarsingh 2005 (7) Supreme 307; R.M. Yellatti
v; The Asst. Executive Engineer JT 2005 (9) SC 340; ONGC D
~ ...._ Ltd. and Anr. v. Shyamal Chandra Bhowmik 2006 (1) SCC
337 - relied on.
1.2 The specific stand of the appellants in the
proceedings before the Tribunal and the High Court was
that there is no sanctioned post of Safaiwala. There is no E
finding recorded by the Tribunal or the High Court that
this stand is incorrect. Further, the respondent is also not
consistent as to the period for which he worked. At one
place he said he was working for five hours each day and
J:T other places he had stated that he was working for 8 F
hours. On the contrary, the appellant with reference to the
nature of work done categorically stated that on a part
· time basis depending on the need and requirement the
respondent was engaged for 2 to 3 hours periodically. The
work that was being done by the respondent was also G
• being done by his wife and his mother. Sometimes, no
order of appointment was admittedly issued to the
respondent. This fact is mis-conceived. In view of the
factual scenario of the instant case, the award made by
the Tribunal as affirmed by Single Judge and the Division H
~)..--
\

952 SUPREME COURT REPORTS [2008) 2 S.C.R.
.._
~
A Bench of High Court cannot be sustained and is set aside.
[Para 11] [958-D, E, F, G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 19
of 2007.

..
B From the Judgment and Order dated 31.08.2005 of the t-
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in
~·
D.S. Civil Special Appeal No. 789 of 2005.
Anupam Lal Das for the Appellants.

c K. Vijayan and Debasis Misra for the Respondent.
r
I

The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of a Division Bench of the Raj~sthan High Court, ·,
D Jaipur Bench, dismissing the Special Appeal filed under Section
18 of the High Court Ordinance Act, 1949 (in short the 'High ;...- .. ~
Court Act'). In the Special Appeal challenge was to the order
passed by a learned Single Judge in SB Civil Writ Petition No.
3514 of 2005. The learned Single Judge had upheld the award
made by the Central Government Industrial Tribunal, Jaipur (in
E
short the 'Tribunal').
Background facts in a nutshell are as follows:
Respondent made grievance that his services were illegally
terminated with effect from 13.10.1998. His case was that he
F had worked continuously from 1987 till 1998. He worked for ~

240 days in a calendar year. Therefore, his seniices could not
have been terminated without complying with the requirements
of Section 25-F of the Industrial Disputes Act, 1947 (in short the
'Act').
G
Appellants took the stand that the respondent was
engaged on a purely temporary basis and was engaged for
doing part time work on some days. The question of his having
• ~.

worked for more than 240 days is not therefore relevant. He
was actually engaged for 2 to 3 hours a day on some days. It
H
I
~-

G.M., 8.S.N.L. & ORS. v. MAHESH CHAND 953
[PASAYAT, J.]

was pointed out that there was no such post of Safaiwala ever A
created and, therefore, the claim was thoroughly mis-conceived.
The following reference was made to the Tribunal:
"Whether the action of management of Telecommunication
Department in terminating the services of workman Sh. B

- _.__ Mahesh Chand w.e.f. 13.10.98 was legal and justified? If
not, what relief the workman is entitled and from what
date?"
By its award dated 29.9.2004 the Tribunal came to hold
that the claim of the respondent was that he had worked for five c
hours a day and therefore wa~ entitled to be regularized as a
regular Safaiwala. Accordingly, it was held that termination of
the respondent from service is illegal and he is entitled to be re-
instated with continuity in service but without back wages ..
D
••
I
-4. Learned Single Judge of the High Court as noted above
dismissed the writ petition filed.
2. Learned counsel for the appellants submitted that the
casual and part time nature of the engagement is evident from
the fact that some times the mother and some times the wife of E
the respondent was engaged. The Tribunal noted the claim of
the respondent that respondent was being paid Rs.8/- per day.
Even according to his own, the respondent, which has also not
been accepted by the present appellants, was working for five
hours a day. F
3. Learned counsel for the respondent on the other hand
has submitted that he was working for nearly 8 hours every day
and, therefore, the orders of the Tribunal and the High Court
cannot be faulted.
G
4. On the question of whether the respondent had worked
continuously for 240 days in a calendar year the Tribunal and
the High Court have wrongly placed the onus on the employer
to prove the negative. This is clearly contrary to the decision of
this Court.
H
954 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 5. In a large number of cases the position of law relating to
the onus to be discharged has been delineated. In Range Forest
Officer v. S. T Hadimani (2002 (3) SCC 25), it was held as
follows:
"2. In the instant case, dispute was referred to the Labour
8 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
c 10.8.1998 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
D 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
E not, though reliance is placed on the decision of this Court
in State of Gujarat v. Pratamsingh Narsinh Parmar (2001)
9 SCC 713. 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
F 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
G 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 Teceipt of salary or
H wages for 240 days or order or record of appointment or
'-~~

G.M., B.S.N.L. & ORS. v. MAHESH CHAND 955
[PASAYAT, J.]

I& "Ji.. engagement for this period was produced by the workman. A
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 8
allegedly engaged prior to his termination, within two
..._ months from today."
=-
The said decision was followed in Essen Deinki v. Rajiv
Kumar (2002 (8) SCC 400).
c
6. In Rajasthan State Ganganagar S. Mills Ltd. v. State of
Rajasthan and Anr. (2004 (8) sec 161) the position was again
I

reiterated in paragraph 6 as follows:
"It was the case of the workman that he had worked
for more than 240 days in the year concerned. This claim D
was denied by the appellant. It was for the claimant to lead
r ·-..(
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 E
any Court or Tribunal to come to the conclusion that in fact
the claimant had worked for 240 days in a year. These
aspects were highlighted in Range Forest Officer v. S. T.
Hadimani (2002 (3) sec 25). 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
F

claimed."
7. In Municipal Corporation, Faridabad v. Siri Niwas G
i ,.."'-,..
(2004 (8) sec 195), it was held that the burden was on the
f
workman to show that he was working for more than 240 days
in the preceding one year prior to his alleged retrenchment. In
M. P Electricity Board v. Hariram (2004 (8) SCC 246) the
position was again reiterated in paragraph 11 as follows: H
~t· I

956 SUPREME COURT REPORTS (2008] 2 S.C.R

A "The above burden having not been discharged and the Jr
.Iii
. Labour Court 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
B judgment of this Court in the case of Municipal
Corporation, Fariqabad v. Siri Niwas JT 2004 F) SC 248
wherein this Court disagreed with the High Court'$ view of A
drawing an adverse inference in regard to the non-
production of certain relevant documents. This is what this
c Court had to s'ay in that regard:
"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
D 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
.E required to be taken into consideration is 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
F
.,
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."
G
· 8. In Manager, Reserve Bank of India, Bangalore v. S.
<~
Mani and Ors. (2005(5) SCC 100) a three-Judge Bench of this
Court again considered the matter and held that the initial
burden of proof was on the workman to show that he had
H completed 240 days of service. Tribunal's view that the burden
~
G.M., B.S.N.L. & ORS. v. MAHESH CHAND 957
[PASAYAT, J.]

..,,, was on the employer was held to be erroneous. In Batala A
Cooperative Sugar Mills Ltd. v. Sowaran Singh (2005 (7)
Supreme 165) it was held as follows:
"So far as the question of onus regarding working for more
than 240 days is concerned, as observed by this Court in
Range Forest Officer v. S. T Hadimani (2002 (3) SCC B
25) the onus is on the workman."
..i._
=" 9. The position was examined in detail in Surendranagar
District Panchayat v. Dehyabhai Amarsingh (2005 (7) Supreme
307) and the view expressed in Range Forest Officer, Siri c
Niwas, M.P Electricity Board cases (supra) was reiterated.
10. In R.M. Yellatti v. The Asst. Executive Engineer (JT
2005 (9) SC 340), the decisions referred to above were noted
and it was held as follows:
D
"Analyzing the above decisions of this court, it is clear that
i~ 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
E
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 F
~
termination of services of daily waged earner, 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 (claimant) can only call upon the employer to
produce before the court the nominal muster roll for the G
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 facts of each case. The above decisions however make
it clear that mere affidavits or self-serving statements made H

lllf
.....,.,,.
\

)

958 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 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
B suppression by the claimant workman will not be the ground
for the tribunal to draw an adverse inference against the
management. Lastly, the above judgments lay down the ..&.
basic principle, namely, that the High Court under Article •
226 of the Constitution will not interfere with the concurrent
c findings of fact recorded by the labour court unless they
are perverse. This exercise will depend upon facts of each
case."
(See ONGC Ltd. And Anr. v. Shyamal Chandra Bhowmik
c2006 c1) sec 337).
D
11. Additionally, the specific stand of the appellants in the
proceedings before the Tribunal and the High Court was that ).-- ~

there is no sanctioned post of Safaiwala. There is no finding
recorded by the Tribunal or the High Court that this stand is
incorrect. Further, the respondent is also not consistent as to
E the period for which he worked. At one place he said he was
working for five hours each day and other places he had stated
that he was working for 8 hours. On the contrary, the· appellan-t
with reference to the nature of work done categorically stated
that on a part time basis depending on the need and requirement )'--,
F the respondent was engaged for 2 to 3 hours periodically. ....,-~

Interestingly, the work that was being done by the respondent
was also being done by his wife and his mother. Sometimes,
no order of appointment was admittedly issued to the
respondent. This fact is mis-conceived. In view of the aforesaid
G factual scenario, the award made by the Tribunal as affirmed by
learned Single Judge and the Division Bench cannot be -.i;--..
sustained and is set aside. The appeal is allowed with no order
as to costs.
K.K.T. Appeal allowed.
H