Holding

The Supreme Court held that 'continuous service' under Section 2(g) means a workman must have worked at least 240 days in any calendar year of his service, the employer bears the onus to produce relevant attendance records, and failure to do so justifies an adverse inference under Section 114(g) of the Evidence Act; consequently, the High Court's decision was affirmed.

Summary

The workmen claimed they were illegally retrenched because they had completed at least 240 days of service in a calendar year, satisfying the condition precedent to retrenchment under Section 6N of the U.P. Industrial Disputes Act, 1947. The employer produced only an extract of the attendance register for the twelve months immediately before the retrenchment, showing the workmen had not met the 240‑day threshold, and failed to produce earlier attendance registers or muster rolls. The Industrial Tribunal accepted the employer’s evidence and awarded in its favour, but the Allahabad High Court set aside the award, drawing an adverse inference under Section 114(g) of the Evidence Act for the employer’s non‑production and interpreting "continuous service" to mean 240 days in any calendar year of service, not just the year preceding retrenchment. On appeal, the Supreme Court affirmed the High Court’s interpretation, held that the employer bore the onus to produce the missing records and that the adverse inference was proper, and upheld the reinstatement and back‑wage directions. The special leave petitions were dismissed.

Issues considered

The meaning of 'continuous service' under Section 2(g) of the U.P. Industrial Disputes Act, 1947 for the purpose of Section 6N retrenchment conditions.
Whether the 240‑day service requirement must be satisfied in the calendar year immediately preceding retrenchment or in any calendar year during the employee's service.
The allocation of the burden of proof for establishing the 240‑day service requirement.
Whether non‑production of attendance registers and muster rolls by the employer warrants an adverse inference under Section 114 illustration (g) of the Indian Evidence Act.
The scope of the High Court's power under Articles 226 and 227 to interfere with findings of fact of an industrial tribunal.

Legislation cited

Constitution of Indias. Article 226, s. Article 227
Indian Evidence Act, 1872s. 114(g)
Industrial Disputes Act, 1947 (Central)s. 25F
U.P. Industrial Disputes Act, 1947s. 2(g), s. 6N

Subjects

re‑trenchmentcontinuous serviceburden of proofadverse inferenceindustrial disputeU.P. Industrial Disputes ActEvidence Actjudicial reviewArticle 227Article 226

Judgment

MIS. SRI RAM INDUSTRIAL ENTERPRISES LTD. A
"
MAHAK SINGH AND ORS.

MARCH 8, 2007

[DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.]
B

U.P. Industrial Disputes Act, 1947-ss. 2(g) and 6-N-Workmen with 4
years service-Retrenched-Dispute-Workmen filing documents showing their
continuous service-Sought production of Attendance Register and other C
documents from Management-Production of extract of attendance record of
one year immediately preceding the retrenchment showing non-completion
of 240 days in that year-Non-production of other documents-Award by the
Tribunal against the workmen-Writ Petition-Award set aside drawing
adverse presumption against the management for non-production of documents
in its possession, holding that management failed to discharge its onus-On D
appeal, held: High Court rightly set aside the award-Management failed to
discharge its onus by non-production ofdocuments-Workmen had discharged
their initial onus by production of the documents in their possession-The
condition precedent for retrenchment under the act is continuous service of
240 days in any calendar year during service and not the immediate preceding E
year ji·om the date of retrenchment-Labour Laws-Retrenchment-Evidence
Act, 872-S. 114 illustration (g)-Evidence-Burden of proof

Constitution of India, 1950-Articles 226 and 227-Writ jurisdiction--
Judicial review-Of finding of facts by courts be/ow-Scope of-Held: In
appropriate cases finding of facts can be interfered with-The powers of F
judicial review under Article 227 empowered the High Court to ensure that
inferior courts properly discharged their duties and obligations.

Words and Phrases: 'Continuous service'-Meaning of in the context of
U.P. Industrial Disputes Act, 1947.
G
An industrial dispute, with regard to retrenchment of the workmen-
respondents was referred to the Industrial tribunal. The case of the workmen
was that they were illegally retrenched as they had continuously worked from
the date of their appointment for more than 240 days in a calendar year till
783 H
784 SUPREME COURT REPORTS [2007] 3 S.C.R.

A the termination of their services. Respondents produced bonus and wage slips,
deduction of Provident Fund slips, attendance cards of various months and
t •
other documents available with them. They filed an application asking the
management-petitioner to produce the documents in its custody i.e. Attendance
Register, Payment of Bonus record and other documents relating to
B engagement of the respondents as workmen. Petitioner produced only the
extract of the attendance record of the last 12 calender months immediately
preceding the date of their retrenchment showing that none of the workmen
had worked for more than 240 days during the said period. Petitioner did not
assign any cogent reason for not producing the Attendance Register of the
previous years. Tribunal passed the award in favour of the management finding
C that the workmen had not put in 240 days of service in the calender year
preceding the termination of their sen·ices.

In Writ Petition against the award, High Court held, that in view of the
non-production of the documents, the petitioner failed to discharge the onus
D and disprove the workmen's' claim, and hence tribunal should have drawn an
adverse presumption under Section 114 illustration (g) of Evidence Act against
the petitioner and that in view of the expression "continuous service" under
Section 2(g) ofU.P. Industrial Disputes Act, 1947, termination of the services """
of the workmen was in violation of Section 6 N of the U.P. Act. High Court
E directed reinstatement of the workmen with continuity of service and halfback
wages w.e.f. the date of their illegal retrenchment. Hence the present appeal.

Dismissing the appeal, the Court

HELD: I.I The exclusion of the word "preceding" from Section 2 (g) of
F the U.P. Industrial Disputes Act, 1947 indicates that a workman in order to
be in continuous service may have worked continuously for a period of 240
days in any calendar year during his period of service. [Para 30[ (795-G]

U.P. Drugs and Pharmaceuticals Company ltd v. Ramanuj Yadav and
Ors. [2003[ 8 SCC 334, relied on.
G
1.2 In the light of the case made out by respondents that they had never
worked as temporary hands but had worked continuously from the date of their '°
appointment till the date of their retrenchment, without break, the T dbunal
was persuaded on behalf of the petitioner to decide the case of the workmen
H on the basis of the materials produced by the petitioner for the year preceding
SRI RAM INDUSTRIAL ENTERPRISES LTD. 1·. MAHAK SINGH 785

the date of termination of their services from which it was shown that the A
workmen had not completed 240 days of continuous service in the said year.
The said approach was erroneous. The petitioner had wrongly described the
documents relating to attendance for the years 1991 cowards as far as the
respondents are concerned, as being irrelevant. !Paras 30, 31and321

U.P. Drugs and Pharmaceuticals Company Ltd. v. Ramanuj Yadav and B
Ors. 12003] 8 SCC 334, relied on.

1.3 High Court adopted the correct approach while deciding the
controversy between the parties upon a correct understanding of the law as
. contained in Section 6N read with Section 2(g) of the U. P. Act which is
applicable to these petitions. Having correctly interpreted the provisions of C
Section 6N of the U.P. Act, the High Court rightly drew an adverse presumption
for non-production of the Attendance Registers and the Muster Rolls for the
years 1991 onwards. The best evidence having been withheld, the High Court
was entitled to draw such adverse inference. The workmen had discharged
th~ir initial onus by production of the documents in their possession. D
!Paras 33 and 34] (796-E, F, G]

R.M Ye/latty v. Assistant Executive Engineer, 1200611 SCC 196, relied
on.

Range Forest Officers v. ST. Hadmimani, 12002] 3 SCC 25, referred to. E

2. In appropriate cases, the High Court in Writ Jurisdiction could
interfere with the findings of fact of the courts below. In any event, the powers
of judicial review of the High Court under Article 227 of the Constitution
are very wide and it empowered the High Court to ensure that the courts and
tribunals, inferior to the High Court, discharged their duties and obligations. F
:. (Para 25]

Trambak Rubber Industries Ltd v. Nashik Workers Union and Ors. (2003]
6 sec 416, relied on.

CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) Nos. G
16456-16460 of2005.

From the Judgment and Order dated 15.4.2005 of the High Court of
Judicature at Allahabad in C.W.P. No. 20490, 26563, 26563, 26564 and 26567
of 1999.
H
786 SUPREME COURT REPORTS [2007] 3 S.C.R.

A Ashok Desai and Jayant Bhushan, Meera Mathur for the Appellant.
~ .
K.V. Yishwanathan, Devvrat, Nikhil Majithia, Rajeev Singh and Anish
Kumar Gupta for the Respondents.

The Judgment of the Court was delivered by
B
ALT AMAS KABIR, J. I. Five different writ petitions were filed by the
different respondents in these special leave petitions before the High Court
of Judicature at Allahabad against the awards made by the Industrial Tribunal
on 20th June, 1998. The said writ petitions having been allowed by a common
judgment dated 15th April, 2005, the petitioner herein, which was the common
c respondent in all the writ petitions, has filed these special leave petitions
questioning the judgment and order of the Allahabad High Court.

2. The writ petitioners/respondents herein claimed to have been
appointed by the petitioner between the years 1987-1991 and it is their case
D that they worked continuously from the date of their appointment till they
were retrenched in the years 1994 and 1995 respectively. The specific case
made out by the respondents is that although they have worked continuously
from the date of their appointment for more than 240 days in a calendar year,
they have been illegally retrenched from service in violation of the provisions
of Section 6 N of the U.P. Industrial Disputes Act, 1947 (for short 'the U.P.
E Act').

3. The respondents.raised a dispute relating to their retrenchment which
was ultimately referred by the State Government to the Tribunal under Section
4 K of the aforesaid Act to determine as to whether the termination of the
F services of the workmen by the employer was just and/or illegal. Pursuant to
the said References, five separate Adjudication Cases, being Nos. 134, 139, 132,
)._
129 and 127 of 1995 were registered by the Presiding Officer, Industrial
Tribunal (V), U.P.

4. In support of their contention that they had been illegally retrenched,
G the respondents submitted that not only had they worked continuously from
the date of their appointment till their services were terminated, but that they
had been allowed grade number and provident fund number and other service t
benefits. It is also the case of the respondents that as they had demanded
other benefits to which they were entitled, their services were terminated
without any notice and compensation being given to them. They accordingly
H
SRIRAM INDUSTRIAL ENTERPRISES LTD. r. MAHAK SINGH [AL TAMAS KABIR. J.] 787

claimed reinstatement in service with all back wages. A
5. The case of the petitioner herein is that since the sugar industry is
a seasonal industry, most of the work force are engaged as casual and
temporary hands during the operational season and that this state of affairs
is common to the entire sugar industry. It was also the case of the petitioner
that the real dispute was not with regard to the termination of the services B
of the workmen, but with regard to their claim for regularisation of their
services. It was also the case of the petitioner that the services of the
workmen had never been terminated since none of them had worked for 240
days in the last 12 calendar months immediately preceding their alleged date
of termination.
c
6. As recorded by the Tribunal, the respondents had produced bonus
slips, wage slips, deduction of provident fund slips and attendance cards for
various months and other documents available to them. They had also
requested the petitioner herein to produce certain documents which were in
its custody and iucluded the Attendance Register, payment of bonus record D
and various other documents relating to the engagement of the respondents
as workmen under it. Admittedly, on behalf of the petitioner herein, only the
extract of the attendance record of the last 12 calendar months of the workmen
immediately preceding the date of their retrenchment had been produced from
which it was evident that none of the workmen had worked for more than 240
days during the said period. The Tribunal also noted that the petitioner had E
failed to assigr. any cogent reason for not producing the Attendance Registers
of the previous years and allowed the workmen to lead secondary evidence
in support of their case.

7. The Tribunal did not lay any importance to the non-production of the F
documents asked for on the ground that the petitioner did not keep such
record relating to the temporary hands and relied on the documents that had
been produced to come to a finding that the workmen had not put in 240 days
of service in a calendar year preceding the termination of their services.

8. Being aggrieved by the awards passed by the Tribunal, the workmen G
filed separate writ petitions praying for quashing of the impugned awards and
declaring their retrenchment to be illegal, together with a prayer to reinstate
them in service with full back wages and continuity of service.

9. Drawing an adverse inference against the petitioner herein for non-
H
788 SUPREME COURT REPORTS [2007] 3 S.C.R.

A production of the documents in its possession and holding that the petitioner
had failed to discharge the onus and disprove the workmens' claim, the High ~ •
Court held that under the circumstances the Tribunal should have drawn an
adverse presumption under Section 114 Illustration (g) of the Indian Evidence
Act, 1872 against the petitioner. Taking further note of the expression
"continuous service" under Section 2(g) of the U.P. Act, the High Court
B found that the termination of service of the workmen was in violation of
Section 6N of the aforesaid Act. Basing its decision on its aforesaid findings,
the High Court quashed the awards passed in the adjudication cases referred
to above and directed the petitioner herein to reinstate the workmen/
respondents herein with continuity of service and half back wages with effect
C from 1995, being the date of their illegal retrenchment. These special leave
petitions have been filed against the common judgment of the High Court by
which the five writ petitions were disposed of with the above-mentioned
directions.

I 0. The case made out by the petitioner herein before the Tribunal and
D the High Court was reiterated by Mr. Ashok Desai, learned senior advocate,
appearing for the petitioner. The main thrust of his submission was that since
the respondents had not completed 240 days of service in the year preceding
the date of alleged termination, the High Court had erroneously reversed the
findings of the Tribunal on such score. Mr. Desai reiterated the contention
E of the petitioner that work in the sugar industry was of a seasonal nature and
most of the work force was engaged as casual labour on a temporary basis,
which was generally confined to six to seven months in a year. Mr. Desai
submitted that the Tribunal had correctly assessed the situation and the High
Court by drawing an adverse presumption for non-production of the
Attendance Register of prior years, had erroneously arrived at the conclusion
F that the respondents-workmen had, in fact, worked for more than 240 days
in a calendar year prior to termination of their services. .i.

I I. Mr.Desai submitted that it is settled- l!iw that the onus of proof of
having worked for 240 days within a calendiir year is on the employee.
G According to Mr. Desai, the employee was requ~d to discharge the burden
of proving that he had actually worked for 240 days in .,a calendar year, but
the High Court had wrongly shifted the onus on the employer in contravention
t
of the law as laid down by this Court in Range Forest Officer v. S.T. Hadimani,
reported in (2002] 3 SCC 25. In the said case, this Court while considering a
similar issue observed as follows:-
H
SRI RAM INDUSTRIAL ENTERPRISES LTD 1· MAHAK SINGH [AL TAMAS KABIR. J] 789

"In our opinion, the Tribunal was not right in placing the onus on the A
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." B

12. Mr. Desai also referred to the decision of this Court in the case of
Municipal Corporation, Faridabad v. Siri Niwas, reported in [2004] 8 SCC
195. In the said case, the respondent's case relating to his termination from
service had been referred to the Labour Court. His case before the Tribunal C
was that he had completed working for 240 days in a year and the order of
retrenchment was, therefore, illegal as conditions precedent for passing such
an order as contained in Section 25F of the Industrial Disputes Act, J947, (for
short 'the Central Act') had not been complied with. Section 25F of the Central
Act is reproduced hereinbelow:-
D
Conditions precedent to retrenchment of workmen.

''25F. No workman employed in any industry who has been in
continuous service for not less than one year under an employer shall
be retrenched by that employer until -

(a) the workman has been given one month's notice in wntmg E
indicating the reasons for retrenchment and the period of notice
has expired, or the workman has been paid in lieu of such notice,
wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days' average F
pay for every completed year of continuous service or any part
thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate
Government or such authority as may be specified by the
appropriate Government by notification in the Official Gazette." G

13. The contention of the appellant in the said case however was that
the respondent had worked only for 136 days during the preceding 12 months
on daily wages and had no lien over the said job. In that background, this
Court held that the burden of proof was on the respondent-workman to show
H
790 SUPREME COURT REPORTS (2007] 3 S.C.R.

A that he had worked for 240 days in the preceding 12 months prior to his
retrenchment.

14. The same view was expressed by this Court in Surendranagar
District Panchayat v. Dahyabhai Amarsinh, reported in [2005] 8 SCC 750,
wherein this Court while referring to the decisions of this Court in the case
B of Range Forest Officer (supra) and Municipal Corporation, Faridabad
(supra) and two other decisions in the case of Rajasthan State Ganganagar
S. Mills Ltd. v. State of Rajasthan and Anr., reported in [2004] 8 SCC 161 and
M.P. Electricity Board v. Hariram, reported in (2004] 8 SCC 246, reiterated
that the burden of proof lies on the workman to show that he had worked
C continuously for 240 days in the preceding one year prior to his retrenchment
and it is for the workman to adduce evidence apart from examining himself
to prove the fact that he had been employed for the said period by the
employer. ·

15. Various other decisions were also referred to by Mr. Desai on the
D aforesaid point which are in consonance with the decision of this Court in
Range Forest Officer (supra).

16. Mr. Desai also contended that drawing an adverse presumption for
non-production of evidence is not applicable in all cases where other
E circumstances may exist on the basis whereof such intentional non-production
may even be found to be justifiable on reasonable grounds. In the instant
case, Mr. Desai submitted that since in paragraph 11 of the respondent's
written statement before the Industrial Tribunal the pleading was restricted to
the fact that he h~d worked for more than 240 days in the year preceding the
F date of termination, the appellant had thought it fit to produce the Attendance
Register for the said period only, namely, for the period comprising the year
preceding the date of termination of the services of the respondents. In fact,
it was the case of the appellant before the Tribunal, as also the High Court,
that the Appellant-company did not maintain the records in respect of
temporary posts. He urged that since the workmen had produced various
G documents in support of their claim that they had worked continuously for
more than 240 days they should also have proof of their having worked for
240 days in any preceding year which could have been produced before the
Tribunal in order to prove that they had actually worked for 240 days
continuously during 12 calendar months in any year prior to termination of
H their services. Mr. Desai submitted that the respondents had failed to discharge
SRIRAM INDUSTRIAL ENTERPRISES LTD. r. MAHAK SINGH [AlTAMAS KABIR. J. J 79 J

their onus of proving the aforesaid fact and the Tribunal had rightly rejected A
their contention.

17. Mr. Desai reiterated the fact that in one case, the respondent had
worked for only 162.5 days in the 12 months preceding the date of tennination
of his services. Mr. Desai also stated that the respondent had not worked at
all in the months of April, May, July, September and December, 1994 which B
fact had not been denied on behalf of the respondents.

18. Mr. Desai contended that most of the documents asked to be
produced on behalf of the respondents were irrelevant to the fact at issue
since even the Tribunal had framed an issue as to whether the concerned C
workman had worked for more than 240 days during the last one year of
service. It is on such basis that the Attendance Register for the preceding
year had been produced on the basis whereof the Tribunal came to the
finding that the respondent had not put in more than 240 days of service on
!st February, 1995.
D
19. Mr. Desai urged further that the mere statement on affidavit of a
workman that he had worked for 240 days continuously does not constitute
sufficient proof in the absence of other evidence. The said principle was
referred to in the Range Forest Officer (supra) case wherein it was held that
filing of an affidavit is only the statement made by the workman in his own E
favour which could not be regarded as sufficient evidence for any Court or
Tribunal to arrive at a conclusion that the workman had, in fact, worked for
240 days in a year. It was submitted that the same principle was reiterated by
this Court in the case of RBI v. S. Mani, reported in [2005] 5 SCC JOO.

20. Mr. Desai submitted that while the Tribunal had correctly assessed F
the legal position, the High Court had wrongly shifted the burden of proving
that the workman had worked for 240 days or more in a calendar year on the
employer. It was submitted that having proceeded on such erroneous basis,
the High Court had arrived at a wrong conclusion, in the absence of any other
material evidence, that the respondents had, in fact, worked for more than 240 G
days in a calendar year preceding the date oftennination of their services and
such finding was, therefore, liable to be set aside.

21. Mr. Viswanathan, learned advocate, who appeared for the workmen
submitted that while the High Court had not disturbed the findings of fact, H
792 SUPREME COURT REPORTS [2007) 3 S.C.R.

A it had only corrected the jurisdictional error of the Labour Court which failed
to consider the difference in the definition of "continuous service" mentioned ( .
in Section 258 2(a) of the Central Act and in Section 2 (g) of the U.P. Act.
He pointed out that in the definition given in the U.P. Act, the word "preceding"
has not been used. Consequently, it was urged that Section 2 (g) of the U.P.
B Act does not require a workman to prove that he had worked for 240 days
continuously only during the preceding period of 12 months prior to termination
of his services. The workman was, therefore, entitled to show that he had
worked for 240 days continuously in a calendar year for ar.y year prior to
termination of his services. Mr. Viswanathan submitted that the said period
was not confined under the U.P. Act only to the year preceding the date of
c termination.

22. In support of his submissions Mr. Viswanathan relied on the decision
of this Court in U.P. Drugs and Pharmaceuticals Company Ltd. v. Ramanuj
Yadav and Ors.. reported in [2003) 8 SCC 334, where the said position has
D been examined and explained.

23. Regarding Mr. Desai's submissions that this Court had consistently
laid down that it is for the workmen to prove that they had worked for 240
days in a calendar year, Mr. Viswanathan submitted that this Court had in the
case of R.M. Ye/fatty v. Assistant Executive Engineer, reported in [2006) I
E sec 106, observed as under:-
"Analysing the above decisions of this Court, it is clear that the
provisions of the Evidence Act in terms do not apply to the proceedings
under Section I 0 of the Industrial Disputes Act. However, applying
general principles and on reading the aforesaid judgments, we find
F
that this Court, has repeatedly taken the view that the burden of 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 up
in the witness box. This burden is discharged upon the workman
adducing cogent evidence, both oral and documentary. In cases of
G termination of services of daily-waged earners, there will be no letter
of appointment of 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
H any, the wage register, the attendance register, etc. Drawing of adverse
SRIRAM INDUSTRIAL ENTERPRISES LTD. 1·. MAHAK SINGH [ALTAMAS KABIR,). J 793

inference ultimately would depend thereafter on the facts of each A
" ) case. The above decisions however make it clear that mere affidavits
or self-serving statements made 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 laid down that mere non-production of B
muster rolls per se without any plea of 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 concurrent findings of
fact recorded by the Labour Court unless they are perverse. This C
exercise will depend upon the facts of each case."

24. Mr. Viswanathan submitted that in these cases, the workmen had
discharged their initial onus by producing whatever documents were in their
custody. The onus had thereafter shifted to the petitioner when the workmen D
asked for production of Attendance Registers and the Muster Rolls from 1991
onwards. On the failure of the petitioner to produce the said documents, the
High Court had rightly drawn an adverse presumption.

25. Mr. Viswanathan then urged that in appropriate cases, the High
Court in Writ Jurisdiction could interfere with the findings of fact of the courts E
below as had been held by this Court in the case of Trambak Rubber
Industries Ltd. v. Nashik Workers Union And Ors.. reported in [2003] 6 SCC
416. In any event, the powers of judicial review of the High Court under
Article 227 are very wide and it empowered the High Court to ensure that the
courts and tribunals, inferior to the High Court, discharged their duties and F
obligations.

26. Mr. Viswanathan urged that the workmen had produced whatever
documents were in their possession, such as, attendance cards, wage slips,
bonus slips, provident fund deduction slips from 1991 onwards and since
other relevant documents such as attendance registers and muster rolls were G
with the petitioners, the workmen filed an application for summoning the said
documents which were, not however, produced by the petitioner on account
. whereof the High Court was compelled to draw an adverse presumption in
terms of Section 114, Illustration (g) of the Evidence Act.

27. Mr. Viswanathan submitted that while the Tribunal had failed to H
notice the difference in the definition of the expression "continuous service"
794 SUPREME COURT REPORTS (2007) 3 S.C.R.

A in Section 6 N of the U.P. Act as against its definition in Section 25 B in the
Central Act, the High Court had correctly interpreted the same in the judgment
1
~ .
impugned in these proceedings.

28. Mr. Viswanathan submitted that no case had been made out on
behalf of the petitioner to interfere with the findings of the High Court and
B the directions ultimately given therein to reinstate the respondents-workmen
and to pay them half their back wages with effect from 1995 when their
services were illegally tenninated.

29. Having carefully considered the submissions made on behalf of the
C respective parties and the statutory provisions, we are of the view that a
decision in this matter will depend on the understanding of the expression
"continuous service" as used in Section 6 N read with Section 2 (g) of the
U.P. Act as against its usage in Section 25 B (2) (a) (ii) of the Central Act.
In order to appreciate the difference between the two provisions, Sections 6N
and 2(g) of the U.P. Act and Section 25 B 2 (a) (ii ) of the Central Act are
D reproduced hereinbelow:-
"6-N. Conditions precedent to retrenchment of workmen.-- No
workman employed in any industry who has been in continuous
service for not less than one year under an employer shall be
retrenched by that employer until-
E
(a) the workman has been given one month's notice in writing indicating
the reasons for retrenchment and the period of notice has expired
or the workman has been paid in lieu of such notice wages for
the period of notice:
F Provided that no such notice shall be necessary if the retrenchment
is under an agreement which specifies a date for the termination of
service;
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days' average
G pay for every completed year of service or any part thereof in
excess of six months, and
(c) notice in the prescribed manner is served on the State
Government.
H 2g. 'Continuous service' means uninterrupted services, and includes
. service which may be interrupted merely on account of sickness
SRIRAM INDUSTRIAL ENTERPRISES LTD. r. MAHAK SINGH IALTAMAS KABIR. J] 795

or authorized leave or an accident or a strike which is not illegal, A
.. t or a lock-out or a cessation of work which is not due to any fault
~~··
on the part of the workman, and a workman, who during a period
of twelve calendar months has actually worked in an industry for
not less than two hundred and forty days shall be deemed to
have completed one year of continuous service in the industry.
B
Explanation.-In computing the number of days on which a workman

., (i)
has actually worked iii an industry, the days on which -
he has been laid off under the agreement or as permitted by
standing order made under the Industrial Employment (Standing
Orders) Act, 1946, or under this Act or under any other law c
applicable to the industrial establishment, the largest number of
days during which he has been so laid off being taken into
account for the purposes of this clause,
(ii) he has been on leave with full wages, earned in the previous
year, and D

.. (iii) in the case of a female, she has been on maternity leave; so
however that the total period of such maternity leave shall not
exceed twelve weeks, shall be included;
Definition of continuous service.
E
258. For the purposes of this Chapter,-
(2) Where a workman is not in continuous service within the meaning
of clause ( 1) for a period of one year or six months, he shall be
deemed to be in continuous service under an employer-
F
(a) for a period of one year, if the workman, during a period of
twelve calendar months preceding the date with reference to
which calculation is to be made, has actually worked under the
employer for not less than-
(ii) two hundred and forty days, in any other case;"
G
30. _As pointed out by Mr. Viswanthan, the exclusion of the word
.;. "preceding" from Section 2 (g) of the U.P. Act indicates that a workman in
order to be in continuous service may have worked continuously for a period
of 240 days in any calendar year during his period of service. In fact, such
an interpretation has already been given by this Court in the case of UP. H
•
-
796 SUPREME COURT REPORTS (2007) 3 S.C.R.

A Drugs and Pharmaceuticals Company Ltd. (supra). The case made out by the
respondents before the Tribunal was also on the same lines in the Adjudication
f •
cases filed before the labour court, where the respondents had made out a
case that they had never worked as temporary hands but had worked
continuously from 26th February, 1991 to 3 I st January, I995 without break.

B 3 I. In the light of the aforesaid case made out by the respondents, the
Tribunal was persuaded on behalf of the petitioner herein to decide the case
of the workmen on the basis of the materials produced by the petitioner for
t
the year preceding the date of termination of their services from which it was
shown that the workmen had not completed 240 days of continuous service
C in the said year.

32. The said approach, in our view, was erroneous in view of the
decision of this Court in the case of U.P. Drugs and Pharmaceuticals Company
Ltd. (supra). The petitioner had wrongly described the documents relating to
attendance for the years 199 I onwards as far as the respondents are concerned,
D as being irrelevant and the Tribunal has also accepted the said reasoning ..
Consequently, instead of drawing an adverse presumption for non-production
of the said records, the Tribunal accepted the contention of the petitioner that
the workmen had not worked for more than 240 days in the year preceding
the date of their termination nor had the workmen filed any proof to show
E otherwise.

33. In our view, the High Court adopted the correct approach while
deciding the controversy between the parties upon a correct understanding
of the law as contained in Section 6 N read with Section 2 (g) of the U.P. Act
which is applicable to these petitions.
F
34. Having correctly interpreted the provisions of Section 6 N of the
U.P. Act, the High Court rightly drew an adverse presumption for non-
production of the Attendance Registers and the Muster Rolls for the years
1991 onwards. The best evidence having been withheld, the High Court was
entitled to draw such adverse inference. The views expressed by this Court
G on the question of burden of proof in Range Forest Officer's case (supra) were
watered down by the subsequent decision in R.M. Yellatty's case (supra) and
in our view the workmen had discharged their initial onus by production of
the documents in their possession.

35. On the question of judicial review, the submissions made by Mr.
H
..
SRI RAM INDUSTRIAL ENTERPRISES LTD. v. MAHAK SINGH [ALTAMAS KABIR, J.] 797

Viswanathan has force and we are inclined to accept the same. A
36. In view of what has been indicated hereinabove, we are satisfied
that no interference is called for with the judgment and directions given by
the High Court which had been impugned in these petitions and the special
leave petitions are accordingly dismissed. Interim order dated I6th August,
2005, stands vacated. B
37. There will be no order as to costs.

KKT. SLPs are dismissed.

'