Holding

The Supreme Court held that the claimant must prove the 240‑day service requirement, which he satisfied by his testimony and the certificate, and that the High Court should not disturb the labour court’s factual findings unless they are perverse, thereby restoring the reinstatement and back‑wage award.

Summary

The appellant, a daily‑wage worker appointed on 26‑Nov‑1988, was terminated on 20‑Jun‑1994 and claimed that he had worked continuously for more than 240 days in the preceding year, invoking section 25‑F of the Industrial Disputes Act, 1947. The labour court held him to be a workman, found that he had satisfied the 240‑day requirement based on his testimony and a certificate issued by the former Assistant Executive Engineer, and ordered reinstatement with 50% back wages. The Karnataka High Court division bench set aside that award, deeming the certificate fabricated and holding that the claimant had not discharged the burden of proof. The Supreme Court restored the labour court’s award, holding that the burden of proving 240 days lies on the workman and is discharged by his oral testimony and cogent documentary evidence, and that a High Court may not disturb concurrent factual findings of a labour court unless they are perverse.

Issues considered

The appellant’s status as a ‘workman’ under section 2(s) of the Industrial Disputes Act, 1947 and whether the Irrigation Department qualifies as an ‘industry’.
Whether the burden of proof to establish 240 days of continuous service rests on the claimant and whether the claimant discharged it by giving evidence and producing the certificate (Ex.WI).
Whether the High Court could interfere with the concurrent findings of fact recorded by the labour court and the single judge.
Whether non‑production of nominal muster rolls by the employer, without a specific plea of suppression, permits an adverse inference against the employer.
The admissibility and credibility of the certificate (Ex.WI) issued by the former Assistant Executive Engineer.

Legislation cited

Constitution of Indias. 226
Indian Evidence Act, 1872
Industrial Disputes Act, 1947s. 10, s. 258, s. 25-B, s. 25-F, s. 2(s)

Subjects

Industrial Disputes ActRetrenchmentDaily wage earnerBurden of proof240 days serviceNominal muster rollReinstatementBack wagesHigh Court interferenceWorkman definition

Judgment

A R.M. YELLATTI
V.

THE ASST. EXECUTIVE ENGINEER

NOVEMBER 7, 2005

B [S.N. VARIAVA, DR. AR. LAKSHMANAN AND S.H. KAPADIA, JJ.)

Labour and Services

Industrial Disputes Act, 1947-Sec.258, Sec.25F-Retrenchment-
c Workman-Daily wageworker removedfi·om employment-Reference by State
Government-Letter by employer filed in evidence-Management failing ·to
produce Nominal Muster Roll for entire period-Held, workman has proved
that he has worked continuously for 240 days and therefore entitled to
reinstatement with 50% backwages.
D Constitution of India-Ari. 226-Award by Industrial Tribunal after
appreciation of evidence-Held, High Court will not interfere with the
concurrent findings offact recorded by iabour court-Principles re-stated

Appellant was appointed as a daily wage earner by the Respondent
E on 26.11.1988 and worked up to 20.6.19'94, on which day his services were
terminated. On termination, appellant claimed that he had continuously
worked for more than 240 days immediately prior to 20.6.1994 and that
his services were wrongly terminated without complying with the
provisions of section 25-F of the lndust:rial Disputes Act, 1947. The above
industrial dispute was referred by the State Government to the labour
F court. The management resisted the reference and contended that the
appellant was not a worker in terms of section 2(s) of the 1947 Act and
consequently, he was not entitled to claim benefit of section 25-F of the
said Act; that the "Irrigation departm1:nt" was not an "industry" under
the said 1947 Act and consequently, the· question of compliance of section
G 25-F did not arise, and that the reference was time barred.

The labour court by its award held that the appellant was appointed
as daily waged earner and that he was a workman under section 2(s) of
the 1947 Act. The labour court found on facts and on the basis of evidence
led before it that the appellant had worked continuously for more than
H 1010
RM. YELLATfl l'. THE ASST. EXECUTIVE ENGINEER 1011
)
240 days prior to 20.6.1994 and, that the then Assistant Executive Engineer A
had issued a certificate (Ex. Wl) to this effect; that although the appellant
had been cross-examined on behalf of the management, there was no
materi.al to disbelieve the certificate. Further, the labour court came to
the conclusion that the management had suppressed the material evidence
from the Court.
B
The labour court directed the management to reinstate the appellant
as a daily wager with 50% back wages from the date of the award till the
date of reinstatement. The management challenged the award by a writ
petition which was dismissed in limine.

On writ appeal the Division Bench held that the certificate produced
c
by the appellant (Ex.WI) nowhere stated that the appellant was in
continuous service for 240 days; that there was no evidence on record to
show that the certificate was in fact issued by Asstt. Executive Engineer
and that the records produced by the department showed that Ex. Wl was
a fabricated document; that the appellant had failed to produce the letter D
of appointment, letter of termination or receipts indicating payment of
monthly salary; that except the self-serving statement of the appellant in
the witness box, there was nothing on record to support his case of having
worked for 240 days. The Division Bench quashed the award passed by
the labour court in favour of the appellant and also set aside the order of E
the Single Judge.

Before this Court the appellant contended that the division bench
ought not ti! have interfered with the concurrent findings given by the
award of the labour court and the judgment of the single judge; that there
was no perversity in the findings recorded by the labour court; that full F
opportunity was given to the management to produce its records; that the
management suppressed the Nominal Muster Rolls (NMRs) which
indicated that the appellant had worked for the entire period; that in any
event, the entire record was not produced before the labour court despite
the management being asked by the court to do so and, therefore, the G
labour court was right in coming to the conclusion that the management
had suppressed its records from the court; that the workman had stepped
into witness box and produced the certificate (Ex. Wl) and that both the
labour court and the single judge had accepted its correctness and,
therefore, the Division Bench ought not to have interfered with the said
findings; that the appellant had worked for 240 days within the meaning H
1012 SUPREME COURT REPORTS (2005) SUPP. 4 S.C.R.

A of section 25-F of 1947 Act and his non-employment con,stituted
retrenchment under section 2( oo) of the said Act; that the services of the
appellant was terminated in breach of section 25-F of the 1947 Act and,
therefore, the labour court was right in ordering reinstatement; that no
reasons have been given by the High Court for disbelieving Ex. WI and
for coming to the conclusion that Ex. WI was fabricated document; that
B the Division Bench of the High Court had erred in placing reliance on the
judgment of this court in the case of Range Forest Officer, as in the present
case, the appellant-workman had entered the witness box and had
produced cogent evidence in the form of certificate 'ix.WI.

C The Respondent-management contended that the burden of proof
was on the appellant to show that he had worked for 240 days in the
preceding 12 months prior to his alleged retrenchment; that the appellant-
workma n in the present case had neither produced the letter of
appointment nor letter of termination and, therefore, there was nothing
on record to support his case of having worked for 240 days within the
D meaning of "continuous service" as defined under section 25-B of the 1947
Act; that Ex. WI contained discrepancies and, therefore, the High Court
. _was right in holding that the said document was fabricated; that in any f

event F;x. WI does not indicate as to whether tlie workman had worked
for each and every aay Between 22.11.1988 and 20.6.1994 or whether he
E had worked for 240 days during the aforestated period and in the
circumstances, the labour court had erred in coming to the conclusion that
the appellant had worked for 240 days in the year preceding his
termination, and that the workman had failed to discharge the burden of
proving that he had worked for 240 days prior to the termination of his
service.
F
Allowing the Appeal, the Court
•
HELD: I. It is clear that the provisions of the Evidence Act in terms
do not apply to the proceedings under section 10 of the Industrial Disputes
G Act. 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 in the witness
box, and adducing cogent evidence, both oral and documentary. In cases
of termination of services of daily wage earner, there will be no letter of
appointment or termination. There will also be no receipt or proof of
H payment. Thus in most cases, the workman (claimant) can only.call upon

,<---
'
R.M. YELLATTI v. THE ASST EXECUTIVE ENGINEER JQJJ

the employer to produce before the court the nominal muster roll for the A
given period, the letter of appointment or termination, if any, the wage
register, the attendance register etc. Drawing of adverse inferenc.e
ultimately would depend thereafter on facts of each case. The decisions
of this Court however make it clear that mere affidavits or self-serving
statements made by the claimant/workman will not suffice in the matter B
of discharge of the burden placed by law on the workman to prove that
the had worked for 240 days in a given year. Mere non-production of
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. High Court under Article 226 of the
Constitution will not interfere with the concurrent findings of fact recorded C
by the labour court unless they are perverse. This exercise will depend
upon facts of each case. [1023-E-H; 1024-A-BJ
'.
Range Forest Officer v. S. T. Hadimani, [2002) 3 SCC 25; Rajasthan
State Ganganagar S.Mills Ltd. v. State of Rajasthan and Ors., (2004) 8 SCC
161; M.P. Electricity Boardv. Hariram, (200418 SCC 246; Manager, Reserve D
Bank of India, Bangalore v. S.Mani, (20051 5 SCC 100 and Municipal
Corporation, Faridabad v. Siri Niwas, (20041 8 SCC 195, referred to.

2. The workman herein had stepped in the witness box. He had called
upon the management to produce the nominal muster rolls for the period E
commencing from 22.11.1988 to 20.6.1994. This period is the period borne
out by the certificate (Ex. WI) issued by the former Asstt. Executive
Engineer; The evidence in rebuttal from the side of the management needs
to be noticed. The management produced five nominal muster rolls
(NMRs), out of which 3 NMRs, Ex.Ml, Ex.M2 and Ex.M3, did not even
relate to the concerned period. The relevant NMRs produced by the F
management were Ex.M4 and Ex.MS, which indicated that the workmen
had worked for 43 days during the period 21.1.1994 to 20.2.1994 and
21.3. I 994 to 20.4. I 994 respectively. There is no explanation from the side
of the management as to why for the remaining period the nominal muster
rolls were not produced. The labour eourt .has rightly held that there is G
nothing to disbelieve the certificate (Ex. WI). The High Court in its
impugned judgment has not given reasons for discarding the said
certificate. In the circumstances,. the Division Bench of the High Court
ought not to have interfered with the concurrent findings.of fact recorded
by the labour court and confirmed by the single judge, (1024-B-E)
H
1014 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A 3. This is not a case where the allegations of the workman are .
founded merely on an affidavit. He has produced cogent evidence in
support of his case. The workman was working in SD-I, Athani and Ex.WI
was issued by the former Asstt. Executive Engineer, Hipparagi Dam
Construction Division No.I, Athani. In the present case, the defence of the
B management was that although Ex. WI refers to the period 22.11.1988 to
20.6.1994, the workman had not worked as a daily wager on all days
during that period. If so, the management was duty bound to produce
before the labour court the nominal muster rolls for the relevant period,

C
particularly when it was summoned to do so. The workman had stepped
in the witness box and his case that he had worked for 240 days in a given
year was supported by the certificate (Ex.WI). In the circumstances, the
-
division bench of the High Court had erred in interfering with the
concurrent findings of fact. Daily wage earners are not regular employees.
(1024-F, H; 1025-A, Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5124 of 2004.
D
From the Judgment and Order dated 3.9.2002 of the Karnataka High
Court in W.A. No. 5660 of 2000 (L-TER).

Rajesh Mahale for the Appellant.

E Ms. Anitha Shenoy, Naveen R. Nath, Ms. Lalit Mohini Bhat and Ms.
Hetu Arora for the Respondent.

The Judgment of the Court was delivered by

KAPADIA, J. The appellant questions the correctness of the judgment
F of the High Court of judicature at Karnataka at Bangalore whereby the High
Court, in Appeal, allowed the writ petition filed by the Assistant Executive
Engineer (SD-I), Athani and set aside the order of the Labour Court dated
27. I 0.1999 directing reinstatement with 50% back wages from the date of the
award till the date of reinstatement.

G Facts necessary for the disposal of this appeal are as follows:

Appellant was appointed as a daily waged earner by the Assistant
Executive Engineer on 26.11.1988. He worked up to 20.6.1994, on which
day his services were terminated. He was getting salary of Rs. 910 per month.
On termination, appellant claimed that he had continuously worked for more
H than 240 days immediately prior to 20.6.1994 (date of termination) and that
R.M. YELLATTI v. THE ASST. EXECUTIVE ENGINEER [KAPADIA, J] ] 0 J5

'. )
his services were wrongly terminated without complying with the provisions A
of section 25-F of the Industrial Disputes Act, I 94 7 (hereinafter referred to
as "the 1947 Act"). Consequently, he contended that the above termination
constituted illegal retrenchment which was liable to be set aside. The above
industrial dispute was referred by the State Government to the labour court
vide reference under section IO(l)(c) of the 1947 Act. The reference was in B
following terms:

"Whether the management was justified in removing the claimant
from service w.e.f. 20.6.1994? Ifnot, to what reliefs the claimant was
entitled for?"

On receipt of the said reference, the labour court issued notices to the C
concerned parties. The management resisted the reference by filing its counter
statement by which the management contended that the appellant was not a
worker in terms of section 2(s) of the 1947 Act and consequently, he was not
entitled to claim benefit of section 25-F of the said Act. The management
also submitted that the "Irrigation department" was not an "industry" under D
the said I 94 7 Act and consequently, the question of compliance of section
25-F did not arise. Further, the appellant contended that the reference was
time barred.

By award dated 27.10.1999, the labour court held that the appellant
was appointed as daily waged earner and that he was a workman under · E
section 2(s) of the 1947 Act. The labour court found on facts and on the basis
of evidence led before it that the appellant had worked with SD- I at Athani
continuously for more than 240 days prior to 20.6.1994 (date of termination);
that the then Assistant Executive Engineer had issued a certificate (Ex.WI)
to the effect that the appellant had worked from 24.11.1988 to 20.6.1994; F
that although the appellant had been cross-examined on behalf of the
management, there was no material to disbelieve the certificate Ex.WI. The
labour court found that Ex.WI was duly proved. It contained the signature
of the then Asst!. Executive Engineer. Further, the labour court came to the
conclusion that the management had suppressed the material evidence from
the Court. We quote hereinbelow the findings given by the labour court in G
this connection:

"...... At the outset I have to state that the respondent has not placed
all the material records before the Court and on the other hand, the
respondent has followed the method of pick and choose and produced
some records before the Court for some period and they are marked H
1016 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A as Exh. M.1 to M.15. As per the evidence of MW.I who has no
( -
personal knowledge of claimant has spoken on the basis of records.
As per the respondent the claimant has not at all worked with the
respondent at any point of time namely with H.B.C. Athani, Belgaum
District. However, when the respondent was called upon to produce
the N.M.R. extracts for relevant period, it has chosen to produce Ex.
B M.1 to M.5 and consolidated statement showing the period for which
the claimant had worked as on 20.6.1994. As per the documentary
evidence adduced on behalf of the respondent and the oral version of I
MW.I, the claimant had worked only for a period of 84 days during
the year 1993 and for a period of 43 days during the year 1994 up
c to 20.6.1994. The respondent has not chosen to produce the N.M.R.
extracts for a period of 12 months immediately prior to 20.6.1994.
Whether the name of the claimant is found in such NMR extracts
during the said 12 calendar months prior to 20.6.1994 or not is
immaterial for respondent, it is for the Court to arrive at conclusion
or production ofN.M.R. records pertaining to the period of 12 calendar
D months immediately prior to 20.6.1994. There is no explanation offered
on behalf of the respondent for non-production of the said N.M.R. It
is the evidence of MW. I, the concerned NMR for the said period are
available. in my opinion MW. I has suppressed the material evidence
before the Court. On perusing the oral evidence of MW. I it reveals
E that in order to suppress the real material, it has not chosen to produce
concerned N.M.R ..... "

On the question as to whether the Irrigation department is an industry
under the 194 7 Act, the labour court followed the decision of the Karnataka
High Court holding that the Irrigation department of the Government
F constituted an industry within the meaning of section 2U) of the 1947 Act.
On the point of limitation, the labour court held that the Limitation Act, I 963
was not applicable to the proceedings under section I 0 of the 194 7 Act.
However, since there was a delay of three years in raising the industrial
dispute and since the appellant was only a daily waged earner, the labour
G court directed the management to reinstate the appellant into service as a
daily wager with 50% back wages from the date of the award till the date of
reinstatement.

Aggrieved by the said award, the management challenged the award
vide writ petition no.17636 of 2000. The said writ petition was dismissed in
H /imine vide order dated 7.6.2000.
RM YELLATTI v. THE ASST. EXECUTIVE ENGINEER [KAPADIA. J] JQJ 7
)
Aggrieved by the decision of the learned Single Judge dated 7.6.2000, A
the management carried the matter in appeal to the division bench vide writ
appeal no.5660 of 2000. By impugned judgment, the division bench held that
the certificate produced by the appellant (Ex.WI) nowhere stated. that the
appellant was in continuous service for 240 days; that there was no evidence
on record to show that the certificate was in fact issued by Asstt. Executive B
Engineer and that the records produced by the department showed that Ex.WI
was a fabricated document. The division bench further observed that the
appellant herein had failed to produce the letter of appointment, letter of
termination or receipts indicating payment of monthly salary. The division
bench observed that except the self-serving statement of the appellant in the
witness box, there was nothing on record to support his case of having C
worked for 240 days. Following the judgment of this court in the case of
Range Forest Officer v. S. T. Hadimani reported in [2002] 3 SCC 25, the
division bench vide its impugned judgment quashed the award passed by the
labour court in favour of the appellant. By the imp11gned judgment, the
division bench also set aside the order of the learned Single Judge. Hence,
this civi[ appeal. D
Shri Mahale, learned advocate for the appellant submitted that the
division bench ought not to have interfereawith the concurrent findings
given by the award of the labour court dated 27 .10.1999 and by the judgment
of the learned single judge dated 7.6.2000. He submitted that there was no E
perversity in the findings recorded by the labour court. He submitted that full
opportunity was given to the management to produce its records. He submitted
that the management suppressed the Nominal Muster Rolls (NMRs) which
indicated that the appellant had worked for the entire period between
22.11.1988 to 20.6.1994. It was submitted that in any event, the entire record
was not produced before the labour court despite the management being F
asked by the court to do so and, therefore, the Jabour court was right in
coming to the conclusion that the management had suppressed its records
from the court. In the circumstances, it was urged that the division bench
ought not to have interfered with the concurrent findings of fact recorded by
the labour court in its award dated 27.10.1999. Learned advocate further G
contended that the workman had stepped into witness box; that he had.tendered
and produced the certificate (Ex. WI) and that both the labour court and the
learned single judge had accepted its correctness and, therefore, the division
bench ought not to have interfered with the said findings. Learned advocate
further contended that the appellant had worked for 240 days within the
meaning of section 25-F of 1947 Act and his non-employment constituted H
1018 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
/
~.
A retrenchment under section 2(oo) of the said Act. He contended that the
services of the appellant was terminated in breach of section 25-F of 1947
Act and, therefore, the labour court was right in ordering reinstatement.
Learned advocate further submitted that no reasons have been given by the
High Court for disbelieving Ex.WI and for coming to the conclusion that
Ex.WI was fabricated document. Learned advocate further contended that
B the division bench of the High Court had erred in placing reliance on the
judgment of this court in the case of Range Forest Officer (supra), as in the
present case, the appellant-workman had entered the witness box and had I

produced cogent evidence in the form of certificate Ex.WI which shows that
the appellant had worked between 22.11.1988 to 20.6.1994 as a daily wager.
c Hence, the learned advocate submitted that the division bench had erred in
interfering with the concurrent findings of fact.

Ms. Anitha Shenoy, learned advocate for the management, on the other
hand, urged that the "Irrigation department" was not an "industry" as defined
under section 2G) of the 1947 Act. She contended that the judgment of this
D court in the case of Bangalore Water Supply and Sewerage Board v. A.
Rajappa, reported in [ 1978] 2 SCC 213 has been referred to the larger bench
by a referral order dated 5.5.2005 in the case of State of U.P. v. Jai Bir
Singh reported in [2005] 5 SCC I and consequently, she requested this court
to adjourn the matter sine die.
E On the merits of the matter, learned advocate submitted that the burden
of proof was on the appellant to show that he had worked for 240 days in
the preceding 12 months prior to his alleged retrenchment; that the appellant-
workman in the present case had neither produced the letter of appointment
nor letter of termination and, therefore, there was nothing on record to support
F his case of having worked for 240 days within the meaning of "continuous
service" as .defined under section 25-B of the 194 7 Act. Learned advocate
further contended that Ex.WI contained discrepancies and, therefore, the
High Court was right in holding that the said document was fabricated. Learned
advocate further contended that in any event Ex.WI does not indicate as to
whether the workman had worked for each and every day between 22.11.1988
G and 20.6.1994 or whether he had worked for 240 days during the aforestated
period and in the circumstances, the labour court had erred in coming to the
conclusion that the appellant had worked for 240 days in the year preceding
his termination. Therefore, according to the learned advocate, the workman
had failed to discharge the burden of proving that he had worked for 240 ·r
days prior to the termination of his service. In this connection, reliance was
H
R.M. YELLATII 1·. THE ASST. EXECUTIVE ENGINEER [KAPADIA, J] ] Q] 9
)
placed on the judgments of this court in the case of Range Forest Officer A
(supra); Rajasthan State Ganganagar S. Mills Ltd v. State of Ra;asthan and
Ors., reported in (2004] 8 SCC 161. MP. Electricity Board v. Hariram
reported in (2004] 8 sec 246.

At the outset, we may mention that we are not inclined to adjourn the
matter sine die pending the decision of the larger bench as urged on behalf B
of the management, particularly in view of the fact that there is nothing on
record to indicate that the management had argued the point in question. As
stated above, the labour court had ruled that the "Irrigation department" was
an "industry" in terms of section 20) of the 1947 Act. Against the award of
the labour court, the department had filed its writ petition in which the ground
was taken as a plea to the effect that the Irrigation department was not an
industry in terms of section 20) of the said Act. However, there is nothing
in the decision of the learned single judge as well as in the impugned judgment
to show as to whether the management had argued on this aspect of the case
and, therefore, we are not inclined to await the decision of the larger bench
following referral order in the case of Jai Bir Singh (supra). Even in the
counter affidavit filed before this court, no such plea has been taken.

Now coming to the question of burden of proof as to the completion
of 240 days of continuous work in a year, the law is well settled. In the case
of Manager, Reserve Bank of India, Bangalore v. S. Mani, reported in [2005]
5 SCC 100, the workmen raised a contention of rendering continuous service
between April, 1980 to December, 1982 in their pleadings and in their
representations. They merely contended in their affidavits that they had worked
for 240 days. The tribunal based its decision on the management not producing
attendance register. In view of the affidavits filed by the workmen, the tribunal
held that the burden on the workmen to prove 240 days service stood
discharged. In that matter, a three-judge bench of this court held that pleadings
did not constitute a substitute for proof and that the affidavits contained self-
serving statements; that no workman took an oath to state that they had
worked for 240 days; that no document in support of the said plea was ever
produced and, therefore, this court took the view that the workmen had failed
to discharge the burden on them of proving that they had worked for 240
days. According to the said judgment, only by reason of non-response to the
complaints filed by the workmen, it cannot be said that the workmen had
proved that they had worked for 240 days. In that case, the workmen had not
called upon the management to produce relevant documents. The court
observed that the initial burden of establishing the factum of continuous work
1020 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A for 240 days in a year was on the workmen. In the circumstances, this court
set aside the award of the industrial tribunal ordering reinstatement.

In the case of Municipal Corporation. Faridabad v. Siri Niwas reported
in (2004] 8 sec 195, the employee had worked from 5.8.1994 to 31.12.1994
as a tube-well operator. He alleged that he had further worked from 1.1.1995
B to 16.5.1995. His services were terminated on 17.5.1995 whereupon an
industrial dispute was raised. The case of the employee before the tribunal
was that he had completed working for 240 days in a year; the purported
order of retrenchment was illegal as the conditions precedent to section 25-
F of Industrial Dispute Act were not complied with. On the other hand, the
C management contended that the employee had worked for 136 days during
the preceding 12 months on daily wages. Upon considering all the material
placed on record by the parties to the dispute, the tribunal came to the
conclusion that the total number of working days put in by the employee ~-

were 184 days and thus he, having not completed 240 days of working in a
year, was not entitled to any relief. The tribunal noticed that neither the
D management nor the workman cared to produce the muster roll w.e.f. August,
1994; that the employee did not summon muster roll although the management
had failed to produce them. Aggrieved by the decision of the tribunal, the
employee filed a writ petition before the High Court which took the view that
since the management did not produce the relevant documents before the
E industrial tribunal, an adverse inference should be drawn against it as it was
in possession of best evidence and thus, it was not necessary for the employee
to call upon the management to do so. The High Court observed that the
burden of proof may not be on the management but in case of non-production
of documents, an adverse inference could be drawn against the management:
Only on that basis, the writ petition was allowed holding that the employee
F had worked for 240 days. Overruling the decision of the High Court, this
court found on facts of that case that the employee had not adduced any
evidence before the court in support of his contention of having complied
with the requirement of section 25-B of Industrial Dispute Act; that apart
from examining himself in support of his contention, the employee did not
G produce or call for any document from the office of the management including
the muster roll (MR) and that apart from muster rolls, the employee did not
produce offer of appointment or evidence concerning remuneration received
by him for working during the aforementioned period. It is in this light that
this court, speaking through Hon'ble Sinha, J., has held as follows:

H "15. A court of law even in a case where provisions of the Evidence
R.M. YELLATTI 1·. THE ASST. EXECUTIVE ENGINEER [KAPADIA, J.] ) 021

Act apply, may presume or may not presume that if a party despite A
possession of the best evidence had not produced the same, it would
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 required to be
taken into consideration is the background of facts involved in the /is. B
The presumption, thus, is not obligatory because notwithstanding the
intentional non-production, other circumstances may exist upon which
such intentional 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 C
its jurisdiction to do so particularly having regard to the nature of the
evidence adduced by the respondent.

16. No reason has been assigned by the High Court as to why the
exercise of discretional jurisdiction of the Tribunal was bad in law.
In a case of this nature, it is trite, the High Court exercising the power D
of judicial review, would not interfere with the discretion of a Tribunal
unless the same is found to be illegal or irrational."

In the case of Range Forest Officer (supra), the dispute was referred to
the labour court as to whether the workman had completed 240 days of
service. Vide award dated I0.8.1988, the tribunal held that the services were E
wrongly terminated without giving retrenchment compensation. In arriving at
this conclusion, the tribunal stated that in view of the affidavit of the workman
saying that he had worked for 240 days, the burden was on the management
to show justification in termination of the service. It is in this light that the
division bench of this court took the view that the tribunal was not right in F
placing the burden on the management without first determining on the basis
of cogent evidence that the workman had worked for 240 days in the year
preceding his termination. This court held that it was for the claimant to lead
evidence to show that he had worked for 240 days in the year preceding his
termination; that filing of an affidavit is only his own statement in his own
favour which cannot be recorded as sufficient evidence for any court or G
tribunal to come to the conclusion that a workmen had worked for 240 days
in a year. This court found that there was no proof of receipt of salary or
wages for 240 days; that letter of appointment was not produced; that letter
of termination was not produced on record and, therefore, award was set
aside.
H
1022 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
~
A In the case of Rajasthan State Ganganagar S. Mills ltd, (supra), the
w~rkman had alleged that he had worked for more than 240 days in the year
concerned, which claim was denied by the management. The workman had
merely filed an affidavit in support of his case. Therefore, the division bench
of this court took the view that it was for the claimant to lead evidence to
show that he had worked for 240 days in the year preceding his termination.
B This court observed that filing of an affidavit was not enough because the
affidavit contained self-serving statement of the workman which cannot be
regarded as sufficient evidence for any court or tribunal to come to the
conclusion that the claimant had worked for 240 days in a year. Further, this
{;OUrt found that there was no proof of receipt of salary or wages for 240 days
c and, .therefore, 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 claimed. On the facts of that case, the court found that even
if the period for which the workman had alleged to have worked was taken
into account, as mentioned in his affidavit, still the said workman did not
'·
fulfill the requirement of completion of 240 days of service and, therefore,
D this court set aside the award of the labour court.

In the case of MP. Electricity Board (supra), the workmen were engaged ·•
by the board on daily wages for digging pits to erect electric polls. It was the
case of the board that on completion of the project, the employment was
terminated and whenever a similar occasion arose for digging pits, the
E
workmen were re-employed on daily wages and, therefore, their employment
was not permanent in nature nor had the workmen completed 240 days of
continuous work in. a given year. The project jobs came to an end in 1991
," and the workmen were never re-employed by the board. Being aggrieved by
t4e said non-employment, the workmen filed applications under MP Industrial
F Relations Act seeking permanent employment, primarily on the ground that
they have completed 240 days in a year and their discontinuation of service
amounted to retrenchment without following the legal requirements. The board '
denied the allegations made in the application before the labour court. An
applic;ation was moved before the labour court by the workmen seeking
direction to the board to produce the muster roll for the concerned period.
G However, no other material was produced by the workmen to establish the
fact that they had worked for 240 days continuously in a giveq year. Some
of the workmen were also examined before the labour court. However, no
document was produced in the form of letter of appointment, receipt indicating

H
payment of salary etc. After examining the entry in the muster rolls, the
labour court came to the conclusion that the workmen had not worked for
•
R.M YELLATII v. THE ASSf. EXECUTIVE ENGINEER [KAPADIA, J.] J023

240 days continuously in a given year, hence, they could not claim permanency A
nor could they term their non-employment as retrenchment. Aggrieved by the
award of the labour court, the workmen preferred an appeal before the
industrial court at Bhopal which took the view that since the board has failed
· to produce the entire muster roll for the year ending 1990, an adverse inference
was required to be drawn against the board and solely based on the said B
inference, the industrial court accepted the case of the workmen that they had
worked for 240 days continuously in a given year. Accordingly, the industrial
.. court granted reinstatement to the workmen with 50% back wages. Drawing
of such an adverse inference was challenged before this Court by the MP
Electricity Board. In the light of the aforestated facts, this court opined that
the industrial court or the High Court could not have drawn an adverse C
inference for non-production of the muster rolls for the years 1990 to 1992,
particularly in the absence of a specific plea by the claimants that they had
worked during the period for which muster rolls were not produced. This
court observed that initial burden of establishing the factum of their continuous
work for 240 days in a year was on the workmen and since that burden was D
not discharged, the industrial court and the High Court had erred in ordering
reinstatement solely on an adverse inference drawn erroneously.

Analyzing 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 E
on reading the aforestated judgments, we find 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 in the witness box. This burden is discharged
upon the workman adducing cogent evidence, both oral and documentary. In p
cases of 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 given
period, the letter of appointment or termination, if any, the wage register, the G
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 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 H
1024 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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 the concurrent findings of fact recorded by the labour court
B unless they arc perverse. This exercise will depend upon facts of each case.

Now applying the above decision to the facts of the present case, we
find that the workman herein had stepped in the witness box. He had called
upon the management to produce the nominal muster rolls for the period
commencing from 22.l 1.1988 to 20.6.1994. This period is the period borne
C out by the certificate (Ex.WI) issued by the former Asst!. Executive Engineer.
The evidence in rebuttal from the side of the management needs to be noticed.
The management produced five nominal muster rolls (NMRs), out of which
3 NMRs, Ex.Ml, Ex.M2 and Ex.M3, did not even relate to the concerned
period. The relevant NMRs produced by the management were Ex.M4 and
D Ex.M5, which indicated that the workmen had worked for 43 days during the
period 21.1.1994 to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively. There
is no explanation from the side of the management as to why for the remaining
period the nominal muster rolls were not produced. The labour court has
rightly held that there is nothing to disbelieve the certificate (Ex.WI). The
High Court in its impugned judgment has not given reasons for discarding
E the said certificate. In the circumstances, we are of the view that the division
bench of the High Court ought not to have interfered with the concurrent
findings of fact recorded by the labour court and confirmed by the learned
single judge vide order dated 7.6.2000 in writ petition no. p636 of 2000.
This is not, therefore, a case where the allegations of the workman are founded
F merely on an affidavit. He has produced cogent evidence in support of his
case. The workman was working in SD-I, Athani and Ex.WI was issued by
the former Asst!. Executive Engineer, Hipparagi Dam Construction Division
No. I, Athani-591304. In the present case, the defence of the management
was that although Ex. WI refers to the period 22.11.1988 to 20.6.1994, the
G workman had not worked as a daily wager on all days during that period. If
so, the management was duty bound to produce before the labour court the
nominal muster rolls for the relevant period, particularly when it was
summoned to do so. We are not placing this judgment on the shifting of the
burden. We are not placing this case on drawing of adverse inference. In the
present case, we are of the view that the workman had stepped in the witness
H box and his case that he had worked for 240 days in a given year was
R.M. YELLATTI v. THE ASST. EXECUTIVE ENGINEER [KAPADIA, J.] ] 025

supported by the certificate (Ex. Wl ). In the circumstances, the division bench A
of the High Court had erred in interfering with the concurrent findings of
fact.

Before concluding, we would like to make an observation with regard
to cases concerning retrenchment/termination of services of daily waged
earners, particularly those who are appointed to work in Government B
departments. Daily waged earners are not regular employees. They are not
given letters of appointments. They are not given letters of termination. They
are not given any written document which they could produce as proof of
receipt of wages. Their muster rolls are maintained in loose sheets. Even in
cases, where registers are maintained by the Government departments, the C
officers/clerks making entries do not put their signatures. Even where
signatures of clerks appear, the entries are not countersigned or certified by
the appointing authorities. In such cases, we are of the view that the State
Governments should take steps to maintain proper records of the services
rendered by the daily wagers; that these records should be signed by the
competent designated officers and that at the time of termination, the concerned D
designated officers should give certificates of the number of days which the
• labourer/daily wager has worked. This system will obviate litigations and
pecuniary liability for the Government.

Accordingly, we find merit in this appeal. We set aside the impugned
judgment of the division bench dated 3.9.2000 and we restore the award of E
the labour court dated 27.10.1999 in l.D. Reference No.59/97. The name of
the appellant will be restored as a daily wager in the nominal muster roll.

Accordingly, the appeal is allowed with no order as to costs.

V.M. Appeal allowed