THE CHIEF SOIL CONSERVATOR PUNJAB AND ORS.versusGURMAIL SINGH

                       [2009] 8 S. C.R. 564

                                                                 f
A    THE CHIEF SOIL CONSERVATOR PUNJAB AND ORS.
                                 v.
                         GURMAIL SINGH
                 (Civil Appeal No. 3473 of 2009)
                           MAY 8, 2009
B
          [DR. ARIJIT PASAYAT AND ASOK KUMAR
                       GANGULY, JJ.]

        Labour laws:
c
       Reinstatement of terminated workman - Onus to prove
  completion of 240 days in the 12 months preceding the date
  of termination - Held: Is on the workman - Labour Court and
  High Court erred in holding that the onus was on employer
  and in reinstating the workman with 50% of back wages for
D
  want of evidence - Courts below also did not discuss as to
  why employer be not treated as industry - Considering the
  passage of time, and peculiar facts of the case, employer is
  directed to pay Rs. 60, 000 to workmen in full and final
  settlement of his claim - Industrial Disputes Act, 1947.
E
        Rajasthan State Ganganagar S. Mills Ltd. v. State of
    Rajasthan and Anr. (2004) 8 sec 161 relied on.
                                                                 .
                        Case Law Reference:
F       (2004) s sec 161         relied on           Para 5
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3473 of 2009.

      From the Judgment & Order dated 02.05.2006 of the High
G Court of Punjab & Haryana at Chandigarh in CWP No. 639 of
  2005.                                                          • "'
        A.K. Mehta and Ajay Pal for the Appellant.

H                               564
            CHIEF SOIL CONSERVATOR PUNJAB AND ORS. v. 565
                          GURMAIL SINGH
       )

               Jitendra Sharma, B.K. Pal and P.N. Jha for the                  A
           Respondent.

                The Judgment of the Court was delivered by

                OR. ARIJIT PASAYAT, J. 1. Leave granted.
                                                                               B
                2. Challenge in this appeal is to the order passed by the
           Division Bench of the Punjab and Haryana High Court
           dismissing writ petition filed by the appellant under Article 226
           of the Constitution of India, 1950 (in short 'the Constitution').
           Prayer in the writ petition was to quash the award dated            c
           23.9.2004 under which the respondent no.1 was directed to be
           reinstated with continuity of service with 50% back wages
           within stipulated time. The award was made by the Presiding
           Officer, Patiala. The matter was before the Labour Court on the
           basis of a complaint made by respondent no.1.                       D
                 The brief facts of the case are that respondent no.1-
           workman was appointed as Buldozer Operator with the
           petitioner-management on 1.11.1990. Since his appointment
           was on 89 days basis, the same was extended from time to
           time till 5.7.1996. Thereafter, his services were not extended.     E
           The workman raised an industrial dispute on the ground that
            his services were terminated by the management on 15. 7.1996
           without any notice, charge sheet, enquiry or compensation and
--         that the juniors to him are still in service of the management
           and new persons were also appointed by the management after         F
           terminating his services. The government referred the dispute
           to the Labour Court for adjudication under Section 10(1)(c) of
           the Industrial Disputes Act, 1947 (in short the 'Act') and the
           Labour Court on 23.9.2004 made the award, which was
           challenged before the High Court.                                   G
     ...
               The stand of the petitioner-management is that respondent
           no.1-workman was engaged as Buldozer Operator on 89 days
           basis and in that stop-gap arrangement he had worked from
           1.11.1990 till 15. 7.1996 but intermittently. He was never
                                                                               H
    566     SUPREME COURT REPORTS                  [2009] 8 S.C.R.

A employed continuously, therefore, did not work for 240 days in
  the preceding 12 calendar months. Thus, denial of further
  extension of his service does not amount to retrenchment,
  therefore, has been wrongly awarded reinstatement with back
  wages. The Labour Court has not appreciated the fact that
B since the petitioner department is not an "Industry", the services
  of respondent no.1 were not governed by the afore-stated Act.

         The Labour Court held that Section 2(o) of the Act has no
    application to the facts of the case. In any event, the workman
    had completed 240 days of work in several years. The
C   appellants took the stand that respondent no.1 have not
    completed 240 days of work in any calendar year. He never
    worked continuously. The employer was not an industry. The
    Labour Court held that there was no compliance with
    requirement of Section 25F of the Act. The question whether
D   department is an industry has to be decide against the
    management for want of evidence. The onus was on the
    department to prove that the workman worked only 180 days
    and not completed 240 days in the preceding 12 calendar
    months from the date of alleged termination. Since no records
E   were produced by the department the claim has to be accepted.
    In the writ petition before the High Court it was categorically
    urged by the appellant that no appointment order was
    produced. In any event, the attendance sheet clearly shows that
    the claim of the workman was not acceptable. The High Court
F   held that no authenticity can be attached to the documents as
    the attendance for the month of July 1996 was not produced
    and the same was up to June 1996. It was also held that
    whether department is an industry is a question of fact which
    was not established.
G
       3. Learned counsel for the appellant submitted that the
  Labour Court and the High Court erroneously held that the onus
  was on the department. It was also submitted that the
  attendance sheets have been discarded without any reason.
H The plea ofthe department was that work upto particular date
       CHIEF SOIL CONSERVATOR PUNJAB AND ORS. v. 567
           GURMAlL SINGH [DR. ARIJIT PASAYAT, J.]

      in July. Even if the period is added to the period available for    A
      verification from the attendance sheet, it does not exceed 240
      days. It was also submitted that the engagement was made for
      specific purpose that too on 89 days basis. Therefore, Section
      2(o)(o) of the Act has clearly application.
                                                                          B
          4. Learned counsel for the respondent on the other hand
      supported the order of the Labour Court.

           5. As contended by learned counsel for the appellant, it
      was for the workman to establish that he was engaged for
      more than 240 days in the 12 months preceding the date of           c
      alleged termination. This position was highlighted in Rajasthan
      State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr.
      (2004 (8)   sec 151 ).
          6. Apart from that the record produced were upto June,
                                                                          D
      1996. What would have been the effect if the whole period of
      15 days upto 15th July, 1996 was added has not been
      considered. There is no discussion on the aspect as to why the
      appellant should not be treated as "industry". Neither the Labour
      Court nor the High Court has discussed this matter.
                                                                          E
            7. In the normal course, we would have remitted the matter
      to the Labour Court for consideration of the relevant aspects .
 ..   But considering the passage of time we do not consider it
      appropriate to do so. The order of stay was passed on
      7.8.2006. In the peculiar facts of the case we direct that the F
      respondent will be paid a sum of Rs.60,000/- in full a.nd final .
      settlement of his claim. We make it clear that we have not
      decided the issue as to whether the appellant is an industry.

             8. The appeal is disposed of accordingly.
                                                                          G
...   D.G.                                      Appeal disposed of.