CW/4625/2003 of PRADEEP KUMAR Vs LABOUR COURT and ANR on 22 December 2006

O R D E R

(1) S.B. CIVIL WRIT PETITION NO.4625/2003(Pradeep Kumar Vs. Labour Court & Anr.)(Pradeep Kumar Vs. Labour Court & Anr.)

(2) S.B. CIVIL WRIT PETITION NO.4626/2003(Smt. Asha Vs. Labour Court & Anr.)(Smt. Asha Vs. Labour Court & Anr.)

(3) S.B. CIVIL WRIT PETITION NO.4627/2003(Smt. Sugani Vs. Labour Court & Anr.)(Smt. Sugani Vs. Labour Court & Anr.)

(4) S.B. CIVIL WRIT PETITION NO.4628/2003(Smt. Tara Devi Vs. Labour Court & Anr.)(Smt. Tara Devi Vs. Labour Court & Anr.)

(5) S.B. CIVIL WRIT PETITION NO.4629/2003(Smt. Santosh Vs. Labour Court & Anr.)(Smt. Santosh Vs. Labour Court & Anr.)

(6) S.B. CIVIL WRIT PETITION NO.4630/2003(Smt. Rekha Vs. Labour Court & Anr.)(Smt. Rekha Vs. Labour Court & Anr.)

(7) S.B. CIVIL WRIT PETITION NO.4631/2003(Smt. Lali Vs. Labour Court & Anr.)(Smt. Lali Vs. Labour Court & Anr.)

WRIT PETITIONS UNDER ARTICLE 226AND 227 OF THE CONSTITUTION OFINDIA.

DATE OF ORDER

:: 22[nd] December, 2006

PRESENT

HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ

Mr.Vijay Mehta, Advocate for the petitioners.Mr.Rameshwar Dave, Dy. Govt. Advocate for the State.

BY THE COURT

In all the aforesaid writ petitions, challenge has beenmade to the award passed by the learned Labour Court, Jodhurpassed on 03[rd] July, 2003. The appropriate government inthese cases made reference to the learned labour court bynotifications of various dates on the industrial dispute whetherremoval of the respondents-workmen was proper and valid andif not what relief they were entitled to.

In the terms of reference, date of such removal of the petitioner Pradeep was indicated as 01[st] August, 1998, Smt.Asha dated 02[nd] July, 1998, Smt. Sugani dated 01[st] July, 1998,Smt. Tara Devi dated 01[st] July, 1998, Smt. Santosh dated 02[nd]July, 1998, Smt. Rekha dated 02[nd] July, 1998 and Smt. Lalidated 02[nd] July, 1998.

In writ petition No.4625/2003, the date of removal of thepetitioner Pradeep Kumar in terms of reference was indicatedas 01[st] August, 1998. He set up a claim before the learnedlabour court that he was engaged as Sweeper by the respondents on 01[st] April, 1997 and worked with themcontinuously up to 31[st] July, 1998. According to him, therespondents did not make compliance of Section 25-F of theIndustrial Disputes Act, 1947 (for short 'the Act') whileterminating his services. He worked with the respondentsthough on monthly contract basis which was extended up toJuly, 1998.

In writ petition No.4626/2003, the date of removal of thepetitioner Smt. Asha in terms of reference was indicated as02[nd] July, 1998. She set up a claim before the learned labourcourt that she was engaged as Sweeper by the respondents on04[th] April, 1997 and worked with them continuously up to 02[nd]July, 1998. Her services were terminated on 03[th] July, 1998but without complying with Section 25-F of the Act.

In writ petition No.4627/2003, the date of removal ofpetitioner – Smt. Sugani in the terms of reference wasindicated as 01[st] July, 1998. She set up a claim before thelearned labour court that she was engaged as Sweeper by therespondents on 01[st] June, 1997 and worked with them continuously up to 30[th] June, 1998. Her services wereterminated without complying with Section 25-F of the Act.

In writ petition No.4628/2003, the date of removal of thepetitioner – Sm.t Tara in terms of reference was indicated as14t April, 1998. She set up a claim before the learned labourcourt that she was engaged as Sweeper by the respondents on01[st] June, 1997 and worked with them continuously up to 30[th]June, 1998. Her services were terminated on 01[st] July, 1998without making compliance of Section 25 F of the Act.

In writ petition No.4629/2003, the date of removal of the

Arguments

petitioner – Smt. Santosh in the terms of reference wasindicated as 03[rd] July, 1998. She set up a claim before thelearned labour court that she was engaged as Sweeper by therespondents on 04[th] April, 1997 and worked with themcontinuously up to 02[nd] July, 1998. Her services wereterminated on 03[th] July, 1998 without complying with Section25-F of the Act.

In writ petition No.4630/2003, the date of removal of thepetitioner – Smt. Rekha in the terms of reference was indicatedas 03[rd] July, 1998. She set up a claim before the learned labourcourt that she was engaged as Sweeper by the respondents on04[th] April, 1997 and worked with them continuously up to 02[nd]July, 1998. Her services were terminated on 03[th] July, 1998without complying with Section 25-F of the Act.

In writ petition No.4631/2003, the date of removal of the petitioner – Smt. Lali in terms of reference was indicated as03[rd] July, 1998. She set up a claim before the learned labourcourt that she was engaged as Sweeper by the respondents on04[th] April, 1997 and worked with them continuously up to 02[nd]July, 1998. Her services were terminated on 03[th] July, 1998without complying with Section 25-F of the Act.

Learned counsel for the petitioners in assailing the validity of the award passed by the learned labour court hasargued that the learned labour court has committed error inholding that the appointments of the petitioners were made for fixed terms and which having expired, they would not beentitled to any relief. According to him, heavy burden lay uponthe respondents to prove that the appointments were made oncontract basis and for a fixed term. The respondents neitherproduced the copy of the contract nor did they produced anyorder of renewal of the contract. They could not also prove thefact as to what was the fixed term up to which theappointments were made. The learned labour court furthercommitted an error apparent on the face of record by notdrawing an adverse inference against the respondents for notproducing contract on fixed term employment which has to beproved to exist in writing. The learned labour court failed toappreciate that contract appointments can be made only for aspecific work under a project whereas the work for which thepetitioners were engaged was of regular nature as thesanitation of the city was a permanent necessity. Provision ofSection 2 (oo)(bb) of the Industrial Disputes Act would not beattracted in such a case. The learned labour court failed toappropriate that the respondents failed to comply with Section25-F of the Industrial Disputes Act at the time of retrenchment

of the petitioners. They did not prepare any seniority list of thesweepers while terminating the services of the petitionersthereby violating Section 25-G of the Act and Rule 77 of theIndustrial Disputes (Central) Rules. It has been argued thatnotification inviting application for appointment on contractbasis did not describe any period of contract. It merely refersto sanitation work. When the working of the petitioners formore than 240 days was established by evidence and therespondents have not produced any evidence in rebuttal, thelearned labour court committed an error of law in holding thatthe petitioners did not complete 240 days. It was for therespondent No.2 to produce and prove the attendance registerand payment of receipts. Adverse reference ought to havebeen therefore drawn against the respondent No.2 for non-producing the original documents. It was argued that thepetitioners never submitted an application for appointment withthe respondents for consideration of his name by draw oflottery. The learned labour court therefore committed an errorof law apparent on the face of record to hold that thepetitioners having submitted the application in response to the advertisement for appointment afresh, he cannot be permittedto raise the grievance with regard to non-compliance of Section25-F and 25-H of the Industrial Disputes Act.

Learned counsel for the petitioners relied upon theDivision Bench judgment of this Court in Pramod Chand vs.State of Rajasthan & Ors., reported in 1997 WLR (Raj.) 351wherein it was held that it was the duty of the employer tooffer the job by sending registered letter to the employee tojoin the post. That having not been done, there was violationof Section 25-H. Learned counsel for the petitioners also reliedupon the judgment of Co-ordinate Bench of this Court inManager, Bijainagar Kriya Vikriya Sahkari Samiti Ltd. vs. Judge,Labour Court, Ajmer & Anr. reported in 1998 LAB.I.C. 3138wherein it was held that the plea that employment wascontractual appointee was required to be proved by employer.Learned counsel also referred the judgment of Hon'bleSupreme Court in S.M. Nilajkar & Ors. vs. Telecom DistrictManager, Karnataka reported in 2003 LAB.I.C. 2273 wherein itwas held that failure of the employer to prove that the termination of the employment fell within Sub-clause (bb)(oo)of Section 2 of the Act amounts to retrenchment. He also reliedupon a decision of Single Judge of this Court in S.B. Civil WritPetition No.561/1989 decided on 04[th] May, 1992 wherein it washeld that if the appointments were made on contract basis anda contract was not renewed in writing yet, appointees wereallowed to continue, such appointments would becomeappointments for a independent term. It was therefore arguedthat the writ petitions be allowed.

On the other hand Mr.Rameshwar Dave, learned Dy.Govt. Advocate argued that award passed by the learnedlabour court is legal and justified and does not call for anyinterference. He argued that there has been a shift in theapproach of law on the question of burden of proof even sincethe judgments referred to by the learned counsel for thepetitioners were delivered. He argued that the appointment ofthe petitioner were made only on month to month contractbasis. There was no requirement of producing the documentsof contract. Acceptance of the appointment on such condition

should clearly prove that petitioners were having clearknowledge and understanding that their appointments weremade on contract basis which was extendable on month tomonth basis. Learned counsel has referred to the cross-examination of the workman Pradeep Kumar in which he hasstated that appointments were made on contract basis, whichcontract used to be extended from time to time. Similarstatements were also made by other workman. It wassubmitted that when the appointments of the petitioners weremade on contract basis this category of appointment would beextended being covered by Clause (bb) of Section 2(oo) of theAct. He has further argued that when the respondents videadvertisement dated 31[st] October, 1997 invited applications forappointment on the post of Sweeper on contract basis,respondents submitted their applications and as per theinstructions of the Government names for appointments werefinalized by draw of lottery. This fact has been acknowledgedby all the petitioners that they applied in response to thelottery, but their names were not finalized. He therefore arguedthat the writ petitions be dismissed.

In pleadings of the writ petitions, the petitioners seek to prove in all these cases is that their retrenchment was notmade though they completed 240 days in the calender yearimmediately preceding the date of their retrenchment. In thecase of the petitioner Smt. Sugani however, the date ofappointment is much earlier than the date of terminationindicated in terms of reference. According to her case, she wasremoved from services on 31[st] June, 1996. In other casesalthough the date of termination given in the statement ofclaim corresponds to such date given in the terms of reference.The workman in their cross-examination before the learnedlabour court admitted that their appointments were made oncontract basis. They have also admitted that theirappointments were made under the approval of theCommissioner and Chairman of the Municipal Council, Pali.They have further admitted that the appointments were madeon contract basis, term of which used to extend from time totime.

In other cases also the learned labour court has notedthe stand of the management that appointments of workmen intheir services were made on contract basis and when sanctionfor temporary recruitment on the post of 125 Sweeper wasreceived from the Government, list of all 127 former employeeswho earlier worked on daily wages basis or contract basis wasprepared and the decision to make appointments was taken bydraw of lottery on 04[th] August, 198 in which such ex employeeswere reemployed. The learned labour court has noted thecontention of the workman Smt. Sugani in the award whereinalthough the workman Sugani in her statement of claimmaintained that she worked only from 15[th] April, 194 to 30[th]June, 1994 but the respondents in their reply thereto assertedthat she worked from June, 1997 on contract basis which wasextended on month to month basis up to June, 1998. Whenthe respondents invited their applications on 31[st] July, 1997Smt. Sugani failed to apply in response thereto. Similar versionhas been made in the case of Tara wherein she has beenshown to have worked from April, 1997 to August, 1998 onmonthly contract basis. Same is the position with regard to

other three cases namely Santosh, Rekha and Smt. Laliwherein also the same version has been made with regard toappointment of the petitioners being on contract basis. While inall other cases it has been found by the learned labour courtthat when applications for appointments were invited byadvertisement dated 31[st] July, 1997. The petitioners exceptSugani applied and were not selected. Total working period ofthe petitioners has remained confined anywhere between oneyear to two year. They have not proved that theirappointments were made by any acceptable mode ofrecruitment. They were therefore required to prove with regardto the violation of Section 25-F, G and H of the IndustrialDisputes Act. Basic fact which the respondents were requiredto prove was that they had completed 240 days in the calenderyear immediately preceding the date of their allegedretrenchment. When the respondents had all along beenasserting that their appointments were made on contract basisand particularly when the petitioner Pramod Kumar in hiscross-examination admitted such appointments being oncontract basis, the burden of proof lay on the workmen to show that their appointments were made otherwise than on contract basis and they completed 240 days in the calenderyear immediately preceding respective dates of theirtermination.

Arguments with regard to violation of Section 25-H lostall its strength when the workmen themselves applied forappointments in response to advertisement dated 31[st] July,1997. If in the draw of lottery their names did not come thatwould not detract from the issue that they did apply. It wasonly Sugani who did not apply but in her case too it is found bylearned labour court that while in terms of the reference herdate of termination was indicated as 01[st] July, 1998 but in herstatement of claim she claimed such date of termination 01[st]July, 1996. She failed to explain in her cross-examination thatfor how many days she worked while in the statement of claimstated that she was initially engaged from 15[th] April, 1994, inher statement before the court she stated as her initialengagement was made in July, 1997. She had also stated inher application for lottery. In this circumstances learned labour court find violation of law in her case too.

Their Lordship of Hon'ble Supreme Court in the case of Municipal Council Sujanpur vs. Surinder Kumar reported in2006 (5) SCC 173 held that burden to prove completion of 240days for the purpose of Section 25-F lies on the workman.

On consideration of the entire conspectus of the case it is found that the petitioners in these cases were engaged onmonthly contract basis which was extended from time to timeand when the respondents issued advertisement dated 31[st]July, 1997 inviting applications for appointments, suchappointments were to be made on the basis of draw of lottery.Other candidates excepts Sugani had applied but they were notselected while others were selected. Draw of lottery was madeonly amongst those who were earlier engaged with therespondents as Sweepers. In the facts of the case therefore itcannot be said that the petitioners have been able to proveviolation of either 25-F or 25-H of the Act.

AKC

In the result, I do not find any merit in these writpetitions. The writ petitions are dismissed with no order as tocosts.

[MOHAMMAD RAFIQ],J.