WP/9715/1994 of CHANDRA SEKHARA KIRANA MERCHANT KMG. Vs JT.COLLECTOR KARIMNAGAR AND 2 OTHERS on 17 May 1994

ORDER:

Heard Sri R.Prem Sagar, learned Standing Counsel forthe petitioners and Sri P.Kishore Rao, who appeared forthe respondents.

This Writ Petition is filed aggrieved by the award ofthe Industrial Tribunal-cum-Labour Court, Godavarikhani, inI.D.No.85 of 1991, dated 23.10.1992, whereby, the firstrespondent, who claimed to have worked with the petitionerfrom 1968 to 1974 was directed to be reinstated intoservice on the ground of violation of Section 25-F of theIndustrial Disputes Act (for short, ‘the Act’) as a freshcandidate, but was, however, denied backwages and otherbenefits on the ground that he had approached the Tribunalbelatedly i.e., seventeen years after his allegedtermination.

The petitioner herein filed a counter before theTribunal, wherein, a specific plea was taken that since theywere not supposed to keep the records beyond ten years,consequently, the records were destroyed due to which, norecords were available to show as to whether the firstrespondent worked with them from 1968 to 1974. Thepetitioner denied that the first respondent workedcontinuously from 1968 to 1974 as an N.M.R on dailywages, and contended that an N.M.R. would not be engaged for such a long period. The petitioner also denied theallegations made by the first respondent and put the firstrespondent to strict proof of the same. It is also stated inthe counter that the qualifications for appointment of WorkInspector is BE/LCE, that the name of the candidate isrequired to be sponsored through the Employment Exchangeand that the appointing authority is the SuperintendingEngineer, P.R. Karimnagar. The petitioner herein also tookthe plea of inordinate delay and latches of more thanseventeen years in approaching the Tribunal.

The Tribunal relied on a Xerox copy of the list ofcandidates appointed from time to time as Work Inspectorsfrom 1959 to February, 1970, though an objection was takento the marking of such a document, and held that, since thename of the first respondent herein was shown at serialno.46 and the date of appointment was shown as01.04.1968, the 1[st]respondent was appointed videproceedings dated 15.06.1968, and as the petitioner hadnot filed any documents or adduced any oral evidenceexamining such of its officials, who had worked under thepetitioner herein during the said period, it must be heldthat the first respondent herein had worked for the periodas mentioned by him in his evidence, which was more than240 days in a given calendar year or within the 12 monthscontinuous period prior to his removal from service i.e., on21.12.1974 and that he was therefore entitled for theprotection of Section 25-F of the Act.

It is well settled by a catena of judgments of theSupreme Court, in Manager, Reserve Bank of India,Bangalore v. S.Mani[[1]]; Batala Coop. Sugar Mills Ltdv. Sowaran Singh[[2]];Surendranagar DistrictPanchayat v. Dahyabhai Amarsinh[[3]]; Chief Engineer(construction) v. Keshava Rao (dead) by Lrs[[4]]; Range Forest Officer v. S.T.Hadimini[[5]], that the burden is onworkman to establish that he worked for a period of 240days during the period of 12 months prior to his terminationand it is only if this initial burden is discharged by theworkman concerned, would the burden shift on theemployer.

In the present case, the first respondent hereinapproached the Tribunal seventeen years after his allegedtermination. He claimed to have worked from 1968 to1974. The petitioner herein has specifically stated, in itscounter before the Tribunal, that since they were notrequired to maintain records beyond ten years, all recordsbeyond the said period of ten years had been destroyed andthat there was nothing to show that the first respondenthad worked with them. It is also stated therein that N.M.Rsare normally not engaged for such a long period. Except forthe self serving oral testimony of the first respondentworkman, there is no other evidence on record to show thathe worked for a period of 240 days during the 12 monthsperiod preceding his alleged termination. Reliance placed by the Tribunal on a xerox copy of the list of workmen tohold that the first respondent was appointed on 15.06.1968is contrary to law, more so as no cogent reasons werefurnished by the workman for not producing the original, inany event, even this document does not show that thepetitioner worked for a period of 240 days during the 12months period preceding his termination. In the absence ofany evidence, except the self serving oral testimony of theworkman himself, the Tribunal acted contrary to law inaccepting the oral evidence of the first respondent and inholding that he had put in the required 240 days of servicein the 12 months period preceding his termination. Thefindings of the Tribunal are based on no evidence and areperverse. The impugned award is, accordingly, quashed.

The Writ Petition is allowed. However, in thecircumstances, without costs.

_______________________

(RAMESH RANGANATHAN,J)

06.02.2007vv

[1](2005) 5 SCC 100[2](2005) 8 SCC 481[3](2005) 8 SCC 750[4](2005) 11 SCC 229[5](2002) 3 SCC 25