A single judge bench of the Rajasthan High Court comprising of Justice Sudesh Bansal, held that an adverse inference can’t be drawn against employer for non-production of record against workman’s service period, it is upon the workman to prove their service period of 240 days preceding termination of service.
Background Facts
The workman was appointed as Watchman by the Respondent-Department, on 11.03.1997 and he continued to work from 11.03.1997 to 31.03.1998. The department terminated him from service on 01.04.1998. Aggrieved by the same, the workman approached the Labour court.
It was found by the Labour Court that the workman rendered services only for a period of 131 days, hence there was no violation of Sections 25F, 25G and 25H of Industrial Disputes Act, 1947 (I.D. Act), which require that a workman should have worked for 240 days in a calendar year with the employer. Further the Labour Court also observed that the appointment of workman as Watchman was contractual based and covered under the provisions of Section 2(oo)(bb) of ID Act, 1947.
It was contended by the workman that he was terminated from the service by the respondent without following the guidelines and rules. Thus his termination was illegal. Further it was contended by the workman that an adverse inference should be drawn against the respondent-employer due to non-production of the record against workman’s service for 240 days.
On the other hand it was contended by the respondent that the workman was terminated after following the proper procedure and Sections 25F, 25G and 25H of Industrial Disputes Act, 1947. Further the respondents countered the self-serving affidavit produced by the workman in support of his claim of working for 240 days.
Findings of the Court
It was observed by the court that the onus to prove his case lies upon the workman. Further that the workman did not produce any supportive evidence or record to prove his working for 240 days in a year.
In the case of R.M. Yellati Vs. Asstt. Executive Engineer, the Supreme Court held 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 required to be discharged by the workman by adducing strong evidence, both oral and documentary and mere affidavit or self-serving statements of the workman will not suffice to discharge such burden on the workman.
It was also observed by the Supreme Court that the workman claimant can call upon the employer to produce before the Court, the nominal muster roll for the given period, letter of appointment or termination, the wage register, the attendance register etc. When the workman could not discharge his onus, mere non-production of muster roll per see without any plea of suppression by the claimant workman will not be a ground for drawing an adverse inference against the employer.
The case of Chairman, Municipal Board Vs. Mahavir Prasad Sharma was relied upon by the court wherein the Rajasthan High Court held that mere production of the affidavit by the workman is not sufficient and non-production of the record by the Management will not allow the Court to draw an adverse inference against the management.
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In the case of Dhara Vs. Presiding Officer, the Delhi High Court declined to draw an adverse inference against the management for non-production of muster roll, when the petitioner admitted that he had never summoned the relevant muster roll himself nor he had taken any plea of suppression of such recourse by the management. Further merely on the basis of affidavits made by the workman, it was not held to be sufficient evidence to establish the fact of working for 240 days in a calendar year.
It was observed by the court that since the workman has only produced his self-serving affidavit in support of his claim which too has been countered from the side of respondents. No other supportive evidence or record has been produced by the petitioner nor any efforts were made to summon the record, muster roll register, attendance register, wages register etc. from the respondents.
Therefore it was held by the court that an adverse inference cannot be drawn against the respondent for non-production of the record. It was further held by the court that the findings of the Labour Court were based on appreciation of evidence. Therefore the impugned order was not interfered by the High Court.
With the aforesaid observations, the writ petition was dismissed.
Case No. : S.B. Civil Writ Petition No. 1243/2016
Counsel for the Petitioner : Ritesh Kumawat for Abdul Kalam Khan
Counsel for the Respondents : N/A
Source : livelaw
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