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M/S Allahabad Dugdh Utpadak Sahkari Sangh Ltd. v. State Of U.P.And Others - WRIT - C No. 26273 of 1999 [2004] RD-AH 974 (30 September 2004)


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Court No.51

Civil Misc. Writ Petition No.26273 of 1999

M/s Allahabad Dugdh Utpadak Sahkari Samiti Vs. State of U.P. and others


Hon'ble V.C. Misra, J.

Heard Sri J.N. Tiwari, Senior Advocate assisted by Sri G.D. Misra learned counsel for the petitioner, and Sri D.S. Misra, learned counsel for the respondent no.3 and the learned standing counsel for the respondents 1 & 2.

1. This writ petition has been filed challenging the impugned award dated 25.9.1998 annexure-21 to the writ petition passed by the Industrial Tribunal-respondent no.2 by which an award has been made in favour of respondent no.3-workman directing the petitioner to reinstate him in service without back wages.

2. The case of the petitioner in brief is that the respondent no.3 was engaged as daily wager for 30 days in April 1985 and for 15 days in May 1985 and he was never engaged thereafter. The respondent no.3 raised an industrial dispute on 26.2.1991 after a lapse of 6 years, mentioning therein that he was appointed on 7.1.1985 as daily sahaik and his services had been wrongly and illegally retrenched on 31.12.1991 without compliance of the provisions of Section 6-N of the U.P. Industrial Disputes Act, hereinafter referred to as ''the Act'. A reference was made under Section 4-K of the Act and the matter was finally adjudicated by the Industrial Tribunal-I, U.P., Allahabad numbered as Adjudication Case No.42 of 1993. The respondent no.3-workman before starting the reconciliation proceedings had never made any claim for reinstatement by any application or representation before the employer and, thus, the dispute does not come within the purview of the Industrial Dispute Act, 1947.  It was also submitted that the respondent no.3 was never an employee of the petitioner at Allahabad, but he had been engaged only as a daily wager for 45 days.  He had not been retrenched from service from 31.12.1991.  There had been no relationship of master-servant between the respondent no.3 and the petitioner.  The name of respondent no.3 was never in the list of the employees, who have been considered for regularization, as per the agreement entered into between the employees' union and the petitioner dated 1.9.1987 and dated 31.12.1988. Documentary and oral evidence were led on both sides. The workman-respondent no.3 asked for the production of the attendance register for the period 1984 to 1990 along with other documents in possession of the petitioner-employer. The petitioner submitted all the documents except the attendance register on the plea that the said register was not available. However, the secondary evidence was led by the petitioner to prove the working days of the respondent no.3.

3. The case of the respondent no.3 is that he was appointed by an oral order dated 14.1.1984 as a dairy boy and thereafter on 7.1.1985 he was appointed on the post of dairy assistant by an order in writing to supply the milk at the camp of Mela.  The said order indicated that the work would remain effective till the conclusion of Mela.  Neither written order of termination is given nor any notice nor one month's salary in lieu of notice or retrenchment compensation was given to him, though he was a regular employee in the establishment.

4. The tribunal-respondent no.2 on the basis of pleadings available on the record came to the conclusion that neither documentary evidence in respect with the appointment of the workman on permanent post of dairy assistant had been filed by him nor there was any written order of appointment as such in permanent capacity. It has also been found by the tribunal that the name of Ram Prasad at Serial No. 3 of the list of the employees of the petitioner placed by the representative of the workman before it was a typed order and had been interpolated by the ink to look like Ram Pratap and the word Misra had been added by hand and there was no initial on the cutting or interpolation by the signing authority.  The tribunal held the said Ex. W 1 to be patently a document which was forged one and the interpolation on the paper could not be justified and taken to be genuine one.  Neither the working of the respondent no.3 in the establishment since 7.1.1985 on a permanent capacity up to 31.12.1991 was corroborated by any evidence nor the workman was ever appointed on any permanent basis or any post in the establishment.  It was also found that there was absolutely no evidence on the record to show that the workman ever worked in the establishment after 1985 for at lest 240 days in the preceding 12 months from the date of termination/retrenchment.  The tribunal also found on the basis of the document on record that the workman was not able to show that he had been paid bonus or salary or wages continuously during the alleged period of his service.  The tribunal has also referred that since the original attendance register for the period 1984 to 1991 was not traceable in the establishment of the petitioner, as such the secondary evidence had been filed.

5. The tribunal, however, on the basis of the submission of the representative of the workman that since the attendance register had not been produced for the period 1984 to 1991 by the employer-petitioner, an adverse inference should be drawn against it and even if the workman had not proved by the documentary evidence regarding his appointment on regular basis or permanent basis, the alternative case, to the effect that he had been working continuously for more than 240 days should not be ignored.  The tribunal held that the workman had a right in submitting that he had been regularly working in the establishment and he was retrenched illegally. The employer had not produced documentary evidence in their possession and there was no reason to disbelieve the workman, who on oath has stated before it that he had been working regularly in the establishment till the date of his illegal retrenchment, and the workman had a right in submitting so.            

6. I have looked into the record of the case and heard learned counsel for the parties at length and find that the tribunal-respondent no.1 has grossly erred in arriving at the conclusion on surmises and conjectures that the workman-respondent no.3 had actually worked for more than 240 days only on the basis of the adverse inference drawn by it in absence of the attendance register though it had found that no documentary evidence was filed by the workman in support of his case of employment for more than 45 days, and whereas also since the entire secondary evidence was available on record it should have been considered by it before arriving at such a conclusion but the respondent no.1 has failed to consider the same, which disclosed that the respondent no.3 had worked for only 45 days.

7. The respondent no.1 has committed manifest error apparent on the face of the record by ignoring the secondary evidence available on record and directing for reinstatement of the respondent no.3, which is based on perverse findings. The impugned award dated 25.9.1998, annexure-21 to the writ petition is quashed. The writ petition is allowed. The case is remanded back to the respondent no.1 to decide the case afresh after taking into consideration the entire material on record, in accordance with law. No order as to costs.

September 30, 2004/Hasnain/pkc


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