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  IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3701 OF 2015 (Arising out of SLP (c) 30561 of 2014)

GAURI SHANKER                          ………… APPELLANT       Vs. STATE OF RAJASTHAN                     ………… RESPONDENT

J U D G M E N T

V. GOPALA GOWDA, J.

   Delay condoned. Leave granted.

2. This  appeal  is  directed  against  the  impugned  

judgment and order dated 4.4.2014 passed by the High  

Court  of Judicature of Rajasthan at Jodhpur in D.B.  Civil Special Appeal (Writ) No. 54 of 2014, wherein  

the High Court declined to interfere with the order  

dated 18.11.2013 of the learned single Judge passed in  

S.B. Civil Writ Petition No. 4253 of 2002 wherein the  

learned single Judge proceeded to consider the writ  

petition  filed  by  the  respondent-Department  against  

the award dated 28.6.2001 of the Labour Court, Bikaner  

NON-REPORTABLE

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in  Labour  Dispute  Case  NO.  94  of  1994  whereby  the  

Labour  Court  after  adjudication  of  the  points  of  

dispute held that the retrenchment of the appellant-

workman (for short “the workman”) from his services  

with effect from 1.4.1992 is improper and invalid and  

directed  the  employer  for  the  reinstatement  of  the  

workman in his post.

 3. Brief resume of facts are stated hereunder for the  

purpose of appreciating the rival legal contentions to  

examine  whether  the  impugned  judgment  and  orders  

passed by the Division Bench of the High Court and the  

learned  single  Judge  warrant  interference  by  this  

Court in exercise of its appellate jurisdiction.

4. The workman was working in the respondent-Forest  

Department, Chattargarh, District Bikaner at Rajasthan  

State (for short ‘the respondent-Department’). It is  

the case of the workman that he was appointed against  

the  permanent  and  sanctioned  post  with  effect  from  

1.1.1987 till his services came to be retrenched, i.e.  

on 1.4.1992 and has rendered service of more than 240  

days in every calendar year and has received salary

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from the respondent-Department each month. The workman  

aggrieved by the order of retrenchment passed by the  

respondent-Department has raised an industrial dispute  

questioning the correctness of the order in removing  

him from his service  inter alia contending that the  

same is in violation of Sections 25F Clauses (a) and  

(b), 25G and 25H of the Industrial Disputes Act, (for  

short “the Act”), therefore, the retrenchment of the  

workman from his service is void ab initio in law and  

prayed  for  setting  aside  the  same.  The  State  

Government  in  exercise  of  its  power  referred  the  

industrial  dispute  between  the  workman  and  the  

respondent-department  to  the  Labour  Court,  Bikaner  

vide  Notification No.  P.1(1) [2234]Shrm  Ni/93 dated  

28.1.1994 for adjudication  of the following points of  

dispute:-

“Whether removal of workman Gauri Shankar  son of Bhairuan (who has been represented  by  the  General  Secretary,  Forest  Labour  Union, Tyagi Vatika Jailwell, Bikaner) by  the Employer, Deputy Conservator of Forest,  Chhattargarh, Bikaner is just and legal? If  no, to what relief and amount the workman  is entitled to?”

5. On  receipt  of  the  reference,  both  the  parties

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filed  their  respective  claim  statements  in  

justification  of  their  respective  cases.  It  is  the  

case of the workman before the Labour Court that he  

has  been  appointed  as  a  permanent  workman  in  the  

permanent post of the respondent-Department and that  

he has worked from 1.1.1987 till his termination from  

1.4.1992 and he has been paid his salary on daily wage  

basis every month mentioning his name as a daily wage  

earner in the muster roll. The service of the workman  

was retrenched by the respondent-Department allegedly  

because he did not agree to join the new Union as per  

the recommendation of the respondent-Department. It is  

contended on behalf of the workman that his removal  

from service by the respondent-Department is otherwise  

misconduct  on the  part of  the respondent-Department  

and therefore, it amounts to retrenchment as defined  

under Section 2(oo) of the Act. Before removing the  

workman  from  his  services  the  respondent-Department  

neither published any seniority list nor followed the  

rule of first come last go and thereby there is a  

blatant  violation  of  Rules  77-78  of  Rajasthan  

Industrial Disputes Rules, 1958. It is also further

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stated that before removing him from the services, the  

respondent neither issued one month’s notice nor paid  

one  month’s  wages  nor  obtained  permission  from  the  

State Government to retrench him from the services and  

also  did  not  pay  retrenchment  compensation  as  per  

Section 25F(b) of the Act to the workman. Further, it  

is contended that the act of the employer amounts to  

unfair labour practice as defined under Section 2(ra)  

and prohibited under Section 25T of the Act for which  

the respondent-Department is liable for penal action  

as provided under Section 25U of the Act. Therefore,  

the retrenchment of the workman is bad in law, as the  

same is in blatant violation of Sections 25F, 25G,  

25H, 25T and 25U of the Act and therefore, the order  

of retrenchment is rendered void ab initio in law.

6. The  respondent-Department  filed  its  reply  

statement denying the claim made by the workman and  

stated that he was not appointed on any post, the work  

place as stated by him is at Dandi site of Sattasar  

Range  and  that  during  the  period  of  last  one  year  

before the alleged retrenchment  he has not worked  

even  for  a  day.  Further,  it  is  contended  that  the

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respondent-Department  has  not  constituted  any  Union  

and that the workman was neither retrenched nor any  

provision of the Act and Rules have been contravened  

as stated by him in his claim petition. Further, it is  

stated  by  the  respondent-Department  that  from  the  

perusal of the Government record, it has been found  

that the workman has not worked even for a day during  

the year 1991, and that he worked on casual basis in  

November, 1988 for 26 days, in October, 1989 for 26  

days, in September, 1989 for 26 days, in June, 1989  

for 26 days and in March, 1989 for 24 days and that in  

between these periods the workman was absent from work  

on his own volition. It is further contended by the  

respondent-Department that after November, 1989 up to  

the date of retrenchment he has never been engaged for  

work and did not attend for work without giving any  

prior notice/information that he has left the job on  

his own. It is therefore contended by the respondent-

Department that it is neither an industrial dispute  

nor  is  the  appellant  a  workman  and  moreover,  the  

respondent-Department  is  not  an  industry  and  

therefore, the dispute raised by the workman is not an

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industrial  dispute  and  the  Labour  Court  has  no  

jurisdiction  to  entertain  the  same.  It  is  further  

contended by the respondent-Department that there has  

been an extraordinary delay in raising the dispute,  

without assigning proper and satisfactory explanation  

and the same is referred by the State Government to  

the Labour Court for its adjudication. Therefore, the  

respondent-Department  prayed  for  rejection  of  the  

order of reference made to the Labour Court.

7. Both the parties have adduced evidence before the  

Labour Court in support of their respective claim and  

counter  claim.  The  Labour  Court  has  examined  the  

evidence of the workman and the evidence of Munnalal,  

the witness of the respondent-Department wherein, in  

his affidavit evidence he has stated that the workman  

was  posted  as  the  Area  Forest  Officer  in  Sattasar  

Forest  Division-Chattargarh from  July, 1989  to May,  

1991 and further stated that the contention of the  

workman  that  he  was  removed  from  the  service  on  

1.1.1991 is incorrect. It is further elicited in his  

evidence  by  cross  examination  that  there  were  many  

places of work and different muster rolls were being

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used and maintained for each site and he has further  

admitted  that  muster  rolls  of  Dandi  road  site  and  

Nursery (Dandi) both are separate and muster rolls of  

Dandi  road  site  were  not  produced.  From  the  

submissions made by the parties and perusal of the  

record, the Labour Court observed that it has been  

submitted  by  the  respondent-Department  that  in  the  

reference  of  the  industrial  dispute  there  is  no  

mention of the date on which the workman’s services  

were dispensed with by the respondent-Department and  

the one year prior to the date of alleged removal, the  

workman  has  not  worked  for  a  single  day  with  the  

respondent-Department.  The  said  contention  of  the  

respondent-Department  was  disbelieved  by  the  Labour  

Court and it has held that he has been removed from  

service on 1.4.1992. The Labour Court after referring  

to the judgments of this Court examined the plea in  

the  claim  statements  with  regard  to  the  date  of  

removal and referred to the judgments of this Court in  

the cases of Madan Pal Singh v. State of U.P. & Ors.1,  

Samishta Dube  v. City Board, Etawah & Anr.2 and  H.D.  

1   (2000) 1 SCC 683 2   (1999) 3 SCC 14

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Singh  v. Reserve  Bank  of  India  &  Ors.3  and  on  

examining the muster rolls of Dandi Nursery marked as  

Ext. M-1 to 25 it was held to be not proper. Further,  

it  has  held  that  the  respondent-Department  has  

deliberately  concealed  the  period  of  work  of  the  

workman  in  the  respondent-Department  though  he  has  

continuously worked in the respondent-Department from  

1.1.1987 to March, 1992 i.e. for more than 240 days in  

a calendar year. The Labour Court after hearing the  

parties  and  perusal  of  the  record,  adjudicated  the  

points of dispute referred to it by answering the same  

in  favour  of  the  workman  and  holding  that  the  

respondent-Department  failed  to  comply  with  the  

mandatory requirements as provided under Section 25F  

clauses (a) and (b) and Sections 25G and 25H of the  

Act, therefore, it was held by the Labour Court that  

the  action  of  the  respondent-Department  was  in  

contravention of the aforesaid statutory provisions of  

the Act and Rules 77 and 78 of the Central Industrial  

Dispute Rules, 1957. Thus it was held by the Labour  

Court that the termination order passed against the  

workman  is  illegal  and  void  ab  initio in  law  and  3    1985 ( 4 )  SCC  201

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therefore, it has passed the award of reinstatement on  

28.06.2001, but denied back-wages for the reason that  

he has not worked from 1.4.1992 till passing of the  

award.  Further,  on  account  of  the  hardship  and  

difficulties undergone by the workman during the said  

period  it  has  observed  that  he  is  entitled  for  

compensation of Rs.2,500/- and he is also entitled for  

receiving salary from the date of the award till the  

date of reinstatement.

8. The correctness of the award was challenged by the  

respondent-Department by filing a writ petition before  

the  single  Judge  of  the  High  Court  urging  certain  

legal grounds and questioned the correctness of the  

finding and reasons recorded by the Labour Court on  

the contentious points in the award holding that the  

workman has rendered 240 days of work in a calendar  

year and he has continuously worked from 1987 to 1992  

and  prayed  for  setting  aside  the  same  as  it  is  

erroneous in law by placing strong reliance upon the  

Circular instructions dated 28.9.2012 and 23.10.2013  

in  relation  to  the  industrial  dispute  cases  for  

awarding compensation of Rs.2,500/- for the hardship

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and difficulties suffered by the workman. The learned  

single Judge in his judgment observed that the Labour  

Court arrived at the conclusion that the workman was  

discontinued from service from 1.4.1992, and further  

the  said  finding  is  based  on  the  conduct  of  the  

employer in not producing the relevant muster rolls  

maintained by them either before the Labour Court or  

before the learned single Judge of the High Court or  

without assigning any reason for non-production of the  

relevant  records  which  must  be  in  possession  and  

custody of the respondent-Department.

 9. It was further observed by the single Judge that  

the  workman  in  definite  terms  has  stated  in  his  

affidavit  that  he  remained  in  service  of  the  

respondent-Department till March 1992. In this factual  

background, the learned single Judge held that he did  

not find any fault with the finding rendered by the  

Labour Court that the workman remained in service till  

March 1992 and that he was retrenched thereafter from  

his service. The order of termination was held to be  

void ab intio in law due to the non-compliance of the  

provisions of Sections 25F clauses (a) and (b), 25G

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and 25H of the Act and in normal course, its natural  

corollary  is  reinstatement  in  service.  However,  

looking into the fact that the workman was retrenched  

from his services back in March 1992 and that he was  

working just on casual basis, the learned single Judge  

held that the equities shall be balanced by awarding  

compensation of Rs.1,50,000/- in lieu of reinstatement  

and accordingly, disposed of the case vide judgment  

and  order  dated  18.11.2013.  The  correctness  of  the  

same is questioned by the workman in appeal before the  

Division Bench of the High Court. The Division Bench  

affirmed the said view of the learned single Judge of  

the High Court vide impugned order dated 04.04.2014.  

The correctness of the same is challenged before this  

Court urging various legal contentions.  

10. The learned counsel for the workman submits that  

once the Labour Court which is the fact finding court  

recorded the finding of fact on the basis of pleadings  

and  evidence  on  record  and  answered  the  points  of  

dispute after adjudication of the same and held that  

the termination order passed against the workman is in  

violation of Sections 25F clauses (a) and (b), 25G and

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25H  of  the  Act,  the  High  Court  has  exceeded  its  

jurisdiction in exercise of its Judicial Review power  

under Articles 226 and 227 of Constitution of India in  

holding that the workman is a casual workman as he was  

intermittently  working  as  a  daily  wage  worker  and  

therefore, he is not entitled for reinstatement  as  

awarded by the Labour Court by following the principle  

of  normal  rule  and  further  erroneously  has  awarded  

reinstatement  of  the  workman  and  compensation  of  

Rs.2,500/- for the hardship and difficulties suffered  

by  him  which  is  contrary  to  the  judgments  of  this  

Court in a catena of cases.

11. It  is  further  contended  by  the  learned  counsel  

that the High Court has exceeded its jurisdiction in  

interfering with the finding of fact recorded by the  

Labour Court on the points of dispute in exercise of  

its original jurisdiction. The same is contrary to the  

judgment of this Court in  Harjinder Singh  v.  Punjab  

State Warehousing Corporation4 wherein this Court has  

referred  to  Syed  Yakoob    v.   K.S.  Radhakrishnan  and    

Ors.5. 4  (2010) 3 SCC 192 5  AIR 1964 SC 477

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12. The learned counsel for the respondent-Department  

has sought to justify the impugned judgment contending  

that the High Court in exercise of its extraordinary  

and supervisory jurisdiction has held that he was a  

casual  employee  intermittently  working  with  the  

respondent-Department. Therefore, the compensation was  

awarded in lieu of reinstatement of workman in his  

post by applying the Circular instructions issued by  

the State Government; the same need not be interfered  

with by this Court in exercise of its Jurisdiction as  

there is no mis-carriage of justice in the case on  

hand.

13. With  reference  to  the  aforesaid  rival  legal  

contentions urged on behalf of the parties, we have to  

answer  the  following  contentious  issues  that  would  

arise for our consideration :-

a. Whether  the  Labour  Court  was  

justified in not awarding backwages and  

granting  Rs.2,500/-  as  compensation  in  

lieu of backwages though it has awarded  

reinstatement in the absence of gainful

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employment of workman?

b. Whether the High Court in exercise of  

its  supervisory  jurisdiction  under  

Articles  226  and  227,  is  justified  in  

interfering  with  the  finding  of  facts  

recorded  on  the  points  of  dispute  

recorded by the Labour Court in the award  

passed by it?

c. What award?

14.  The aforesaid contentious points are required to  

be answered in favour of the workman for the following  

reasons:

    It  is  not  in  dispute  that  the  workman  was  

employed  with the  respondent-Department in  the year  

1987 and on the basis of material evidence adduced by  

both  the  parties  and  in  the  absence  of  the  non-

production of muster rolls on the ground that they are  

not  available,  which  contention  of  the  respondent-

Department is rightly not accepted by the Labour Court  

and it has recorded the finding of fact holding that

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the workman has worked from 1.1.1987 to 1.4.1992. The  

Labour Court has drawn adverse inference with regard  

to non-production of muster rolls maintained by them,  

in this regard, it would be useful to refer to the  

judgment of this Court in the case of Gopal Krishnaji  

Ketkar v. Mohd. Haji Latif & Ors.6  wherein it was held  

thus:

“5. ………Even if the burden of proof does not lie  on  a  party  the  Court  may  draw  an  adverse  inference if he withholds important documents  in his possession which can throw light on the  facts at issue. It is not, in our opinion, a  sound practice for those desiring to rely upon  a certain state of facts to withhold from the  Court  the  best  evidence  which  is  in  their  possession  which  could  throw  light  upon  the  issues  in  controversy  and  to  rely  upon  the  abstract  doctrine  of  onus  of  proof.  In  Murugesam Pillai v.  Gnana Sambandha Pandara  Sannadhi, Lord Shaw observed as follows:

"A practice has grown up in Indian  procedure of those in possession of  important  documents  or  information  lying  by,  trusting  to  the  abstract  doctrine of the onus of proof, and  failing, accordingly, to furnish to,  the, Courts the best material for its  decision.  With  regard  to  third  parties,  this  may  be  right  enough- they have no responsibility for the  conduct of the suit but with regard  to the parties to the suit it is, in  their Lordships' opinion an inversion  of sound practice for those desiring  

6  AIR 1968 SC 1413

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to rely upon a certain state of facts  to  withhold  from  the  Court  the  written evidence in their possession  which  would  throw  light  upon  the  proposition."

This passage was cited with approval by this  Court in a recent decision--Biltu Ram & Ors. v.  Jainandan Prasad & Ors. In that case, reliance  was placed on behalf of the defendants upon the  following  passage  from  the  decision  of  the  Judicial  Committee  in  Mt.  Bilas  Kunwar  v.  Desraj Ranjit Singh :-  

"But  it  is  open  to  a  litigant  to  refrain  from  producing  any  documents  that  he  considers  irrelevant;  if  the  other  litigant  is  dissatisfied  it  is  for him to apply for an affidavit of  documents and he can obtain inspection  and production of all that appears to  him in such affidavit to be relevant  and  proper.  If  he  fails  so  to  do,  neither  he  nor  the  Court  at  his  suggestion  is  entitled  to  draw  any  inference  as  to  the  contents  of  any  such documents."

The said finding of the Labour Court is re-affirmed by  

the  learned  single  Judge  which  also  affirmed  the  

finding that the action of the respondent-Department  

in  terminating  the  services  of  the  workman  w.e.f.  

1.4.1992 is a case of retrenchment as defined under  

Section 2(oo) of the Act as the termination of the

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services of the workman is otherwise for misconduct by  

the  respondent-Department.  Further,  undisputedly  the  

non-compliance  of  the  mandatory  requirements  as  

provided under the provisions of Sections 25F clauses  

(a) and (b), 25G and 25H of the Act read with Rules 77  

and 78 of the relevant Rajasthan Industrial Dispute  

Rules,  1958  has  rendered  the  order  of  termination  

passed against the workman void ab initio in law. The  

Labour Court in the absence of any material evidence  

on  record  in  justification  of  the  case  of  the  

respondent-Department has rightly recorded the finding  

of fact and held that the order of termination passed  

against the workman is bad in law, the same being void  

ab  initio  in  law  it  has  passed  an  award  for  

reinstatement of the workman in his post in exercise  

of  its  original  jurisdiction  under  provision  of  

Section 11 of the Act. The Labour Court has rightly  

followed  the  normal  rule  of  reinstatement  of  the  

workman in his original post as it has found that the  

order of termination is void ab-initio in law for non  

compliance with the mandatory provisions of the Act  

referred to supra. However, the Labour Court is not

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correct  in  denying  backwages  without  assigning  any  

proper and valid reasons though the employer did not  

prove  either its  stringent financial  conditions for  

denial  of  back  wages  or  that  workman  has  been  

gainfully employed during the period from the date of  

order  of  termination  till  the  award  was  passed  in  

favour of the workman except granting Rs.2,500/- as  

compensation for the suffering caused to the workman.  

The same is erroneously modified by the learned single  

Judge who recorded the finding of fact for the first  

time by holding that the workman is a casual employee  

intermittently  working  in  the  respondent-Department.  

The  learned  single  Judge  of  the  High  Court  has  

exceeded his jurisdiction under Articles 226 and 227  

of  the  Constitution  of  India  as  per  the  legal  

principles  laid  down  by  this  Court  in  the  case  of  

Harjinder Singh  (supra) wherein this Court has held  

thus:-

“17.  Before  concluding,  we  consider  it  necessary to observe that while exercising  jurisdiction under Articles 226 and/or 227  of  the  Constitution  in  matters  like  the  present one, the High Courts are duty bound  to  keep  in  mind  that  the  Industrial  Disputes Act and other similar legislative  instruments are social welfare legislations

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C.A.  @  SLP (C) No. 30561 of 2014                              21

from 1.1.1987 to 1.4.1992 and that non-compliance of  

the mandatory requirements under Sections 25F, 25G and  

25H of the Act by the respondent-Department rendered  

its  action  of  termination  of  the  services  of  the  

workman as void ab initio in law and instead the High  

Court  erroneously  awarded  a  compensation  of  

Rs.1,50,000/-  in lieu  of reinstatement.  The learned  

single  Judge  and  the  Division  Bench  under  their  

supervisory jurisdiction should not have modified the  

award  by  awarding  compensation  in  lieu  of  

reinstatement which is contrary to the well settled  

principles of law laid down in catena of cases by this  

Court.

16. In  view  of  the  foregoing  reasons,  the  modified  

award passed by the learned single Judge of the High  

Court which was affirmed by the Division Bench of the  

High  Court  has  rendered  the  impugned  judgment  and  

order bad in law as it suffers from not only erroneous  

reasoning but also an error in law. Therefore, the  

same are liable to be set aside. Hence, we pass the  

following order:-

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C.A.  @  SLP (C) No. 30561 of 2014                              22

a) The appeal of the workman is allowed. The  judgment and orders of the learned single  Judge and the Division Bench of the High  Court are hereby set aside and the award  of the Labour Court is restored in so far  as  the  order  of  reinstatement  is  concerned;

b) The  respondent-Department  is  further  directed to reinstate the workman in his  post and pay 25% back-wages from the date  of  termination  till  the  date  of  award  passed by the Labour Court and full salary  from date of award passed by the Labour  Court till the date of his reinstatement  by  calculating  his  wages/salary  on  the  basis of periodical revision of the same  within  six  weeks  from  the  date  of  the  receipt of the copy of this judgment.

             …………………………………………………………J.

                             [V.GOPALA GOWDA]

  …………………………………………………………J.                               [C.NAGAPPAN]

 New Delhi,   April 16, 2015.