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Kamani Engineering Corporation Ltd. Vs. Ganeshram K. Verma and anr. - Court Judgment

LegalCrystal Citation
SubjectLobour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 809 of 1979
Judge
Reported in1983WLN(UC)387
AppellantKamani Engineering Corporation Ltd.
RespondentGaneshram K. Verma and anr.
DispositionApplication dismissed
Excerpt:
.....and not to rely upon the abstract doctrine of burden of proof.;the basic fact remains that ex.w. 6 leave record which has been reled upon by the labour court, shows that the leave from 26th of march, 1975 to 19th of april, 1975 was sanctioned by the management and that being so the other evidence oral or documentary having not been produced by the management to disprove it in the form of leave register as mentioned above, or the duplicate copy or counter of this leave record or evidence of mr. naiya the finding of the labour court on this point cannot be assailed solely on the abstract doctrine of burden of proof.;writ dismissed - - mathur has challenged this finding of the labour court also preliminarily on the ground that the workman has failed to discharge the burden of proof on..........consideration.4. annexure 11 produced in this court which was ex. w. 6 before the labour court is leave record of the workman concerned. s. nos. 1,2 and 3 of this are not in dispute. s. no. 4 which relates to the period from 25-3-75 to 19-4-75 is in dispute. it is alleged to have been signed by mr. naiyar, an officer of the petitioner who has also signed the earlier entries on 12th of march and 6th of march in column with the head 'sanction and signature'.5. mr. mathur's contention is that the workman concerned has failed to produce mr. naiyar for proving his signatures in this column on 21st of april, 1975 and, therefore, the labour court was in serious error in relying upon this document for holding that the workman concerned was on leave during this period commencing from 26-3 75 to.....
Judgment:

G.M. Lodha, J.

1. Heard learned Counsel for the parties. In this writ application Mr. J.K. Mathur, appearing for the petitioner has challenged the judgment of the Labour Court on the principal ground that the finding that the automtatic termination of a workman on account of his absence from duty for more than 8 days cannot be termed as retrenchment. Mr. Sharma appearing for the workman submits that the contention of Mr. Mathur on this point is not correct, but it is not necessary to decide this point in this case as the finding of the Labour Court is that the workman was not absent and his leave from 26th March, 1975 to 19th April, 1975 was sanctioned by the Management.

2. Mr. Mathur has challenged this finding of the Labour Court also preliminarily on the ground that the workman has failed to discharge the burden of proof on this point and the document produced by him Ex. W. 6 has not been properly proved. It was also argued that the workman has admitted in Annexure 17 that he has remained absent from duty and this important admission of the workman contained in Annexure 17 has not been considered by the Labour Court on account of which the entire judgment is vitiated.

3. I have considered the respective contentions of the learned counsel for the parties. The crucial question to be considered in this case is whether the respondent workman remained on leave during the period commencing from 26-3-75 to 19-4-75. There is no dispute so far as leave from 13-3-75 to 25-3-75 is concerted. In case it is found that he was not on leave during this period then the only question raised by Mr. Mathur that automatic termination on account of absence from duty for more than 8 days cannot be termed as retrenchment, would come for consideration.

4. Annexure 11 produced in this Court which was Ex. W. 6 before the Labour Court is leave record of the workman concerned. S. Nos. 1,2 and 3 of this are not in dispute. S. No. 4 which relates to the period from 25-3-75 to 19-4-75 is in dispute. It is alleged to have been signed by Mr. Naiyar, an officer of the petitioner who has also signed the earlier entries on 12th of March and 6th of March in column with the head 'sanction and signature'.

5. Mr. Mathur's contention is that the workman concerned has failed to produce Mr. Naiyar for proving his signatures in this column on 21st of April, 1975 and, therefore, the labour court was in serious error in relying upon this document for holding that the workman concerned was on leave during this period commencing from 26-3 75 to 19-4-75.

6. I have considered the above contention of Mr. Mathur. It was admitted before me by Mr. Mathur under instructions from the officer of the Company that a register is kept in the petitioner's company wherein a sanctioned leave is recorded of each workman. Even if it is held that this leave record Ex. W. 6 remains with the workman, there is no dispute on this point that the management also has got the record in the form of a register of the sanctioned leave atleast of each workman. When the workman produced Ex. W. 6 and proved it by his evidence in the form of an affidavit on which he was cross examined, it was the duty of the Management to produce the original record in the form of register of leave granted to the workman concerned. Admittedly leave from 13-3-75 to 25-3-75 was granted and if no other leave has been granted as alleged by the Management that register would have shown that the only period for which the leave was granted during the present controverey was 13-3-75 to 25-3-75. Withholding of the register by the Management and more particularly in labour dispute which is tried by labour court between a workman and the Management, gives rise to an adverse inference being drawn against the Management.

7. Mr. Naiyar was also in the service of the Company and no adverse inference can be drawn against the workman for non-production of Naiyar because the workman was out of employment and Mr. Naiyar was serving with the Company. I am of the opinion that in dispute between the labour and the management under the Industrial Disputes Act where-ever and whenever documentary evidence is available with the management, it is the duty of the management to produce the same to assist the labour court and not to rely upon the abstract doctrine of burden of proof. It is to be noted that a workman who is out of employment, has got very limited resources and is handicapped in so many respects in comparison to the management. It would be too much to expect from the workman to produce proof to the extent, the same is required by a plaintiff in a civil case or by the prosecution or complainant in the criminal case, in civil or criminal courts. The very establishment of the labour courts and Industrial Tribunals under the Industrial Disputes Act and the legislature's intention by making no provision for application of technical provisions of the Evidence Act to them, goes to show that speedy justice was intended to be given and imparted without insisting on technalities and by avoiding procedural bottle necks and lengthy litigation. That being so, I am of the opinion that it was for the management to have disproved the entery No. 4 in Ex. W. 6 leave record of 1975 produced by the workman which contains the signatures of its officer at all the four serials in the column 'sanction and signature'.

8. Mr. Mathur's contention that Annexure 17 contains an admission of the workman and the same was not considered by the labour court, now requires consideration. Annexure 17 is an application given by the workman when he was confronted with termination of service and removal on 21st April, when he wanted to resume duties after recovering from sickness. The workman in his cross-examination and the affidavit in para 5 has mentioned that this letter was written by him as instructed by the Personnel officer. In his cross-examination of this affidavit, he has retariated the same. In the cross-examination it was pointed out by Mr. Mathur that the workman has admitted that there was no serious pressure on him but he wrote it under the pressure that it would be considered. This letter of the workman shows that when he was confronted with the situation where be was not allowed to join duties he wanted that he should be allowed to join duties. Though from the statement which has been read before me it cannot be said that he has written this document under some fear of physical injury or any such physical torture but his explanation that he wrote the same Under the pressure that he may be allowed to join duty, cannot be brushed aside. A workman when he is placed in the situation where he faces the dire consequences of unemployment on account of termination of his services, is bound to make all efforts includiug an expression of regret if the management insist on that and even an assurance to make amends. However, that particular situation in which he is doing so, is to be considered and such documents which are written by the workman before the management without something more in the form of surrounding circumstances to rule out the possibility of duress, cannot be termed as voluntary. That being so in the facts and circumstances in which the workman was placed in the present case, when he had choice to decide between a situation where he was to be thrown out of employment with the dire consequences, serious threat to his family to free starvation if a letter as suggested by the Personnel Officer was written by him, it cannot be treated as on weapon against him for validating the order of termination which was otherwise invalid. The basic facts remains that Ex. W. 6 leave record which has been relied upon by the labour court, shows that the leave from 26th of March, 1975 to 19th of April, 1975 was sanctioned by the management and that being so the other evidence oral or documentary having not been produced by the management to disprove it in the form of leave register as mentioned above, or the duplicate copy or counter of this leave record, or evidence of Mr. Naiyar the finding of the labour court on this point cannot be assailed solely on the abstract doctrine of burden of proof.

9. It is also not without significance that the labour court after taking the evidence of the Vaidya, has come to the conclusion that the workman concerned was actually sick during this period of 25th March, 75 to 19th April, 75 and the Management did not dare to produce any evidence contrary to it. That proves inherent truth and corroboration of Ex. W. 6 having the entry at No. 4. Under these circumstances, the finding of the labour court in para No. 8 appears to be perfectly justified. It has been observed in this para 8 that the letter posted by the workman, was proved by the certificate of posting Ex. W. 8 for leave and the two witnesses produced by the Management do not say that the telegram or leave letter was not received by the Com pairs. It has also been observed in this para of judgment that no witness on record has stated that this entry in Ex. W. 6 is unauthorised or incorrect.

10. Mr. Mathur has contended that Mr. Naiyar was only an Accounts officer and he was not authorised to sanction leave. It was for the management to have proved and placed before the labour court the requisite material to substantiate this contention. The entry in the column 'sanction and signature' of Ex. W. 6 shows that Mr. Naiyar has signed it thrice on three occasions and it is now too late in the day to challenge his authority more so when he is an officer of the petitioner's concern and the question who is a sufficient authority is a question of internal management as there are no statutory rules for assigning the duties.

11. Since I am convinced that the finding of fact that the workman concerned was sick during this period and he obtained leave which was duly sanctioned, is correct, it is not necessary to examine the legal aspect of the case on the question where in case a workman remains absent from duty for more than 8 days, automatic termination as contemplated by the standing orders, would tantamount to retrenchment or not. As there was no absence from duty, there is no question of considering the second aspect of the matter.

12. The rerult is that this writ application fails and is hereby dismissed in limine.


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