R. Haridas v. The Principal General Manager, Telecom, BSNL, Kalathipparambil Road, Ernakulam, and The Central Govt. Industrial Tribunal cum Labour Court, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2014/26TH BHADRA, 1936** ## **OP(LC).No. 1171 of 2011 (O)** **---------------------------AGAINST THE ORDER DATED 28.09.2010 IN ID 27/2007 OF CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, ERNAKULAM** **---------------------** ## **PETITIONER/WORKMAN :** **--------------------------------------** **R.HARIDAS, AGED 36, S/O.RAMACHANDRAN, LAKSHMI BHAVAN, PANDIPARAMBU ROAD, KANNANKULANGARA, THRIPPUNITHURA.** **BY ADVS.SRI.G.D.PANICKER SMT.JEENA JOSEPH** ## **RESPONDENT/MANAGEMENT :** **----------------------------------------------** **1. THE PRINCIPAL GENERAL MANAGER, TELECOM, B.S.N.L., KALATHIPARAMBIL ROAD ERNAKULAM-682016.** ## **2. THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL** **CUM LABOUR COURT, 38/377, A-2 KARITHALA LANE, KARSHAKA ROAD, ERNAKULAM COCHIN-682016.** **R1 BY ADVS. SRI.MATHEWS K.PHILIP, SC SRI.C.S.RAMANATHAN, SC R2 BY ADV. SRI.N.NAGARESH, ASGI** **THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON 17-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **OP(LC).No. 1171 of 2011 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : TRUE PHOTOCOPY OF THE JUDGMENT IN WPC NO. 16475/2003 DATED 29.5.2003. EXT.P2 TRUE PHOTOCOPY OFO THE REPRESENTATION DATED 22/5/2002. EXT.P3 TRUE PHOTOCOPY OF THE JUDGMENT IN WP(C) NO. 23722/2003 DATED 27.6.2006. EXT.P4 TRUE PHOTOCOPY OF THE EXTRACT OF THE RULE(D) UNDER ITEM XIII(I) OF FINANCIAL HAND BOOK VOL-I. EXT.P5 TRUE PHOTOCOPY OF THE REGISTER OF DESTRUCTION OF RECORDS AS PER ITEM 33 OF ANNEXURE A IN P & T FINANCIAL HAND BOOK VOL. EXT.P6 TRUE PHOTOCOPY OF THE AFFIDAVIT AND PETITION IN ID NO. 27/2007 IN IA NO. 31/2007 DATED 17/12/2008. EXT.P7 TRUE PHOTOCOPY OF THE REPLY SUBMITTED BY THE MANAGEMENT IN ID NO. 27/2007 DATED 2/4/2009.** **EXT.P8 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT DATED 18/1/2008.** **EXT.P9 TRUE PHOTOCOPY OF LABOUR ENROLMENT CARD NO. 0292 IN RESPECT OF ONE M.K. SURENDRAN FOR THE PERIOD 1.2.87 TO 30.6.89.** **EXT.P10 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE ASST. ENGINEER OF THE RESPONDENT/MANAGEMENT ISSUED TO SURENDRAN SHOWING THE NUMBER OF DAYS WORKED FROM 23.1.84 TO 13.6.84.** **EXT.P11 TRUE PHOTOCOPY OF THE CERTIFIED COPY BY THE ASST. ENGINEER FOR THE PERIOD FROM 19.8.1985 TO 31.8.1987.** **(Contd...)** **OP(LC).No. 1171 of 2011 (O)** |**EXT.P12**|**TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY**| |---|---| ||**DIVISIONAL ENGINEER DATED 01/04/2002.**| |**EXT.P13**|**TRUE PHOTOCOPY OF THE DOT ORDER NO. 269-94/98-STN-II**| ||**DATED 29-9-2000.**| |**EXT.P14**|**TRUE PHOTOCOPY OF THE DOT LETTER NO. 269-10/89-STN-II**| ||**DATED 14-8-1998.**| |**EXT.P15**|**TRUE PHOTOCOPY OF THE AWARD IN ID NO. 27/2007 DATED**| ||**28/09/2010.**| |**EXT.P16 IN C.M.A**|**TRUE PHOTOCOPY OF THE QUESTION UNDER THE RIGHT TO**| |**NO. 3991/2011**|**INFORMATION ACT DATED 4/4/2011.**| |**EXT.P16**|**PHOTOCOPY OF THE RELEVANT PAGE OF HIS SSLC TO SHOW**| ||**THAT HIS DATE OF BIRTH IS 20/4/1974.**| |**EXT.P16(a)**|**TRUE PHOTOCOPY OF THE REPLY GIVEN UNDER THE RIGHT**| |**IN C.M.A NO.**|**TO INFORMATION ACT DATED 25/4/2011.**| |**3991/2011**|| |**EXT.P17 SERIES.**|**PHOTOCOPY OF THE ACE 2, WHICH WERE PRODUCED**| ||**BEFORE THE COURT BELOW FOR EASY REFERENCE OF THIS**| ||**HONOURABLE COURT.**| |**EXT.P17 IN C.M.A**|**TRUE PHOTOCOPY OF THE QUESTION UNDER THE RIGHT TO**| |**NO. 3991/2011**|**INFORMATION ACT DATED 14/6/2011.**| |**EXT.P17(a)**|**TRUE PHOTOCOPY OF THE REPLY GIVEN UNDER THE RIGHT**| |**IN C.M.A NO.**|**TO INFORMATION ACT DATED 6/7/2011.**| |**3991/2011**|| |**EXT.P18 IN C.M.A**|**TRUE PHOTOCOPY OF THE MEMO NO. ES/21-4/2000/D DATED**| |**NO. 3991/2011**|**AT TVM THE 7-2-2001.**| |**EXT. P18**|**PHOTOCOPY OF THE ACE 2 REGISTER WITH REMARKS OF**| ||**C. DURGADAS, 10/5/2013.**| **(Contd...)** ## **OP(LC).No. 1171 of 2011 (O)** **EXT.R1(a) : COPY OF THE ORDER DATED 14/8/1984. EXT.R1(b) COPY OF THE LETTER DATED 15/2/1985. EXT.R1(c) COPY OF THE ORDER DATED 22/6/1988. EXT.R1(d) COPY OF THE ORDER DATED 17/12/1993. EXT.R1(e) COPY OF THE OM DATED 12/2/99. EXT.R1(f) COPY OF THE OM DATED 15/6/1999. EXT.R1(g) COPY OF THE AGREEMENT ENTERED INTO BETWEEN PETITIONER AND THE RESPONDENT ON 30/4/2002. EXT.R1(h) COPY OF THE AGREEMENT DATED 1/11/2004. EXT.R1(i) COPY OF THE APPLICATION DATED 3/8/1991. EXT.R1(j) PHOTOCOPY OF THE APPLICATION SUBMITTED IN 2002 BY THE PETITIONER.** **//TRUE COPY//** **P.A. TO JUDGE Mn** ## **K. VINOD CHANDRAN, J. ===================== O.P (L.C) No. 1171 of 2011 ====================== Dated this the 17[th] day of September, 2014** ## **J U D G M E N T** The petitioner is aggrieved by Ext.P2, award of the Industrial Tribunal, which declined to interfere with the alleged termination of service of the workman, the petitioner herein. The Industrial Tribunal rejected the claim of the petitioner that he was employed with the respondent Bharath Sanchar Nigam Limited (herein after referred to as BSNL), from 1991 onwards. According to the Tribunal, the evidence reveals that, the petitioner was only employed on a contractual basis. The petitioner claimed that he had been employed as part-time Peon/Gardner from 03.08.1991 onwards and hence contended that he was entitled to regularization. 2. The petitioner also urged that similar persons, so employed were regularized in the employment of the BSNL. The claim was made at the first instance in a Writ Petition, O.P (L.C) No. 1171 of 2011 **2** filed before this Court, which was disposed of by Ext.P1 judgment. The petitioner's contention, as is seen from Ext.P1 was that the petitioner is a part-time employee, working in the BSNL and that the Rules permit conversion of the said post to a full time post. This Court without entering into the merits, disposed of the Writ Petition directing consideration of the claim put forth by the petitioner, by the appropriate authority. 3. The representation made, pursuant to Ext.P1, was declined by the BSNL, which order is not seen produced herein. However, the petitioner challenged the same in an earlier Writ Petition numbered as W.P.(C) No.23722 of 2003. The petitioner, in the said Writ Petition, sought for production of the records by the BSNL; which according to the petitioner would prove that the petitioner had been working as a casual labourer and had been paid wages, as per the bills drawn by the BSNL. Even at that point, the BSNL submitted before this Court that the bills for the period prior to the year 2000 have already been destroyed, O.P (L.C) No. 1171 of 2011 **3** since the Rules applicable for destruction of records, mandate such bills to be maintained only for a period of three years. 4. In any event, this Court having declined interference under Article 226 of the Constitution of India, left open the remedies available to the petitioner. It was pursuant to such reservation of liberties that the petitioner approached the appropriate Government and the dispute regarding the legality and justification of termination of service of the petitioner was referred to the Industrial Tribunal. The workman produced 26 documents as also examined himself and two retired employees of the BSNL. On behalf of the Management, one witness was examined and 13 documents were marked. 5. The learned Counsel for the petitioner submits that the order of the Industrial Tribunal is bad for the reason of the documents having not been properly examined by the Tribunal. It is also urged that the petitioner was not granted an effective opportunity to prove the documents O.P (L.C) No. 1171 of 2011 **4** produced; in addition to the 26 documents marked; produced herein as Ext.P15. The learned Counsel would also contend that the interrogatories filed by the petitioner were replied to in a casual manner. The non production of documents should normally have led to an adverse inference drawn, against the Management, is the argument. The learned Counsel would rely on the judgments of the Hon'ble Supreme Court reported in **S. Kirpal Singh Duggal** v. **Municipal Board, Ghaziabad [AIR 1968 SC 1416], Bhilwara Dugdh Utpadak Sahakari S. Ltd.** v. **Vinod Kumar Sharma [AIR 2011 SC 3546], Secretary, Haryana State Electricity Board** v. **Suresh and other [AIR 1999 SC 1160], Hussainbhai, Calicut and Alath Factory Thozhilali Union, Calicut and others [1978 (2) LLJ 397], and Gopal Krishnaji Ketkar** v. **Mohamed Haji Latif and others [AIR 1968 SC 1413]** . 6. The learned Counsel for the respondent, however, points out that the interrogatories were answered by an affidavit submitting that the records were destroyed. The O.P (L.C) No. 1171 of 2011 **5** “Rules Regarding the Destruction of Accounts and Records”, mandated maintenance of bills, only for a period of three years. The very contention with respect to adverse inference is advanced on the premise that the 'Register of destruction of records' had to be maintained permanently and despite the interrogatory, the BSNL failed to produce it on the ground that it is not traceable. 7. Primarily, it is to be noticed that this Court is not sitting in appeal from the order of the Industrial Tribunal and a roving enquiry into the evidence or a re-appreciation of the same is not permissible. The Industrial Tribunal has found that the claim of the petitioner rested on the contention that he was appointed as a “Part-Time Peon/Gardner” and “Care Taker” of the Inspection Quarters of BSNL, at Ernakulam. Such appointment was claimed from the year 1991 onwards. However, no appointment order was produced by the petitioner, which would indicate that he had been appointed to the post as claimed by him on a part-time basis. The consistent stand of the BSNL before O.P (L.C) No. 1171 of 2011 **6** this Court, in the earlier Writ Petitions, as also before the Industrial Tribunal, was that the petitioner had been working on a contract basis under various contractors and for a certain period, having taken up the contract by himself. 8. The 'imprest' bill produced by the petitioner as W7 and W8 were seen issued in the name of Hari and Company and Lakshmi and Company respectively, and not to the petitioner/workman. The said documents produced by the petitioner himself, lend credence to the contention of the BSNL that the petitioner/worker was not appointed as a part-time worker and was only working under various contractors. The documents produced by the petitioner evidenced payment made to a firm and not to an individual and especially not to the petitioner. The petitioner had also produced before the Labour Court two casual employment cards, issued in the name of two workmen, as W3 and W6. Hence any casual employee appointed to the BSNL, even according to the petitioner, was issued with “casual labour O.P (L.C) No. 1171 of 2011 **7** employment card”, which however, in the case of the petitioner, admittedly he did not possess. The various orders produced, regarding conversion of part-time casual employees into full time staff, hence would not be applicable, in the case of the petitioner/workman, since there is no discernible casual employment of the petitioner with the BSNL. While the petitioner produced two 'casual employment cards' issued to allegedly similarly placed persons; the petitioner admitted that he was not issued with such an order. 9. The learned Tribunal also considered the non production of documents by the BSNL to be irrelevant, insofar as the petitioner's claim itself, in a document produced by the petitioner, was that he had been employed from the year 1998 onwards on a contract basis. The said document was produced as Ext.P3 in W.P.(C) 23722 of 2003 and is produced herein as Ext.R1(j). Ext.R1(j) is an application, admittedly made by the petitioner for recruitment of sports persons in the BSNL Kerala Telecom O.P (L.C) No. 1171 of 2011 **8** Circle. In the annexure to such application, the petitioner had declared so: “Now I am working as “Care Taker” on contract Basis at Telephone Exchange S.R.M, Inspection Quarters Ernakulam from 1998 to till date”. 10. This belies the entire claim of the petitioner based on which, the proceedings were initiated. While the learned Counsel for the BSNL would contend that the reliance placed by the Tribunal on the said declaration is perfectly in order, the learned Counsel for the petitioner would dispute the same on the ground that, it only indicates the nature of the employment of the petitioner at that point of time ie., on the date of application and does not infact refer to any earlier employment with the BSNL. This Court cannot countenance such contention raised by the petitioner/workman, since the specific declaration made is that he is working as 'Care Taker' on contract basis at Telephone Exchange S.R.M, Inspection Quarters at Ernakulam from 1998 till date of application. Hence obviously there was no continuous part-time employment as O.P (L.C) No. 1171 of 2011 **9** contented by the petitioner from 1991 onwards. The petitioner's admission is that he had been employed on contract basis from 1998 onwards. There is no reason why the employment should be related back to 1991, that too as a casual employee or as a 'part-time employee'. The employment, claimed, is not of a casual nature or of a parttime character; but 'contractual'. 11. In such circumstance, the petitioner's contention that the petitioner had been employed from 1991 onwards as a 'part-time casual employee' would stand rejected. On the petitioners own showing; from 1998 onwards, the petitioner is working only on a contract basis. In such circumstance, this Court cannot fault the findings of the Tribunal that, the production of documents as sought for in the interrogatories would not be necessary. 12. The claim of the petitioner to persuade this Court to draw an adverse inference also would pale into insignificance in the context of the workmen having not proved his case and also in the teeth of the workmen's O.P (L.C) No. 1171 of 2011 **10** admission, otherwise. The Tribunal, having examined the matter in detail and having considered the evidence in toto has declined the prayer of the petitioner, on the petitioners own showing. 13. **S. Kirpal Singh Duggal** (supra) was a case in which a claim was made to a particular property as belonging to a public trust, while simultaneously objecting to the status of a public trust. Both questions were answered against the appellant. The attentive contention raised by the appellant, was that even if the issue of the Dargha being declared to be a public trust, is found against him; then the separate accounts maintained for the Dargha properties and the particular property would indicate that the subject property did not belong to the trust. No accounts were produced. The failure to produce the documents on which the claim was found to be sufficient case to draw adverse inference. 14. Herein, the Court found that claim of the petitioner/workman being not proved, there can be no O.P (L.C) No. 1171 of 2011 **11** adverse inference against the respondent. The burden of proof squarely lies on the person, who initiates the litigation and the onus shifts only on such burden being discharged. A claim which remains unsubstantiated cannot be revived merely adopting the principles on which adverse inference is drawn. This Court does not find any reason, compelling enough, to interfere with the award passed by the Tribunal, on that count. 15. **Bhilwara Dugdh Utpadak Sahakari S. Ltd.** (supra) was a case in which, the Hon'ble Supreme Court found that the discussion of the facts by the Labour Court, placed it beyond any pale of doubt, that the employer in that case had resorted to subterfuge, in styling the employees to be working under a contractor. **Hussainbhai, Calicut** (supra) was also a case of a manufacturer employing workers in the manufacturing activity and then denying direct relationship with them; alleging that to be on the contractors. The test laid down as to persons being employed in manufacture of goods; being O.P (L.C) No. 1171 of 2011 **12** the employees of the manufacturer, who deals in those goods will not be applicable here. **Haryana State Electricity Board** (supra) also affirmed the findings of the Labour Court, upheld by the High Court too. The engagement was found to be not of a seasonal nature, but of one having a statutory compulsion and the principal employer retaining the supervision and administration with itself. 16. What is apposite for this case is the reiteration of the scope of jurisdiction of this Court, under Article 226, in paragraph 15 of **Haryana State Electricity Board** (supra) which is as follows: “We also record our concurrence to the observations of the High Court that finding of fact arrived at by the Labour Court cannot otherwise be interfered with while exercising powers under Article 226 of the Constitution, unless the same is otherwise perverse or there is existing an error apparent on the face of the record”. The Labour Court herein found that on the petitioner's own showing he was employed under a contract. 17. The learned Counsel for the petitioner would then contend that in fact Ext.P17 documents would indicate that O.P (L.C) No. 1171 of 2011 **13** the petitioner had been employed form 1991 onwards and that the same, though produced before the Tribunal, could not be marked, since the author of such document was abroad. It is also submitted that, now, the author has returned to India and has also issued a certificate to the petitioner that the said person has paid such amounts to the petitioner as indicated in Ext.P17 and P18 series of documents. It is to be primarily noticed that Exts. P17 and P18 are photo copies and the certificate issued by a retired employee, cannot be taken into account, for ordering a remand, when this Court does not perceive any perversity or even non-consideration of relevant materials. 18. The evidence led before the Labour Court was more in the nature of deposition of retired employees, which cannot inspire the absolute confidence of any Court just as a serving employee's evidence against a litigating employee. On the petitioners own showing the petitioner had been working on a contract basis from 1998 onwards, which would belie the contention of the petitioner that the O.P (L.C) No. 1171 of 2011 **14** petitioner was a part time casual employee from 1991 onwards, till the alleged termination in 2003. The claim raised is negatived by the petitioner's own admission. The Original Petition is devoid of merits and the same is dismissed leaving the parties to suffer their respective costs. **K. VINOD CHANDRAN, JUDGE** SB