Case Note & Summary
The present Letters Patent Appeal was filed by the Nagpur District Central Co-operative Bank Ltd. (the appellant) challenging the judgment of a learned Single Judge of the Bombay High Court dated 4 May 2007. The Single Judge had allowed the complaint of the respondent-employee, Prashant Ashokrao Salunke, under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act), thereby reversing the concurrent findings of the Labour Court and the Industrial Court which had dismissed the complaint. The employee alleged that he was appointed as a daily wage clerk on 21 February 1994 and his services were orally terminated on 13/14 January 1999 without compliance with Sections 25F and 25G of the Industrial Disputes Act, 1947 (ID Act). He sought reinstatement with continuity of service and back wages. The Bank denied the claim, asserting that the employee had not completed 240 days of continuous service in the preceding year and that his appointment was purely temporary. The Labour Court dismissed the complaint, holding that the employee failed to prove that he had worked for 240 days. The Industrial Court upheld this finding. However, the learned Single Judge reversed the decision, holding that the Bank had not produced the attendance register and therefore an adverse inference should be drawn against it. The Division Bench of the High Court, comprising Justices B.R. Gavai and P.N. Deshmukh, allowed the appeal. The court held that the burden of proof lay on the employee to establish that he had worked for 240 days in the preceding year. The employee had not produced any documentary evidence such as salary slips or attendance records, and his oral testimony was insufficient. The court noted that the Bank had produced the muster roll for the relevant period, which showed that the employee had not worked for 240 days. The Division Bench concluded that the learned Single Judge had erred in drawing an adverse inference against the Bank without giving it an opportunity to produce the attendance register. The court set aside the Single Judge's order and restored the orders of the Labour Court and Industrial Court, thereby dismissing the employee's complaint.
Headnote
A) Industrial Law - Unfair Labour Practice - Burden of Proof - Section 28 of MRTU & PULP Act, 1971 read with Section 25F of Industrial Disputes Act, 1947 - The employee must prove that he had worked for 240 days in the preceding year to claim protection against retrenchment - The court held that the employee failed to discharge this burden as the attendance register was not produced and the employee's own evidence was insufficient - Held that the Labour Court and Industrial Court erred in granting reinstatement without proper proof (Paras 1-10). B) Industrial Law - Retrenchment - Conditions Precedent - Section 25F of Industrial Disputes Act, 1947 - For a valid retrenchment, the employer must give one month's notice or wages in lieu thereof, and pay retrenchment compensation - However, these conditions apply only if the employee has completed 240 days of continuous service - In the absence of such proof, the termination is not rendered illegal - Held that the learned Single Judge's order setting aside the Labour Court's finding was erroneous (Paras 5-10).
Issue of Consideration
Whether the respondent-employee had completed 240 days of continuous service in the preceding year so as to attract the provisions of Section 25F of the Industrial Disputes Act, 1947, and whether the termination was in violation of the said provisions.
Final Decision
The appeal is allowed. The judgment and order of the learned Single Judge dated 4.5.2007 is set aside. The orders of the Labour Court and Industrial Court dismissing the complaint are restored.
Law Points
- Burden of proof on employee to establish continuous service of 240 days
- Daily wager not entitled to automatic reinstatement
- Section 25F ID Act conditions must be satisfied
- MRTU & PULP Act Section 28 complaint requires proof of unfair labour practice
