Order
1. Delay condoned.
2. Leave granted.
3. The appellant is an educational institution. The respondent who was working as a daily-wager with the appellant claimed that her services had been illegally terminated on 19-3-2000 by the appellant. The matter was referred to the Labour Court. The Labour Court passed an award holding that the respondent had been able to prove that she was employed with the appellant for 240 days in the calendar year preceding termination of her services and therefore the provisions of Section 25-F of the Industrial Disputes Act, 1947 had been violated because the appellant had not complied with the provisions of that section. The Labour Court based its reasoning primarily on the fact that the appellant had not produced the relevant muster roll for the period in question. However, the appellant had produced certain documents which the appellant claimed was the muster roll but this was rejected by the Labour Court. The appellants' submission that the respondent was in fact working in Boys' Town Public School, Nashik from 1998 to 4-12-2000 was brushed aside by the Labour Court by relying on the statement of the respondent that her daughter worked in the school by accepting employment in the respondent's name. In view of this the Labour Court said it was “probable” that the respondent worked both with the appellant institute as well as with the school. The appellant was therefore directed to reinstate the respondent as a sweeper with continuity of service with effect from March 2000.
4. The appellants preferred a revisional application before the Industrial Court. The Industrial Court scrutinised the documents and came to the conclusion that there was sufficient material before the Court to come to the conclusion: (1) that the respondent was working as a sweeper in the Boys' Town Public School in Nashik between the period 4-9-1998 to 4-12-2000; (2) having regard to this fact it was not necessary to produce the relevant muster roll of the appellant; (3) there was sufficient material on record in the form of documents as well as the oral evidence to show that the respondent had worked off and on since 1991 to 1997 but not at all between 1998 and 1999 with the appellant. This conclusion was drawn on the basis of the contingency vouchers issued to the respondent. According to the Industrial Court these documents were not in dispute. The Industrial Court therefore held that there was no question of compliance with Section 25-F of the Industrial Disputes Act. The revisional application was accordingly allowed and the award of the Labour Court was set aside.
5. A writ petition was preferred by the respondent before the High Court challenging the order of the Industrial Court. The High Court held that there was sufficient proof of the fact that the respondent was employed in the school between 1998 to 2000. The High Court also held that the Industrial Court had worked out the numbers of days during which the respondent served with the appellant on the basis of only a statement which had not been proved. The decision of the Industrial Court was accordingly set aside and the order of the Labour Court affirmed.
6. In the appeal before this Court, the appellants have submitted that it was the admitted case that the respondent was employed in the Boys' School during 1998 to 2000. Reliance has been placed on the letter written by the Principal of the Boys' Town Public School to the effect that the respondent had worked in the school from 1998 to 4-12-2000. Admittedly, the employment in the school had been obtained in the respondent's name. But according to the respondent the duties were being discharged by her daughter.
7. Secondly, it is submitted that the Industrial Court had scrutinised the documents and had come to the conclusion on the basis of the assessment of the documents that the respondent had not worked for 240 days as had been wrongly held by the High Court. In the circumstances it was prayed that the decision of the Industrial Court should be affirmed and the decision of the High Court and the Labour Court be set aside.
8. Learned counsel appearing on behalf of the respondent, however, has submitted that despite specific orders issued by the Labour Court the muster rolls for the period in question had not been produced by the appellant. This would have clearly shown whether the respondent was employed during the period in question with the appellant or not. The appellant having failed to produce the muster roll an adverse inference could be drawn under Section 114 of the Evidence Act.
9. Secondly, it is submitted that the oral evidence of an old employee of the appellant institute had been given. There was no reason to disbelieve the statement of such employee that the respondent had served with the appellant institute continuously right up to 2000 when her services were illegally terminated. Thirdly, it is submitted that the respondent did not in fact work in the Boys' School. Although employment was taken in the respondent's name with the school, the duties were discharged by the respondent's daughter and that the respondent had continued to serve with the appellant.
10. The muster roll is not the only basis for establishing the employment of an employee with the employer. The appellant in this case had produced other documents on the basis of which the Industrial Court came to the conclusion that the appellant's case must be accepted. These documents have neither been considered by the Labour Court nor by the High Court held to be uncreditworthy. They should have therefore been relied upon as genuinely reflecting the factual situation. Besides, the respondent has admitted that she had taken employment with the Boys' Town Public School. Her defence to the charge of taking up employment elsewhere was met by her statement that her daughter was employed in her place instead. The Labour Court accepted this as a “probable” situation without asking for any further corroborative evidence. As far as the oral evidence by the respondent is concerned, the High Court has not relied upon the evidence of such employee in reversing the finding of the Industrial Court. The Industrial Court as a Revisional Court had considered the evidence and came to its conclusion on the basis thereof. The Court under Article 226 in exercise of its jurisdiction should not have interfered with the order unless it was found that the Revisional Court had exercised its jurisdiction improperly. In the circumstances of the case we allow the appeal and set aside the decision of the High Court as well as the Labour Court and affirm the decision of the Industrial Court. No order as to costs.