G.M., B.S.N.L. & ORS. versus MAHESH CHAND

Citation: [2008] 2 S.C.R. 950 · Decided: 15-02-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed

Judgment (excerpt)

1-·" 
[2008] 2 S.C.R. 950 
A 
G.M., B.S.N.L. & ORS. 
•" 
~ 
v. 
MAHESH CHAND 
(Civil Appeal No. 19 of 2007) 
B 
FEBRUARY 15, 2008 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
,.._ 
Industrial Disputes Act, 1947 - s. 25-F - Termination of 
... 
service - Workman claiming continuous work for 240 days in 
c a calendar year - Employer's stand that engagement was on 
temporary basis and that there was no sanctioned post as 
claimed by the workman - Tribunal and High Court directed 
'· 
reinstatement putting the onus to prove 240 days continuous 
work on the employer- On appeal, held: Award is liable to be 
D set aside - Courts below wrongly placed the onus to prove the 
continuous 240 days work on the employer - In the facts of 
the case also, the award unsustainable - Evidence - Onus of 
>-- -f 
proof 
Respondent-workman made a grievance that his 
E services were illegally terminated, without compliance of 
s. 25-F of Industrial disputes Act, 1947, as he had 
continuously been in service from 1987 to 1998; and that 
[Y 
he worked for 240 days in a calendar year. Stand of 
appellant-employer was that the respondent was 
j 
F engaged on purely temporary basis. He was engaged 
I 
only for 2 to 3 hours a day on some days; that no post of 
~\.. 
'Safaiwala' was ever created. Industrial Disputes Tribunal 
held his termination illegal holding that he had worked 
for five hours a day. The award was passed directing his 
G re-instatement with continuity of service. Single Judge as 
well as Division Bench of High Court upheld the award. 
Hence the present appeal. 
~ 
Allowing the appeal, the Court 
H 
950 
·-'. 
G.M., B.S.N.L. & ORS. v. MAHESH CHAND 
951 
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HELD: 1.1 On the question whether the respondent A 
had ·worked continuously for 240 days in a calendar year, 
the Tribunal and the High Court have wrongly placed 
the onus on the employer to prove the negative. [Para 4] 
[953-G] 
Range Forest Officer v. S. T. Hadiri1ani 2002 (3) SCC 25; B 
..l 
Essen Deinki v. Rajiv Kumar 2002 (8) SCC 400; Rajasthan 
.. 
State Ganganagar S. Mills Ltd. v. State of Rajasthan and Anr. 
2004 (8) SCC 161; Municipal Corporation, Faridabad v. Siri 
Niwas 2004 (8) SCC 195; M.P Electricity Board v. Hariram c 
2004 (8) SCC 246; Manager, Reserve Bank of India, 
Bangalore v. S. Mani and Ors. 2005(5) SCC 1 O~; Batala 
Cooperative Sugar Mills Ltd. v. Sowaran Singh 2005 (7) 
Supreme 165; Surendranagar District Panchayat v. 
Dehyabhai Amarsingh 2005 (7) Supreme 307; R.M. Yellatti 
v; The Asst. Executive Engineer JT 2005 (9) SC 340; ONGC D 
~ 
...._ 
Ltd. and Anr. v. Shyamal Chandra Bhowmik 2006 (1) SCC 
337 - relied on. 
1.2 The specific stand of the appellants in the 
proceedings before the Tribunal and the High Court was E 
that there is no sanctioned post of Safaiwala. There is no 
finding recorded by the Tribunal or the High Court that 
this stand is incorrect. Further, the respondent is also not 
consistent as to the period for which he worked. At one 
place he said he was working for five hours each day and 
F 
J:T 
other places he had stated that he was working for 8 
hours. On the contrary, the appellant with reference to the 
nature of work done categorically stated that on a part 
· time basis depending on the need and requirement the 
respondent was engaged for 2 to 3 hours periodically. The 
work that was being done by the respondent was also G 
• 
being done by his wife and his mother. Sometimes, no 
order of appointment was admittedly issued to the 
respondent. This fact is mis-conceived. In view of the 
factual scenario of the instant case, the award made by 
the Tribunal as affirmed by Single Judge and the Division H 
~)..--
\ 
952 
SUPREME COURT REPORTS 
[2008) 2 S.C.R. 
.._ 
A Bench of High Court cannot be sustained and is set aside. 
~ 
[Para 11] [958-D, E, F, G] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 19 
of 2007. 
B 
From the Judgment and Order dated 31.08.2005 of the 
t-
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in 
~· 
D.S. Civil Special Appeal No. 789 of 2005. 
.. 
Anupam Lal Das for the Appellants. 
K. Vijayan and Debasis Misra for the Respondent. 
r
c 
I 
The Judgment of the Court was delivered by 
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to 
the judgment of a Division Bench of the Raj~sthan High Court, 
·, 
D Jaipur Bench, dismissing the Special Appeal filed under Section 
18 of the High Court Ordinance Act, 1949 (in short the 'High 
~ 
Court Act'). In the Special Appeal challenge was to t

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