C.W.P.No.4354 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.4354 of 2009 Date of Decision:- 08.05.2009 Divisional Forest Officer (Territorial) Rohtak ....Petitioner(s) vs. Balwan Singh and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Additional Advocate General, Haryana, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award dated 12.5.2008 (Annexure P-4) passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement on his previous post with continuity of service and 50% back wages from the date of demand notice i.e. 11.3.2002. Counsel for the petitioner contends that the workman has not been able to prove that he has completed more than 240 days in the 12 preceding months prior to the date of termination of his services. He contends that the onus was on the workman to prove the number of days he has put in with the Management in the 12 preceding months, which onus he has failed to discharge. He further contends that the workman's witness who had appeared before the Labour Court has stated that the workman has not completed more than 240 days in any calendar year. He contends that C.W.P.No.4354 of 2009 -2- the same witness when appeared as Management's witness has placed on record the working details as Exhibit M-1 according to which again the workman had not completed 240 days. On this basis, he contends that the finding of the Labour Court with regard to the adverse inference and leading to the violation of Section 25-F of the Industrial Disputes Act, 1947, cannot be sustained and the award deserves to be set aside. No one had put in appearance on behalf of the workman and, therefore, he was proceeded against ex parte vide order dated 29.4.2009 and the case was posted for arguments for today. No one has put in appearance on his behalf today as well. I have heard counsel for the petitioner and have gone through the records of the case. There can be no dispute with regard to the contention raised by the counsel for the petitioner that the onus to prove that the workman had completed more than 240 days in 12 preceding months, lay on the workman himself as he has made an assertion to that effect. There can also not be a dispute to the fact that the records are maintained by the Management and since the workman was a daily wager where the work is of seasonal nature and he was not given any appointment letter nor he has been given the payment slips for the wages he has been paid for. The records being with the Management, the workman had accordingly approached the Labour Court for production of the records which the Labour Court had summoned. WW-2 Ashok Kumar, Range Officer, Office of District Forest Officer, Rohtak, who had appeared along with the records had produced muster rolls Exhibit W-1 and W-2 which showed that the workman had worked with the Management till January, 2001. He, on the basis of the records available with him, had stated that the C.W.P.No.4354 of 2009 -3- workman had not completed more than 240 days in any calendar year. He also admitted that he did not have the entire records since the records relating to several months in different years were also not available. Since the records for several months were not available, the Labour Court had on the basis of the non-production of the complete summoned records, drawn an adverse inference and rightly so, that the records are in the custody of the Management and are maintained by them alone. That being so, the findings as recorded by the Labour Court cannot be said to be without any basis which would call for any interference by this Court. Faced with this situation, counsel for the petitioner contends that since the post on which the workman had been ordered to be reinstated was a public post on which, as per the admitted position, the workman was not appointed in accordance with the statutory rules governing the service and also in view of the fact that the mandate and the Scheme as provided for under Articles 14 and 16 of the Constitution of India having not been complied with, the workman does not have a right of reinstatement. He further contends that the workman has been appointed as a daily wager and, therefore, did not hold the post as a regular employee. In support of his contention, he relies upon the judgments of the Hon'ble Supreme Court in the cases of Ghaziabad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748, Uttranchal Forest Development Corpn. vs. M.C.Joshi, (2007) 2 SCC (L&S) 813, State of M.P. and others vs. Lalit Kumar Verma, (2007) SCC 575. Counsel for the petitioner further submits that at the most, the C.W.P.No.4354 of 2009 -4- respondent-workman would be entitled to compensation for the period he has worked with the petitioner but he cannot be reinstated in service in the light of the judgment of the Hon'ble Supreme Court in the case of District Telecom Manager and others vs. Keshab Dev, 2008 (4) S.C.T.33 and a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788 wherein this Court has held that a daily wage employee, even in case there is non-compliance of the Act and violation of 25-F, 25-G and 25-H, is not entitled to reinstatement on a public post but would be entitled to compensation. In view of the judgments passed by the Hon'ble Supreme Court, in Keshab Dev's case (supra) and the Division Bench of this Court in Ishwar Singh's case (supra), the award dated 12.05.2008 (Annexure P-4) passed by the Industrial Tribunal-cum-Labour Court, Rohtak is hereby set aside. The workman having worked with the petitioner from 1.6.1999 to 31.12.2001 i.e. two and a half years, is held entitled to Rs.25,000/- as compensation to settle the equities between the parties in lieu of reinstatement. Accordingly, this petition is disposed of with a direction to the petitioner to make the payment of compensation of Rs.25,000/- to the respondent-workman within a period of two months from the date of receipt of copy of this order. May 08, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No