CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 20, 2010 State of Haryana .....Petitioner VERSUS Meghraj and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Preeti Khanna, Advocate, for the petitioner. Mr. R. S. Ahluwalia, Advocate, for respondent No.1. **** RANJIT SINGH, J. State of Haryana has filed this writ petition to impugn the award dated 2.11.2001, whereby the Labour Court had directed the reinstatement of workman Meghraj (respondent No.1) with continuity of service and 50% back wages. The writ petition was dismissed by a Division Bench of this Court on 29.7.2002, by observing that:- “ The relevant record had not been produced leading to an inference against the employer. Moreover, only 50% back wages had been granted to the workman with CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 2 }: reinstatement. We, thus, find no infirmity in the impugned award. Dismissed.” The State had filed a Special Leave Petition against this judgement passed by the Division Bench and the Hon'ble Supreme Court has allowed the appeal and has remitted the case to this Court for fresh consideration and disposal in accordance with law. The Hon'ble Supreme Court has viewed that the finding by the Labour Court that it was incumbent upon the management to establish that the workman had not worked for more than 240 days was legally unsound being prima-facie against the decision in the cases of Range Forest Officer Vs. S.T.Hadimani, 2002 (3) SCC 25 and Rajasthan State Ganganagar S.Mills Ltd. Vs. State of Rajasthan & Ors., 2004 (8) SCC 161. The Hon'ble Supreme Court accordingly set-aside the impugned order passed by this Court and remitted the case to the Court for fresh consideration and disposal of the same in accordance with law. The relevant observations made by the Hon'ble Supreme Court are as under:- “It appears from the order of the Presiding Officer, Industrial Tribunal-cum-Labour Court, that the appellant questioned the sustainability of certain claims of the workman about his having worked for a particular period and submitted that it was not so. It appears that the Presiding Officer was of the view that it is incumbent upon the management to establish that the workman had not worked for more than 240 days. This view is prima-facie against the decisions of this Court in Range Forest CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 3 }: Officer Vs. S.T.Hadimani, 2002 (3) SCC 25 and Rajasthan State Ganganagar S.Mills Ltd. Vs. State of Rajasthan & Ors., 2004 (8) SCC 161. The impugned order is, therefore, set aside and the matter is remitted to the High Court for fresh consideration and disposal in accordance with law. The appeal is allowed. No costs.” The counsel appearing for the petitioner has made pointed reference to the cases of Range Forest Officer (supra) and Rajasthan State Ganganagar S.Mills Ltd. (Supra), where it is observed that onus and manner of proof would be on the claimant to lead evidence to show that he had in fact worked for 240 days in a year preceding his termination. It is further observed that filing of an affidavit is only his own statement in his favour and can not be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that the workman had in fact worked for 240 days in a year. Proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period, is considered essential and, thus, required to be produced by the workman. Similarly, it is observed in Rajasthan State Ganganagar S.Mills Ltd. (supra) that it is for the claimant workman to show that he had in fact worked for 240 days in a year preceding his termination and mere statement in this regard would not be enough. The relevant observations made in this regard by the Hon'ble Supreme Court are as under:- “It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 4 }: was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked upto 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T.Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed.” It is, therefore, now required to be seen if the respondent- workman had succeeded in establishing that he had worked for more than 240 days in 12 months preceding his termination or not on the basis of evidence that was led before the Labour Court. The respondent-workman had served a demand notice dated 14.11.1996 and filed an amended claim statement on 7.8.1998 pursuant to the reference of the industrial dispute relating to his termination, which was made in the year 1997. As per the averment, the workman was appointed as Daily Paid worker w.e.f. 1.1.1996 and he had worked in Sub Division No.II, Division No.1 at Karnal from 1.1.1996 to 31.5.1996. Thereafter the workman had worked in Sub Division No.1 from 1.6.1996 to 31.8.1996 under the control of Sh.Bhalla. From 1.9.1996 to 2.11.1996, the workman worked in Sub CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 5 }: Division No.2 and his services were terminated w.e.f. 3.11.1996. The workman accordingly pleaded that he had worked for more than 240 days and his services were terminated without any notice or retrenchment compensation. His plea further was that management had retained junior workman in the service and the work was still existing with the Department, where new persons were being appointed. In the written statement filed, the management raised a preliminary objection that claim was not legally maintainable. It was pleaded that the workman was engaged against a specific job and reference was bad on account of non-joinder of Chief Administrator, HUDA. Significantly, it was admitted that the workman had performed his job in Sub Division No.2 w.e.f. 1.1.1996 to 31.5.1996 and the wages were paid to the workman for 117 days. There was no specific denial made to the averments made in the statement of claim that the workman had rendered service in Sub Division No.2 upto 2.11.1996. Rather, it was pleaded that the days for which the respondent- workman had worked in Sub Division No.2 can not be counted for the purpose of counting 240 days service. It was further pleaded that on completion of a job, the services of the workman were disengaged as not required. The Labour Court had placed burden of proving the issue of illegal termination upon the parties. The workman appeared and gave evidence in support of his claim, showing that he was engaged w.e.f. 1.1.1996 on a monthly wages of Rs.1600/-. He had worked upto 31.5.1996 and thereafter was sent to Kurukshetra, where he worked from 1.6.1996 yo 31.8.1996. The list of working days at CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 6 }: Kurukshetra was produced and was marked. The respondent- workman had again been sent back to Karnal where he worked from 1.9.1996 to 2.11.1996 and thereafter he was terminated w.e.f. 3.11.1996. As per the evidence, the workman had been transferred from Kurukshetra by Xen and was called to Karnal by the Xen concerned. The Executive Engineer of Karnal and Kurukshetra Division was the same. On the other hand, the management examined J.E as a witness, who had produced the record kept in his office from 1.1.1996 to 8.5.1996. This witness also stated that the workman had not been appointed through Employment Exchange and also was not appointed against the sanctioned post. The witness also produced the muster rolls, copies of which are exhibits M1 to M5. As per the evidence, the workman had worked from 5.8.1996 to 13.9.1996. The copy of this muster roll is exhibit M6. The witness has also brought the record of other sub divisions which was produced as exhibits M7 to M9. On this basis, the witness deposed that the workman had not worked for 240 days in their department. A perusal of the impugned award would show that the Labour Court apparently did not place burden on the management to prove that the workman had not worked for 240 days, as is being urged. The burden to prove this fact was on the workman, which he discharged by giving his evidence. The respondents did not deny the fact that the workman had worked from 1.1.1996 to 2.11.1996. Rather, the muster rolls were produced and marked from Exhibit M1 to M9. However, the petitioner-management did not produce the complete record for the period from 1.1.1996 to 2.11.1996. The record of the muster rolls was in possession of the management. It CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 7 }: was for the management to produce this record to show that the workman had not worked for this period. This record was withheld. The adverse inference has been drawn for withholding this record. It is not a case where any burden of proof was put on the management to show that the workman had not worked for 240 days. A reference was made to the case of Hans Raj Vs. Municipal Council, Sangrur, 2001 (3) RSJ 388, to point out that duty was upon the management to produce the documents, these being in the possession of the management. By giving his evidence on oath, the initial burden on the workman stood discharged to an extent. It would have been a different matter, if the management had taken up the stand of a complete denial. The petitioner management has not denied that the respondent-workman had worked upto 2.11.1996. The plea is that respondent-workman had worked in a different Sub Division and this service rendered in different Division is not jointly countable for computing the period of 240 days service. The fact that Kurukshetra and Karnal Sub Divisions were under the same Executive Engineer is also not denied in any manner. From the record, it may emerge that the petitioner-management was only urging that daily wagers are not transferred. The observation of the Labour Court in this regard, especially in the background of the evidence led by both the parties, may be noticed which is as under:- “.....on the other hand the management witness has admitted the service period from 1.1.1996 to 8.5.1996 in Karnal on daily wages and from 5.8.1996 to 13.9.1996 and has also tendered copy of the muster roll for the said period. This witness has not tendered the service record CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 8 }: for remaining period from 1.9.1996 to 2.11.1996. Therefore, in view of observations made by our Hon'ble High Court reported in 2001 (3) R.S.J. 388 (supra) adverse inference is drawn against the management due to non production of the service record of the workman from 1.9.1996 to 2.11.1996. Therefore, under these circumstances from the statement of the workman as well as from the list of working days Mark A it stands record on file that the workman has worked for more than 240 days in 12 months because the Xen of the Kurukshetra and Karnal Division admittedly is the same.” From the observations as noted above, it would also emerge that the Labour Court never put burden on the management to prove that the respondent-workman had not worked for 240 days. The adverse inference was drawn against the management for not producing an evidence, which was in their possession. Section 114 of the Indian Evidence Act provides in clear terms that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of particular case. As per illustration (g) to Section 114, the Court may presume that the evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it. It is to be noticed that the presumption of facts are inferences from certain facts drawn from the experience and observation of the human mind, springs of human action, the usages and habits of society and ordinary course CIVIL WRIT PETITION NO.11522 OF 2002 (O&M) :{ 9 }: of human affairs. The presumption of facts merely effects the burden of proof whereas presumption of law is mandatory and goes as far as to shift the legal burden of proof so that in the absence of evidence sufficient to rebut it on the balance of probability, a verdict must be directed in favour of presumption. The presumption of facts as raised in various clauses of Section 114 of the Indian Evidence Act is itself not evidence but only makes prima facie case for a party in whose favour it exists. It is a rule concerning evidence. It is an obligation on the opposite party to rebut it by coming forward with evidence. It is this inference, which was drawn against the petitioner-management and not that any burden was shifted. Even otherwise, to an extent burden would also stand shifted in view of the evidence that was led by the parties and, thus, the Labour Court was justified in taking the view, which it adopted. It is not such a case where it can be urged that burden of proof was wrongly shifted on to the petitioner- management to plead violation of law laid down in Range Forest Officer (Supra) and Rajasthan State Ganganagar S.Mills Ltd. (Supra). The writ petition, therefore, is without merit and is dismissed. 20.9.2010 ( RANJIT SINGH ) khurmi JUDGE