IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPAs No.63 & 68 of 2007 Date of decision : October 22, 2008 LPA No.63 of 2007 P.S.E.B. & others …Appellants. Versus Parkash Chand & another …Respondents. LPA No.68 of 2007 Parkash Chand …Appellant. Versus P.S.E.B. & others …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant(s) : Mr. Anand Sharma, Advocate (in LPA No.63 of 2007). None in LPA No.68 of 2007. For the Respondents : None in LPA No.63 of 2007. Mr. Anand Sharma, Advocate, in LPA No.68 of 2007. Surjit Singh, Judge (Oral) These two appeals are being disposed of by a common judgment, because the judgment, which has been challenged by way of these appeals, is the same. It is the judgment dated 24th May, 2007, passed by learned Single Judge, in Civil Writ Petition No.82 of 2004, titled as Parkash Chand versus P.S.E.B. and others. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Relevant facts are that Parkash Chand, appellant in LPA No.68 of 2007 and hereinafter referred to as workman, approached the State Government for making a reference to the Labour Court, with respect to his alleged dispute of illegal termination of service with effect from 23rd September, 1978. He claimed that he had been engaged as T-Mate in the year 1973 by the Punjab State Electricity Board, Shanan, Jogindernagar, appellant in LPA No.63 of 2007 and hereinafter called respondent, and that from 1st October, 1977 to 22nd September, 1978, he worked as Carpenter with the respondent. He alleged that his services were terminated with effect from 23rd September, 1978, without complying with the provisions of Section 25(F) of the Industrial Disputes Act, 1947. The State Government made a reference to the Labour Court, in the following terms: “Whether the termination of Shri Parkash Chand by the Resident Engineer, Punjab State Electricity Board, Shanan Power House, Jogindernagar, Distt. Mandi (HP) w.e.f. 22.9.1978 without any notice or compliance of Section 25(F) of the Industrial Disputes Act, 1947 and without enquiry is legal and justified, if not, to what relief and service benefits, Shri Parkash Chand is entitled to?” Workman then filed a formal application before the Labour Court, reiterating the aforesaid allegations. 3. Respondent filed reply, raising preliminary objections therein and in addition denying the facts and the allegations made in the petition. It was alleged that the reference was barred by limitation. Also, it was alleged that there never existed relationship of workman and employer …3… between the parties and so the Labour Court did not have the jurisdiction. On merits, it was denied that the workman ever worked under the respondent or that his services were illegally terminated with effect from 23rd September, 1978, as alleged. 4. Labour Court framed the following issues: “1. Whether the reference is barred by limitation? OPR. 2. Whether there never existed relationship or status of a Industrial worker and employer between the parties, as alleged? OPR. 3. Whether the termination of the petitioner from the services w.e.f. 22.9.1978 is illegal, uncalled for and not in accordance with law? OPP. 4. Relief.” 5. Parties were called upon to adduce evidence. Workman appeared as his own witness and also tendered in evidence certain representations made by him to the respondent and Photostat copy an experience certificate, purportedly issued by a Sub Divisional Officer of the respondent. Respondent examined its Resident Engineer, posted at Shanan, Jogindernagar, who testified that the workman had never been engaged by the respondent. Labour Court returned findings on all the aforesaid issues against the workman and answered the reference in the negative. 6. Workman filed writ petition, seeking the setting aside of the award of Labour Court and relief of reinstatement. Learned Single Judge has held that issue of delay could not have been gone into by the Labour Court once reference had been made by the State Government. It has also been held …4… by the learned Single Judge that the evidence adduced during enquiry before the Labour Court proves the plea of the workman that he had worked as Carpenter for 240 days from 1st October, 1977 to 22nd September, 1978 and that his services had been illegally terminated. After arriving at the aforesaid findings, learned Single Judge observed that since the workman had approached the authorities after long lapse of time, he was not entitled to the relief of reinstatement, though he was entitled to compensatory relief, in terms of various judgments of the apex Court to the effect that where a workman remains out of job for quite long a time he can be compensated by award of a lump sum amount of money. With these findings and observations, learned Single Judge awarded a sum of Rs.50,000/-, as compensation. 7. Workman is still not satisfied. He seeks reinstatement and so he has preferred this appeal. Respondent Punjab State Electricity Board is also aggrieved by the judgment of the learned Single Judge. It is alleged that the evidence on record does not prove the allegation of the workman. Also, it is alleged that the claim being highly belated could not have been entertained. 8. We have heard the learned counsel for the Punjab State Electricity Board. Nobody has put in appearance on behalf of workman Parkash Chand. 9. There are a number of judgments by the Hon’ble Supreme Court, in which workman’s claim had been entertained by the Labour Courts, after lapse of time and the …5… relief was granted. Hon’ble Supreme Court did not interfere with the awards of the Labour Courts or the judgments passed by the High Courts in writ petitions challenging the awards of the Labour Court in such cases. Therefore, we do not think the judgment of the learned Single Judge can be assailed, on the ground of delay in approaching the Government for making reference to the Labour Court. However, we do find a great deal of merit in the submission that the evidence adduced before the Labour Court does not prove workman’s plea that he had been engaged by the Punjab State Electricity Board, as Carpenter, from 1st October, 1977 to 22nd September, 1978 and then his services were terminated without resort to Section 25(F) of the Industrial Disputes Act. 10. It is well settled that burden of proof is always on the person claiming to be a workman that he was in fact a workman. In this context, we may refer to some of the judgments of the Hon’ble Supreme Court. Citations are: Manager, Reserve Bank of India, Bangalore versus S. Mani and others, (2005) 5 SCC 100; Range Forest Officer versus S.T. Hadimani, (2002) 3 SCC 25; Municipal Corpn., Faridabad versus Siri Niwas, (2004) 8 SCC 195; and M.P. Electricity Board versus Hariram, (2004) 8 SCC 246. 11. In the present case, the workman cannot be said to have discharged the initial burden of proof, because the evidence, which he led consisted only his self-serving statement, which he made as PW-1 and Photostat copy of an experience certificate, Ex. PE, which he tendered claiming it to …6… be one of his six representations made by him to the respondent. This Photostat copy of the alleged experience certificate was not proved according to law. Workman has offered no explanation in not producing the original certificate itself. Photostat copy could not have been taken on record, unless some explanation was there for the inability to produce the original certificate. Also, we find that this Photostat copy of certificate was produced by the workman and exhibit marked by the Labour Court behind the back of the respondent. Record of the Labour Court shows that on the date when this Photostat copy was tendered in evidence, respondent was ex-parte. Therefore, observation made by the learned Single Judge that the copy was exhibited, without any objection from the side of the respondent does not come to the rescue of the workman. 12. Abovestated position apart, even though the respondent could not produce the record before the learned Single Judge, when called upon to do so, an affidavit was filed by the Resident Engineer, per which pay rolls for the period from September 1977 to October 1978 are available with the respondent and the name of the workman does not figure in those pay rolls. 13. In view of the abovestated position, appeal filed by the Punjab State Electricity Board, i.e. LPA No.63 of 2007, is allowed. Judgment of the learned Single Judge is set aside. Appeal filed by the workman, i.e. LPA No.68 of 2007, becomes …7… infructuous, in view of our order allowing the appeal of the Punjab State Electricity Board. Both the appeals stand disposed of. ( R.B. Misra ), J. October 22, 2008(sd) ( Surjit Singh ), J