IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 28 of 2008. Decided on: 17.11.2008. State of Himachal Pradesh and Another. … … … Petitioners. Versus Prahlad. … … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioners: Mr. Rajinder Kishore Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General. For the Respondent: Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. Rajiv Sharma, Judge: This petition is directed against the award passed by learned H.P. Industrial Tribunal-cum-Labour Court, Dharamshala in reference No.281/2001, dated 23.3.2006. Brief facts necessary for the adjudication of this petition are that the State Government had made the following reference to the Industrial Tribunal-cum-Labour Court, Dharamshala:- Whether reporters of local papers may be allowed to see the judgment? No. - 2 - “Whether the act of Divisional Forest Officer, Forest Division Salooni, Distt. Chamba, H.P. not regularizing the services of Sh. Prahlad Singh S/o Sh. Shambhu w.e.f. 01-01- 1994 is proper and justified? If not, what reliefs i.e. reinstatement, date of regularization, salary, seniority and compensation the workman is entitled to? In sequel to reference made by the State Government, the respondent (hereinafter referred to as the workman for convenience sake) filed claim petition before the Industrial Tribunal with the averments that he had been working continuously under the respondents since 1969. He had prayed that taking into consideration his length of service, he was entitled to be regularised. In para 4 of the claim petition he has specifically averred that persons junior to him have been regularised. It appears from the record that he was retrenched during the pendency of reference before the Labour Court. The petitioner (hereinafter referred to as the employer for brevity sake) had filed reply to the claim petition. The principal stand of the employer in the reply was that the workman was engaged in the year 1991 and not in the year 1969 as alleged. There is no denial by the employer that the persons junior to the workman were regularised. The application filed by the workman under Section 33-A of the Industrial Disputes Act, 1947 was decided by the learned Presiding Judge of the Labour Court in his favour. The learned Tribunal on the basis of the evidence led by the parties answered the reference in favour of the workman. The employer was directed to consider his claim for regularization from the date he has become eligible with all consequential benefits. - 3 - The learned Senior Additional Advocate General has strenuously argued that the award dated 23.3.2006 is not sustainable in the eyes of law. He contended that the Labour Court had come to the wrong conclusion that the workman was entitled to regularization. Mr. Bhupender Gupta, Senior Advocate has supported the award dated 23.3.2006. The Court had directed the learned Additional Advocate General to produce the record to ascertain whether the workman was working since 1969 onward with the Forest Department or not. This record was not produced by the State even today, i.e. on 17.11.2008. I have heard the learned counsel for the parties and gone through the pleadings of the parties carefully. The workman had appeared before the Labour Court as witness. He had supported the averments contained in the claim petition. The employer had produced RW-1. It is evident from the award that RW-1 did not deny the factum of the persons junior to the workman being regularised by the employer. The employer has also failed to produce the record before the Labour Court. The Labour Court has drawn adverse inference against the employer. Mr. Sharma has drawn the attention of the Court to various documents placed on record to substantiate his submission that the workman had not completed 240 days. His further contention is that it was for the workman to prove conclusively that he had completed 240 days. The case set up by the workman before the Labour Court was that he had been working with the Forest Department since 1969. His services though were not regularised, however, the services of the - 4 - persons junior to him have been regularised by the Department. This specific averment has come in para 4 of the claim petition. The employer has not refuted this assertion in the claim petition. It is settled law that every allegation of fact in the petition, if not denied specifically or stated to be not admitted in the pleadings of the defendants, shall be taken to be admitted except as against a person under disability. The employer could not produce before the Labour Court the record of persons who though were junior to the workman, but were regularised. This record was in possession of the employer and the same could be easily produced before the Labour Court. This Court has also given opportunity to the employer to produce the record to see whether the workman had been working since 1969 onwards or not. The State has not produced this record. The Labour Court has rightly drawn adverse inference against the employer since it had failed to produce the relevant record before it. Their Lordships of Hon’ble Supreme Court in Sriram Industrial Enterprises Ltd. versus Mahak Singh and Others, (2007) 4 SCC 94 have held that if the Management/employer fails to produce the relevant record lying in its custody, the Court may draw an adverse inference under Section 114 of the Indian Evidence Act, 1872. Their Lordships have held as under:- “The said approach, in our view, was erroneous in view of the decision of this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. - 5 - Consequently, instead of drawing an adverse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise. In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6-N read with Section 2 (g) of the U.P. Act which is applicable to these petitions. Having correctly interpreted the provisions of Section 6-N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer's case were watered down by the subsequent decision in R.M. Yellatty's case and in our view the workmen had discharged their initial onus by production of the documents in their possession.” The matter is also required to be looked into from another angle. The award is dated 23.3.2006. The present petition has been filed on 3rd January, 2008. This inordinate delay has not been explained satisfactorily by the employer. The Additional Secretary (Forests) has written letter to the Principal Chief Conservator (Forests) to the Government of Himachal Pradesh. What happened between 23.3.2006 and 26.7.2007, has not been explained by the employer. No date has - 6 - been mentioned when the District Attorney has given the opinion and when the matter was sent to the Conservator of Forests, Chamba Circle through the Principal Chief Conservator of Forests, Shimla. In view of the observations made hereinabove, the writ petition is dismissed. There shall be no order as to costs. November 17, 2008. (Rajiv Sharma) (sck). Judge.