CWP No.4264 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4264 of 2003 Date of decision : 18-12-2009 The Gurdaspur Cooperative Sugar Mills, Ltd., and another ....Petitioners VERSUS Manohar Singh and another ....Respondents CORAM:- HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Rahul Sharma, Advocate, for the petitioners. Mr. Arun Abrol, Advocate, for the respondents. K. KANNAN, J. (Oral) 1. The Award which is challenged by the Management is a reference answered in favour of the workman that his termination without following the mandate of Section 25-F was illegal. The workman is also allowed the relief of full-back wages from the date of demand notice dated 30.05.1998 till his actual date of reinstatement. The workman's contention was that he had been continuously in service from November 1986 till the end of June 1995 when he was abruptly terminated in service. The management took a defence that the workman was not a regular employee and had not been appointed through any regular recruitment process. The only reliance which the workman placed was a Provident Fund Pass Book which showed the entries from 1990-91 to 1993-94. The Labour Court drew an adverse inference against the management for its non-production of the CWP No.4264 of 2003 -2- relevant muster roll and attendance register to disprove the contention of the workman that he continued in employment upto 30.06.1995. 2. The learned counsel appearing for the management contended that the burden of proof is always on the management and that burden had not been discharged. He had not even called upon the management to produce the records and the adverse inference drawn under such circumstances was unjustified. The further submission was that even the only document which the workman relied on was pass book that did not contain any entry for the most crucial period of 12 months prior to July 1995. At the hearing on 20.11.2009, this Court had directed the petitioner to produce the muster roll for the relevant period. He had also produced the attendance register for the period but it does not contain the name of the petitioner for any period from July 1994 to June 1995. 3. The learned counsel appearing for the respondents objects to this attendance register by stating that it is only an attendance register for a distillery unit which has been closed and he had been shifted from the Distillery Department to the Sugar Department. 4. The factual consideration whether the attendance register is true or not and whether the workman had been transferred from the Distillery Department to Sugar Department cannot be considered here for the first time in the writ petition. If the matter has to be approached only from a factual stand point, that aspect has been dealt with by the Labour Court although the sweeping observations made by the Labour Court that the burden was on the management to establish that the workman did not work for 240 days does not state the correct point of law. I am informed that the CWP No.4264 of 2003 -3- workman had been allowed to join the duty on 2.05.2003 and he has been continuing in service. In my view, it would not be appropriate to upset the finding of fact recorded with reference to the actual number of days which the workman had worked and to even the scales of justice, for an employment that the workman had secured by virtue of the Award, the relief of back wages already granted for the period when he did not work is set aside. The workman has obtained reinstatement which he shall retain. The only modification that the Award will suffer is that portion which provides for back wages to the workman. The reinstatement will operate to the workman the same post which he held at time of his termination. 5. The writ petition is disposed of in the above terms with the modifications in the Award as stated above. (K.KANNAN) JUDGE 18-12-2009 manju