1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.1624/02 State & Anr. vs. Shri Ram Sahay & Anr. Date of order : 6/2/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Zakir Hussain, Addl. Govt. Counsel for the petitioners. Shri D.P. Pujari for the respondent. ****** This writ petition has been filed by the State of Rajasthan challenging the award of the Labour Court, Jaipur dated 30.3.2001. The Labour Court by the aforesaid award answered the reference on the question of validity of termination of respondent- workman holding that the action of the petitioner in removing respondent from his service with effect from 30.6.1985 was violative of Section 25-F of the Industrial Disputes Act and therefore illegal and therefore directed reinstatement of the respondent with continuity in service but without any back wages and additionally also awarded Rs.250/- as cost for litigation. Shri Zakir Hussain, learned Additional Government Counsel has argued that the evidence that was produced by the management before the Labour Court factually proved 2 that the respondent-workman worked only for 136 days in the entire year 1981 and 106 days in the year 1990 and beyond that he was not able to prove what was the period of his working in the calender year preceding the date of his alleged removal. It was argued that no record was available with the respondents beyond the work of the year 1981, therefore, it was not possible for the management to produce such record. The order of the Labour Court in drawing adverse inference against the management for their inability to produce the record is bad in law. It was argued that mere affidavit of the workman could not prove that he worked continuously from the year 1979 till 30.6.1985 and that he has completed 240 days in the calender year preceding the date of his retrenchment on 30.6.1985. Learned counsel submitted that in any case alleged retrenchment of the respondent-workman having taken place more than 22 years ago on 30.6.1985, direction of his reinstatement cannot at all be justified, more particularly when he worked only for few years and has been continuously out of 3 employment for all this time. It was submitted that the award of the Labour Court be therefore set aside. Shri D.P. Pujari, learned counsel for the respondents opposed the writ petition and submitted that whatever evidence was in possession of the workman, he produced. Apart from his own affidavit, he also filed affidavits of the workman Lohdi Ram S/o Kanchan Ram, Ram Ban S/o Ram Karan and Ram Sahai Gurjar. They were all subjected to cross examination and yet stood the test of scrutiny. Their testimony clearly proved that the petitioner has been continuously working with the respondents till 30.6.1985. In fact, the management took the stand that the petitioner voluntarily absented from the duty which was not believed by the Tribunal. Learned Labour Court relying on the judgement of Supreme Court in AIR 1986 SC page 132 rightly held that the petitioner completed 240 days in the calender. The management has till date not complied with the judgement of this Court. The petitioner submitted an application before the Labour Court on 26.11.1987 which was for summoning 4 records of the relevant period which was allowed by the Labour Court by order dated 2.8.1989 directing the management to produce the relevant records as to the working of the workman. The management neither produced the record, nor did they rebut the affidavits filed on behalf of the workman about his working. The Labour Court therefore rightly drew adverse interference against management. Having heard the learned counsel for the parties and perused the material on record and the award passed by the Labour Court, I find that while the workman produced three affidavits from his side to prove that he worked for 240 days in the calender year preceding the date of his retirement asserting that he was continuously working from 30.6.85 till he was removed, management has produced affidavit of Shri Ravi Kumar Sharma, Assistant Forest Conservator, who too in his cross examination admitted that he has himself not examined the report and that he has also not filed the report. His affidavit was thus filed on the basis of whatever was supplied to him by his office. 5 The evidence of workman thus could not be rebutted. Besides that, the workman has filed the application before the Labour Court for summoning the record relating to the workman and directing the management to produce such report. The management did not produce the record of the Labour Court. Relying on the judgement of Supreme Court in AIR 1986 SC 132, it was contended before the Labour Court that the workman has worked for more than 240 days and thus there was violation of Section 25-F of the Act. Coming now to the alternative submission of learned Additional Government Counsel that reinstatement of the workman after 22 years now when he has not been reinstated pursuant to the award dated 30.3.01 would not be justified, I find substance in this submission because working of the petitioner was confined as per his own contention to six years, but that was when he was in the employment lastly upto 30.6.1985. Keeping in view the recent trend of law and nature of the appointment of the petitioner that he was merely engaged on daily wage basis, requiring the petitioner-State to now 6 reinstate him after 22 years may not be justified. Having regard to the facts of the case, the award of the Labour Court to the extent it has directed to the petitioner-State to reinstate the respondent-workman is required to be suitably modified and it is accordingly modified. While upholding the finding of the Labour Court as to violation of Section 25-F of the Industrial Disputes Act, I direct that instead of reinstating the respondent-workman, the petitioner State shall pay to him a sum of Rs.1,00,000/- in lieu of reinstatement as lump sum compensation within a period of three months from the date copy of this order is produced before them. The writ petition is accordingly allowed in part. (MOHAMMAD RAFIQ), J. RS/