IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.1645 of 2000 Date of Decision:- 11.02.2010 Pawan Kumar ....Petitioner(s) vs. Presiding Officer and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.B.D.Sharma, Advocate, for the petitioner. Mr.Suveer Sehgal, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) Counsel for the petitioner challenges the Award passed by the Labour Court dated 30.8.1999 (Annexure P-12) vide which the reference has been answered against the petitioner-workman on the ground that he has not produced any documentary evidence to substantiate his claim made in the claim statement before the Labour Court. Counsel for the petitioner-workman contends that as the Management had been proceeded against ex parte, the workman had made his oral statement before the Labour Court. The said statement having not been controverted, it should have been taken as un-rebutted evidence on the part of the petitioner and relied upon by the Labour Court to grant the relief which was claimed by the petitioner-workman and the reference should have been answered in his favour. He, on this basis, prays for setting aside of the impugned Award. He relies upon a judgment C.W.P.No.1645 of 2000 -2- of this Court in the case of General Manager, Punjab Roadways, Batala vs. Joginder Singh and another, 2004 (4) RSJ 47 wherein this Court had held that sole statement of the workman, if unrebutted, could be relied upon by the Labour Court to give a finding with regard to the non-compliance of the provisions of the Industrial Disputes Act, 1947 (for short the Act). On the other hand, Counsel for respondent No.2-workman submits that the claim statement of the workman deserves to be rejected as he has not approached the Labour Court with clean hands. The petitioner claimed himself to have been appointed and working as a Clerk but as a matter of fact, he was appointed as a part time Safai Karamchari. He was never appointed as a Clerk nor did he work as such. In support of this contention, he relies upon the application filed by the workman for appointment (Annexure R-2/3) as also the joining report (Annexure R/2-4) which clearly shows that he was only appointed as a part time Safai Sewak. He, on this basis, contends that no relief should be granted to the petitioner. In support of this contention, he relies upon a judgment of this Court in the case of Jaspal Singh vs.State of Haryana and others, 2003(2) P.L.R. 296 wherein this Court had held that the petitioner should approach the concerned Court with clean hands and if he fails to do so, the petition deserves to be dismissed on that very ground alone. I have heard counsel for the parties and have gone through the records of the case. It is a settled proposition of law now, that the onus to prove that the workman has completed more than 240 days in service with the Management in 12 preceding months and his termination is in violation of the provisions of the Act, is on the workman. To discharge this onus, C.W.P.No.1645 of 2000 -3- the workman can himself step into the witness box and put-forth his assertion, as has been done in the present case. He is required to not only make a statement in this regard but to produce documentary evidence as well. The petitioner in the light of the fact that the Management had been proceeded against ex parte, simply made the statement and did not produce the documentary evidence on record, which went against the petitioner leading to the passing of the Award against him, which is impugned herein. It is also not in dispute that the Management was proceeded against ex parte, which order was not challenged by the Management and thus the same had attained finality. As has been pleaded by the parties, the decision of the case on merits by hearing both the parties would be in the interest of justice as the claim of the petitioner, although not supported by some documentary evidence, is at least supported by his oral evidence. The Management also in the writ petition has placed on record certain documents which shows that the petitioner was not appointed as a Clerk. As such, the assertions and the counter-assertions made by the parties need to be properly adjudicated upon so that justice should not suffer. Keeping in view the totality of the facts and circumstances of the case, the interest of justice would be duly served if the impugned Award is set aside and the case is remanded to the Labour Court for fresh adjudication after giving both the parties further opportunity to lead their respective evidence and on their doing so, the Labour Court shall, on consideration of the same, pass appropriate orders in accordance with law. It is ordered accordingly. The present petition is accordingly allowed; impugned award C.W.P.No.1645 of 2000 -4- dated 30.8.1999 (Annexure P-12) passed by the Labour Court, Jalandhar, is hereby set aside. The parties are directed to appear before the Labour Court, Jalandhar on 10.3.2010, which shall give liberty to the petitioner- workman as well as the respondent-Management to lead their respective evidence and on consideration of the same, the Labour Court shall proceed to decide the reference in accordance with law. February 11, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE