Civil Writ Petition No. 17730 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 17730 of 2007 Date of Decision: November 06, 2008 The District Forest Officer and another ............ Petitioners versus Jagga Singh and another ............. Respondents CORAM HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE NAWAB SINGH 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present: Shri D.S. Nalwa, Addl. Advocate General, Haryana for the petitioners. None for the respondents. HEMANT GUPTA, J. The challenge in the present writ petition is to the order, Annexure P-1, dated 09.10.2006 whereby respondent-workman has been ordered to be reinstated with continuity of service with 50% back wages from the date of issuance of demand notice i.e. 26.03.1998 till the publication of award and full back wages thereafter till reinstatement. The respondent-workman raised an industrial dispute arising out of alleged termination of his services on 29.01.1998. It is the case of the respondent-workman that he was verbally employed on the post of D.P.L. Beldar in the year 1984 and had worked from the year 1984 to 29.01.1998 continuously when his services were terminated and that such termination Civil Writ Petition No. 17730 of 2007 [2] was made in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short “the Act”). The learned Labour Court answered the reference in favour of the workman after holding that the Management has not produced the Muster-Roll from December, 1996 to April, 1997. The learned Labour Court has drawn an adverse inference on account of non production of record and, thus, returned a finding that the workman has completed 240 days in a calendar year. On the basis of said finding, the learned Labour Court passed the impugned award. Learned counsel for the petitioners has vehemently argued that the findings recorded by the Labour Court are against the established principles of law in respect of onus of proof and the inference drawn by the Labour Court. It was contended that it was for the workman to prove that he was engaged for a period of 240 days in a calendar year preceding the date of termination. In the present case, the Labour Court conducted the proceedings putting the onus of proof that the workman has not completed 240 days in a calendar year on the Management. It was contended that such approach of the Labour Court is contrary to the judgment of the Hon'ble Supreme Court in case reported as Municipal Corporation, Faridabad vs. Siri Niwas, (2004)8 SCC 195, M.P. Electricity Board v. Hariram, (2004) 8 SCC 246, Manager, Reserve Bank of India, Bangalore vs. S. Mani and others, (2005) 5 SCC 100 and BSNL vs. Mahesh Chand, (2008) 3 SCC 474. In Siri Niwas's case (supra), Supreme Court held as under:- “13. The provisions of the Evidence Act, 1827 per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Civil Writ Petition No. 17730 of 2007 [3] Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment.... 14. As noticed hereinbefore, the burden of proof was on the workman. From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirement of Section 25-B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. It is improbable that a person working in a local authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls, he could not have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not even examine any other witness in support of his case. 15. A court of law even in a case where provisions of the Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intention non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent”. Civil Writ Petition No. 17730 of 2007 [4] Learned counsel for the petitioners has further contended that even if the workman has completed 240 days in a calendar year, still the employment in question was a public employment and the workman was employed without following any service rules and regulations and giving an opportunity to all the eligible candidates to apply and be considered for appointment. Reliance has also been placed on a decision of the Supreme Court in case reported as Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, wherein it has been held that even if the workman has completed 240 days of service, he is not entitled to be reinstated as the appointment is de hors the rules. It has been held that ad hoc or daily wager employees are not entitled to invoke Article 14 and 16 of the Constitution as such entry in government service is back door entry. A Division Bench of this Court in CWP No. 13533 of 2006 titled Executive Engineer, Provincial Division, PWD B&R Branch, Jind vs. Om Parkash and another, decided on 26.07.2007 has held that an employee on daily wager is not entitled to be appointed / regularization in public appointment. The Court held to the following effect: - “ We have considered this matter in Civil Writ Petition No. 18587 of 2004 Tek hand vs. The Presiding Officer and others, decided on 20.07.2007, wherein after referring to the judgments of the Hon'ble Supreme Court in SM Nilajkar and others vs. Telecom District Manager, Karnataka 2003 (4) SCC 27 and Municipal Council, Samrala vs. Raj Kumar, 2006(3) SCC 81, it was observed that termination of services of daily wager will not amount to retrenchment and will be covered by except (bb) to Section 2 (oo) of the Act. It was further observed after referring to judgments of the Hon'ble Supreme Court in Himanshu Kumar Vidyarthis vs. State of Bihar, AIR 1997 SC Civil Writ Petition No. 17730 of 2007 [5] 3567, Reserve Bank of India vs. Gopinath Sharma, 2006(6) SCC 221 and Gangadhar Pillai vs. Siemens Limited, 2007(1) SCC 533 that an employee employed as a daily wager could not be reinstated/ regularization in public employment which is governed by rules and regulations”. In The Executive Engineer, PWD B& R Provincial Division, Fatehabad vs. Bhajan Singh and another, CWP No. 2270 of 2007 decided on 12.09.2007, this Court held to the following effect:- “ The law has undergone a sea change. The right of a person such as respondent, has been considered by the Hon'ble Supreme Court in Municipal Council, Samrala vs. Raj Kumar (2006) 3 SCC 81, Himanshi Kumar Vidyarthi vs. State of Bihar, AIR 1997 SC 3657, Gangadhar Pillai vs. Siemens Ltd. (2007) 1 SCC 533, State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575. Having regard to the given judgments rendered by the Hon'ble Supreme Court of India, we find that the entry in service of the respondent-workman was illegal and, therefore, he has no right to be reinstated. Such a decision would be clearly contrary to the law laid down by the Hon'ble Supreme Court of India, in the judgments referred to above”. In Sector Superintendent-1, Government Livestock Farm, Hisar vs. Om Parkash, CWP No. 2396 of 2006 decided on 14.11.2007 this Court held to the following effect:- “It is not in dispute that respondent No.1 took entry in service in public employment in total disregard to the statutory provisions and the rules. Since the entry in service of respondent No.1 itself was illegal, therefore, as per the law laid down by the Hon'ble Supreme Court of India in Municipal Council, Samrala vs. Raj Kumar, (2006) 3 SCC 81, Gangadhar Pillai vs. Siemens Limited, (2007) 1 SCC 533, Indian Drugs and Pharmaceuticals Limited vs. Workmen, (2007) 1 SCC Civil Writ Petition No. 17730 of 2007 [6] 408, Reserve Bank of India vs. Gopinath Sharma and another, (2006) 6 SCC 221 and UP Power Corporation Limited and another vs. Bijli Mazdoor Sangh and others, (2007) 5 SCC 755, he is not entitled to reinstatement. In such circumstances, the case would fall under section 2 (oo) of the Act and the provisions of Section 25-F of the Act would not be attracted”. The said view is the consistent view of this Court in numerous other judgments. In view of the above, we are of the opinion that the award of the Labour Court granting reinstatement with continuity in service is not sustainable as the workman was appointed de hors the rules of appointment. Consequently, the impugned award dated 4.2.2002, Annexure P-1, is set aside. Since the workman has worked for a period of about 14 years prior to his termination on 29.1.1998, we deem it appropriate to direct the petitioners to pay compensation of Rs.50,000/- to the respondent-workman within a period of four months. (Hemant Gupta) Judge November 06, 2008 (Nawab Singh) ks Judge