Joga Singh Versus The Presiding Officer, Labour Court, Gurdaspur and others C.M. Nos. 6810 and 6811 of 2010 in R.A. No. 103 of 2010 in CWP No. 8112 of 2009. Present:- Mr. R.S. Ahluwalia, Advocate, for the applicant-petitioner. Ms. Simsi Dhir Malhotra, AAG Punjab, for the non applicant-respondents. -.- -.- CM No. 6810 of 2010 The present application has been filed for exemption from filing certified copies of Order dated 16.02.2010, passed by this Court and Annexure-P-6 and Annexure-P-7. For the reasons mentioned in the application, the same is allowed. Order dated 16.02.2010 and Annexures-P-6/P-7 are taken on record. Application stands disposed of. CM No. 6811 of 2010 The prayer in the present application is for condonation of delay of 26 days in filing the review application. Notice of this application was issued to counsel for non applicant- respondents. Heard counsel for the parties. For the reasons mentioned in the application, delay of 26 days in filing the review application is condoned. Application stands disposed of. RA No. 103 of 2010. The present application has been filed for review of the Order C.M. Nos. 6810 and 6811 of 2010 in -2- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. dated 16.02.2010, passed by this Court, dismissing the abovementioned writ petition, preferred by the applicant-petitioner/Workman (hereinafter referred to as ‘the Workman’), challenging the Award dated 19.11.2008 (Annexure-P- 5), passed by the Labour Court, Gurdaspur, on two grounds, firstly, the Workman had failed to move an appropriate application before the Labour Court, Gurdaspur, for production of relevant records in order to prove that he had completed 240 days with the non applicant-respondent/Management (hereinafter referred to as ‘the Management’) in the 12 preceding months from the date of his termination, i.e., 01.09.1994 and secondly, the Workman had failed to prove before the Labour Court that he had completed 240 days. Alongwith the present application, the Workman has placed on record the applications, which were filed by him, before the Labour Court for summoning of the witnesses alongwith the relevant records, which have been mentioned therein. These two applications are dated 02.12.2002 and 01.12.2003, i.e., Annexure-P-6 and Annexure-P-7 respectively. On the basis of these documents, counsel for the Workman has contended that despite best efforts made by the Workman and despite orders having been passed by the Labour Court for production of records, the same having not been produced before the Court, adverse inference should have been drawn against the Management for non production of the records. The onus having been discharged by the Workman, he should have been granted the benefit under the Industrial Disputes Act, 1947, (hereinafter referred to as ‘the Act’). On this basis, prayer for review of Order dated 16.02.2010, passed by this Court, has been made. C.M. Nos. 6810 and 6811 of 2010 in -3- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. Notice of the application was issued to the Management. Reply to the review application has been filed by the Management. I have heard counsel for the parties and have gone through the records of the case. The factual aspect with regard to the abovementioned applications having been filed by the Workman before the Labour Court, has not been disputed. That being so, the present review application deserves to be allowed. The records of the Labour Court, Gurdaspur, were summoned by this Court, vide Order dated 13.08.2010. The case was re-heard on merits and the original records of the Labour Court perused with the assistance of counsel for the parties. Counsel for the Workman contends that the Workman was appointed as a Beldar with the Management on 15.08.1993 and he continued to work as such till 31.08.1994. His services were terminated with effect from 01.09.1994 without giving him any notice or retrenchment compensation. Thus, having violated the provisions of the Industrial Disputes Act, 1947, the Workman was entitled to reinstatement in service with all consequential benefits. He contends that after termination of services of the Workman, a demand notice was served upon the Management on 05.11.2000. Thereafter, the conciliation proceedings were initiated. Since the said proceedings did not succeed, the matter was referred to the Labour Court, Gurdaspur, for adjudication in July, 2001. C.M. Nos. 6810 and 6811 of 2010 in -4- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. Notice was issued to the Management, to which they had filed their written statement and contested the claim of the Workman. On the basis of evidence led by the parties, it was apparent that the Workman was employed as a Beldar and, therefore, did not have possession of the records, which were with the Management. He had no option but to move an application before the Labour Court for production of the records. He accordingly, moved two applications dated 02.12.2002 and 01.12.2003 (Annexure-P-6 and Annexure-P-7 respectively), wherein a prayer for production of relevant records was made. Management Witness, namely, Inderjeet Mahajan, SDO/MW-1 appeared before the Labour Court and deposed therein that the attendance register for the period August, 1993 to August, 1994, has been destroyed as per the Code of Public Works Department and, therefore, he was unable to produce the same. Ex.M-1 is the affidavit filed by Shri Inderjeet Mahajan, which depicted the period of work, which the Workman had performed with the Management. According to the said affidavit, the Workman had worked with the Management for 169 days. The break-up of the same was given in para-1 of the affidavit dated 06.08.2007 (Ex.M-1), which is as follow :- 3/8/93 to 30/8/93, 1/9/93 to 30/9/93, 11/4/94 to 20/4/94, 1/5/94 to 7/5/94, 9/5/94 to 30/6/94, 2/7/94 to 31/7/94 He in his cross-examination before the Labour Court had admitted that he has only brought the records for three months, i.e., October, 1993, to December, 1993. He has further stated that this was the only record, which was available with the Management and no further records could be produced. On this basis, counsel for the Workman C.M. Nos. 6810 and 6811 of 2010 in -5- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. contends that the relevant records have not been produced, which could show that the Workman had not completed 240 days or had completed 169 days, as has been asserted by the Management. He on this basis contends that the Management had even failed to prove its assertion on the basis of records which had been produced before the Labour Court and the relevant records having not been proved despite having been asserted in the affidavit, the present application deserves to be allowed and adverse inference should be drawn against the Management for non production of the records. On the other hand, counsel for the Management submits that the Department had produced the records, which were available with it and could not produce the attendance register because of the same having been destroyed as per Code applicable to the Public Works Department after a period of one year. The claim of the Workman was belated as after the alleged termination of his services in September 1994, the claim statement was only preferred in November, 2000, i.e., after a period of more than six years. She further contends that the onus was primarily on the Workman to prove that he had completed 240 days with the Department, which he had failed to prove and, therefore, the Labour Court had rightly rejected his reference and, thus, gave the Award in favour of the Management. She further contends that as the Workman was not appointed as per the Rules governing the service and was, therefore, not entitled to any retrenchment compensation. It is a settled principle of law that the onus to prove that the Workman had completed 240 days in the 12 preceding months from C.M. Nos. 6810 and 6811 of 2010 in -6- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. the date of his termination, was primarily on him. But, in the case of a daily wager, who is neither given appointment letter nor attendance sheet, he has to depend upon the Management for keeping and maintaining the records and the Management is bound to produce the same before the Labour Court, when the same is summoned or the Court requires it for perusal. The Workman, therefore, had only one way for getting the records and that was by way of moving an application before the Labour Court for production of relevant records, which he did, as is evident from the applications dated 02.12.2002 and 01.12.2003 (Annexure-P-6 and Annexure-P-7 respectively) and the Labour Court allowed the same. The Management failed to produce the records and a justification was given by the Management for non production of the attendance register making the destruction as a base as per the Code of Public Works Department, which provide for such destruction of records. However, it was admitted during the cross examination that the cash register and receipts were available on the record. Management Witness, namely, Inderjeet Mahajan, SDO, UBDC, Sathiali, had gone further to state before the Labour Court that he had filed an affidavit Ex.M-1 on the basis of official record available with him, which was cash book/voucher and the payment register for the relevant period. The break-up of the period, for which the Workman had worked, was also given in the affidavit, which has been referred to above. But, during the cross-examination, this very witness had stated that he has only got the payment register from October, 1993 to December, 1993, which pertains to only three months. The assertion, which has been made C.M. Nos. 6810 and 6811 of 2010 in -7- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. by the Management that the Workman had completed 169 days with it in service also includes the period in the year 1994, for which no records were produced. The Management having failed to produce the relevant records, which infact, it had asserted was available with it, goes to prove that the stand taken by the Management by way of affidavit dated 06.08.2007 (Ex.M-1) was not based on any document and was merely to deprive the Workman of his claim under the Industrial Disputes Act, 1947. The poor Workman put in his best efforts to get the records and prove his case before the Labour Court and the Management was unable to produce the records nor did it give any reason for non production of the same. In these circumstances, adverse inference deserves to be drawn against the Management and in favour of the Workman. As per the assertion of the Workman, he had worked with the Management from 15.08.1993 to 31.08.1994, after which on 01.09.1994, his services were terminated. Accordingly, it is held that the Workman had completed more than 240 days with the Management and, thus, was entitled to the protection under Section 25-B of the Act. It is an admitted position on behalf of the Management that the Workman was not paid the retrenchment compensation as per statutory requirements, therefore, termination of services of the petitioner cannot be sustained in law as the same is violative of the statutory provisions. Now, the question arises as to what relief the petitioner would be entitled to in the light of the above factual position. A perusal of the records shows that the termination of services of the Workman took place on 01.09.1994, whereas the demand notice C.M. Nos. 6810 and 6811 of 2010 in -8- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. was preferred by the Workman on 05.11.2000. There is an inordinate delay in asserting his right as far as claim of the Workman for reinstatement is concerned. In any case, the Workman was a daily wager and it is not the case of the Workman that his appointment was made as per the statutory Rules governing the service. The question of reinstatement of the Workman at this belated stage would not be justified, especially in the light of delay, which Workman had incurred, while putting forth his claim before the Authorities by way of demand notice as also in view of the period of length of service, which the Workman had put in with the Management, which even if admitted to be true, as asserted by the petitioner was from 15.08.1993 to 31.08.1994, would be just few days above one year. Keeping in view the totality of facts and circumstances of the case, it would be just and appropriate that the Workman be granted a lump-sum compensation for his illegal termination by the Management. Counsel for the Workman has relied upon the judgments of Hon’ble the Supreme Court in the cases of Ramesh Kumar Versus State of Haryana 2010 (1) SCT 675, and Krishan Singh Versus Executive Engineer, Haryana State Agriculture Marketing Board, Rohtak (Haryana), 2010 (2) SCT 534, to contend that the Workman was entitled to reinstatement in service. A perusal of these judgments would show that the Workmen in both the cases had worked with the Management for a considerable long period, whereas in the present case, the Workman had only worked with the Management for a period of one year. Accordingly, this Court is of the opinion that the interest of justice would be duly served by grant of C.M. Nos. 6810 and 6811 of 2010 in -9- R.A. No. 103 of 2010 in CWP No. 8112 of 2009. compensation. Thus, the Workman is held entitled to compensation of Rs. 25,000/-. Ordered accordingly. The present review application is allowed. The impugned Award dated 19.11.2008 (Annexure-P-5), passed by the Labour Court, Gurdaspur, is hereby set aside. The Workman is held entitled to compensation of Rs. 25,000/- in lieu of reinstatement in service. The amount of compensation, as assessed by this Court, be disbursed to the Workman within a period of two months from the date of receipt of certified copy of this Order. (AUGUSTINE GEORGE MASIH) JUDGE September 17, 2010. sjks.