1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Writ Petition No. 2216 of 2008 Sayyad Arif Sayyad Ikbal Vs. Superintending Engineer PWD Amravati & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri V. M. Deshpande Adv. for petitioner. CORAM: J. H. BHATIA J. Dated: 16 th March, 2009. Heard learned counsel for the parties. Perused the impugned judgment and the relevant record. 2. On perusal of the record it appears that on 02.06.1979 the petitioner initially joined as a Oilman with the respondent on daily wages. On 01.04.1986 he was brought on CRT 2 Establishment as Oilman/Conductor and Service Book was opened. He filed complaint ULP No. 231 of 1995 alleging that since 06.03.1985 he has been continuously working on the post of driver on the vehicle MHG-4843 and that he was holding heavy driving licence since the year 1981. According to him inspite of the fact that he has been working as Driver continuously since 06.03.1985 he has not been paid wages or salary of the post of driver. Therefore according to him respondents had indulged in unfair labour practice under M. R. T. P. & P. U. L. P. Act. He sought directions to bring him on CRTE as a driver and to make him permanent on the post with all the benefits and privileges with retrospective effect. The complaint was resisted by the respondent denying that he was working regularly as a Driver. According to them he was working as a Oilman on daily wages and he was brought on CRTE as such. It is further contended that once he was brought on CRTE as Oilman he could not be again brought on CRTE as Driver under Kalelkar Settlement which is applicable to the Department. After hearing the evidence from the parties the learned Member of the 3 Industrial Court dismissed the complaint by impugned order dated 15.03.2008. Hence this petition. 3. At the out set it may be stated that by order dated 15.04.2008 the petitioner has already been promoted and appointed as Driver and he has also joined that post and is getting salary as per the prescribed pay scale for that post. On perusal of the record it also appears that the plaintiff himself admitted that the post of driver was sanctioned post and it falls under Class III. He also admitted that as and when there was a need, he was given work as a Driver on work charge establishment. He also admitted that whenever he was working on work charge establishment he was given daily wages as a driver. It is material to note that he had produced certain letters Ex. 24 to 37 issued by the concerned Sub Divisional Officer P. W. D. requiring the petitioner to discharge the function of driver on particular day or a particular vehicle and accordingly he did that job. If Government has provided the vehicle and also there is a sanctioned post of driver, naturally the vehicle was being driven by the person holding the post of driver. If the contention of the 4 petitioner that by oral orders he was working as driver continuously since 06.03.1985 is concerned , it is difficult to understand why certain orders were passed as per the letters Ex. 24 to 37 to drive the vehicle on particular day and for particular purpose. If he was regularly working as a driver there would be no need of any such letters. The acceptance of these letters and orders as well as the fact that there is a sanctioned post of driver and the fact that petitioner was brought on CRTE as Oilman/Conductor in 1986, run contrary to the plea of the petitioner that he was continuously working as driver since 06.03.1985. It appears that the petitioner had made an application before the Industrial Court seeking directions to the respondents to produce Log Books and Service Book since 06.03.1985 of the complainant. It appears that Service Book was produced which clearly reveals that it was opened with effect from 01.04.1986 when he joined as Conductor/Oilman. Naturally this was after he was brought on CRTE as Oilman/Conductor. Before that he was working on daily wages and therefore question of opening 5 Service Book could not arise. It appears that Log Books since 06.03.19085 were not produced. On the basis of this it was vehemently argued that material evidence was in possession of the respondents and it was not produced and therefore adverse inference should be drawn against the respondents. However, it is material to note that as per his evidence and as per record there were number of vehicles operating with the respondents. In his application he did not mention the number of the vehicle the log book of which was sought to be produced. He had made a general request calling upon the respondents to produce log books since 06.03.1985. In my considered opinion merely because of non production of log books of the vehicles available with the respondents, adverse inference cannot be drawn against them. In view of the fact that respondents are the Government Department, where admittedly post of driver is sanctioned, there is no material on record to show that the post of driver was not filled in and that the petitioner was required to work as driver continuously. There is also no documentary evidence to show that he was directed to work as a driver continuously. On 6 the contrary the letters produced by him clearly show that on particular occasion and in emergency he was called upon to discharge the duty of driver and for that he was paid wages. In view of this material I find that learned Member of the Industrial Court was right in coming to the conclusion that the petitioner had failed to prove that he was continuously working as driver since 1985. 4. For the aforesaid reasons, I find no substance in the present petition and accordingly it stands dismissed. JUDGE svk