C.W.P. No.13968 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13968 of 2006 DATE OF DECISION: 11.9.2006 *** Executive Engineer, Bari Doab Drainage Division, Jal Nikas, Amritsar, Sub Division Verma, Amritsar. ..PETITIONER VS. Tarsem Singh and another. ..RESPONDENT CORAM: HON'BLE MR. JUSTICE J.S. NARANG. HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Ms. Nirmaljit Kaur, Addl. A.G. Punjab with Ms. Sonia K. Aggarwal, AAG Punjab for the petitioner. *** JUDGMENT: The petitioner-department has invoked the extra ordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, seeking quashment of the award dated 19.5.2006 passed by the Labour Court, ordering re-instatement of respondent-workman with continuity of service and 25% back wages. It emerges out from the record that the respondent No.1- workman raised an industrial dispute challenging termination of his services by the petitioner-department. It was his case that his services were illegally terminated on 3.6.1997 without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for brevity the Act), whereas he had served the department continuously for the last two years. Besides, violation of provisions of Sections 25-G and 25-H of the Act was claimed. C.W.P. No.13968 of 2006 2 His claim was resisted by the petitioner-department by filing a detailed reply. The pivotal stand of the petitioner-department was that on the alleged date of termination i.e. 3.6.1997, the workman was not in their services. As such, question of termination of his services on 3.6.1997 does not arise. Rather the workman served the department from January 1996 to April 1996 and thereafter from August 1996 to April 1997, as per requirement of work. Thereafter, he was relieved of his duties due to non- availability of work. The Labour Court after analysing the evidence produced by both the parties held that there was violation of provisions of Section 25-F of the Act while terminating the services of the workman. It accordingly set aside the termination of the services of the workman and as said above ordered his re-instatement with continuity of service and 25% back wages. Feeling aggrieved with the same, the petitioner-department has filed the instant petition. We have heard learned Addl. Advocate General appearing on behalf of the petitioner and have gone through the paper-book carefully as also the impugned award. Section 25-F of the Act provides protection to a workman from illegal retrenchment who has completed 240 days of continuous service in the year or say 12 calendar months preceding the date of his termination. Undisputedly, the burden of proof is on the workman to show that he had in fact worked for more than 240 days in the year preceding his termination, as held in Range Forest Officer Vs. S.T. Hadmani JT 2002 (2) SC 238, Manager, Reserve Bank of India, Bangalore Vs. S. Mani and others, 2005 (5) SCC 100 and R.M. Yellati Vs. The Asst. Executive Engineer, C.W.P. No.13968 of 2006 3 2006 (1) SCC 106. This burden has to be discharged by the workman by adducing cogent and sufficient evidence. However, a perusal of the record shows that it is nowhere the case of the petitioner-department that the workman had not completed 240 days when his services were terminated due to non-availability of work. On the other hand, their plea was only that the workman was not in their services on or after 1.5.1997, as such there was no occasion for the department to terminate the services of the workman on 3.6.1997 and that the reference is not maintainable accordingly. This plea was categorically denied by the workman. Moreover, to controvert this plea of the petitioner-department, the workman got examined WW2 Avtar Singh, but that witness did not produce the complete record relating to the workman. However, a plea was taken by the department that the record i.e. attendance register was destroyed after one year. But no rules of instructions have been shown which provides for weeding up of record after one year. This handicapped the workman to substantiate his plea of having worked upto 3.6.1997. It also appears that the department produced the record which suits them and withheld the record, production of which might proved fatal to their case. The pay bills in respect of the workman for the period January 1997 to March 1997 and for May and June 1997 were produced, whereas for the month of April 1997 only cash book was produced, which obviously does not show the attendance of the workman. Moreover, at the same time, the Labour Court took into notice the fact that on many occasions the payment was made to the workman sometimes months after he actually put in service. The department with-held the muster rolls and attendance record pertaining to the workman. Similarly payment register of casual workers including that C.W.P. No.13968 of 2006 4 of workman relating to the period after December 1996 was not produced, which led the Labour Court to draw an adverse inference against the petitioner-department. As per Section 25-D of the Act, it is obligatory on the part of the department to maintain whole record concerning the service period of a workman and to produce the same as and when directed by the Court or appropriate forum. A perusal of record also shows that though the workman worked under various projects, but all of them were executed only under Verka Drainage Sub Division. Moreover, a perusal of impugned shows it was say of department's own witness Parminder Singh (MW-1) that the workman rendered service only in Verka Drainage Sub Division and his services from August 1996 till his termination were continuous. In this eventuality, the plea that the service rendered by the workman under various projects cannot be clubbed together to extend benefit of Section 25-F of the Act ibid, cannot be accepted. The provisions of Section 25-F of the Act are couched in mandatory form and non-compliance therewith has a result of rendering the order of retrenchment void ab initio or non est. Therefore, considering this aspect of the matter, the Labour Court has rightly held that the termination of services of the workman without complying with the provisions of Section 25-F of the Act, is bad. Lastly, the contention of learned Addl. Advocate General is that the Labour Court has erred in granting back wages to the extent of 25% whereas the workman himself had admitted in his cross-examination that he did not make sincere efforts to get any job during interregnum. Undoubtedly, the onus is on the workman to prove that he remained idle after his services were terminated. However, in view of the law laid down in U.P. State Brassware Corpn. Ltd. and another vs. Uday Narain C.W.P. No.13968 of 2006 5 Pandey, 2006 (1) SCC 479, the grant of 25% back wages are not excessive. In view of the discussion made above, the petition is dismissed in limine being devoid of any merits. (ARVIND KUMAR) JUDGE September 11,2006 (J.S. NARANG) Jiten JUDGE