IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 6021 of 2009 . Date of Decision : May 27, 2009. Sham Pati wife of Shri Sukhdev resident of Dera Jasbir Singh near Railway Station, Shahbad Markanda, District Kurukshetra. ...... Petitioner. Versus. Presiding Officer, Labour Court, Ambala, and others. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Deepak Sharma, Advocate, for the petitioner. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the impugned award dated 08.05.2008 (Annexure-P-4), passed by the Labour Court, Ambala, vide which the reference has been answered against the workman, holding her not entitled to any benefit as she has been unable to prove that she had completed more than 240 days in the 12 preceding months from the date of her termination which would entitled her to the protection and benefit under Section 25-F of the Industrial Disputes Act (hereinafter referred to as “the Act”). It has further been relied upon by the Labour Court on the statement made by the workman herself that she has no dues to claim from the Department and all claims have been paid to her. Counsel for the petitioner relying upon the statement and cross- examination of M.W.1 Kalyan Singh, Deputy Ranger, o/o D.F.O. Kurukshetra, and M.W. 1 Mr. Sandeep Singh, R.F.O. Thanesar, o/o D.F.O. Kurukshetra, submits that it is an admitted position that the workman C.W.P. No. 6021 of 2009. continued to work on daily wage basis with the Management from May, 1994 to August, 2000. However, thereafter, a specific plea has been taken by the Management that the worker had taken a contract from the year June, 2001, and was getting the work done till July, 2004, the alleged date of termination. He submits that no records had been produced by the Management to justify either by producing contract / tender, which is alleged to have been floated nor had any payment receipts been produced, which would show that the petitioner was indeed a Contractor. He submits that the workman had specifically stated that she had continued as a daily wager from 1994 till 2004, the alleged year of her termination as a daily wager and, therefore, the Management having failed to produce the records, adverse inference should have been drawn against the Management. Although, examination-in-chief was deferred only for the reason that the management witness wanted to produce the records. He further contends that the official who had come before the Court, had specifically stated that he has not brought the muster rolls for the period July, 1994 to February, 2005. On this basis, he contends that adverse inference should have been drawn against the Management for non production of records. On this basis he contends that the findings as recorded by the Labour Court cannot be sustained and deserves to be set aside. I have heard counsel for the petitioner and have gone through the records of the case as well as the statement of M.W.1, which has been produced on record. The contention as raised by counsel for the petitioner with regard to non proving of the assertion by the Management with regard to the fact that workman seized to be a workman and was a Contractor from the year June, 2001 till July, 2004, cannot be said to be without any basis. It -2- C.W.P. No. 6021 of 2009. is true that the Management did not produce payment receipts and the tender notice or the contract which would have shown that the workman was a Contractor from 2001 till July, 2004. However, the onus to prove that the workman had completed more than 240 days in the 12 preceding months from the alleged date of termination was solely on the petitioner. The records according to the management witness was available at the office but they were not produced when the said statement was given by the management witness. The assertion with regard to workman having been appointed on daily wage basis and had completed more than 240 days in the 12 preceding months from the date of her termination, was made by the petitioner and, therefore, the onus to prove the same was on the workman herself, which she failed to discharge. It is not the case of the Management that the muster rolls, which is the proof that the workman is a daily wager, was not available or the same could not be produced. The workman should have moved an application calling for the said muster rolls, which according to the management witness was available in the office. Having failed to do so, the workman cannot be said to have discharged its onus with regard to proving the assertion made by her that she was a daily wager. Mere non production of records by the management witness would not entitle the workman to assert that adverse inference should be drawn against the Management when the workman herself fails to summon the relevant records for production before the Court. In case, such a request is made by the workman and still the records are not produced, adverse inference then could have been drawn against the Management. There is nothing on record, which would show that the workman had indeed worked as a daily wage employee after 2001 or that she -3- C.W.P. No. 6021 of 2009. had completed more than 240 days in the 12 preceding months from the date of her alleged termination. The findings as recorded by the Labour Court with regard to this factual aspect cannot, therefore, be said to be perverse or without any basis. Since, the workman has not been able to prove that she had completed 240 days in the 12 preceding months from the date of termination, she would not be entitled to protection as provided under Section 25-F of the Act. Having held so, the impugned award deserves to be upheld as there is no illegality therein, which would persuade this Court to take a contrary view. In view of the above, the present writ petition stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE May 27, 2009. sjks. Whether referred to the Reporter - Yes / No. -4-