IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.19419 of 2006 Date of decision:14.07.2009 Divisional Forest Officer, Territorial, Social Forest Department, Sirsa, now Divisional Forest Officer, Territorial, Sirsa. ...Petitioner versus Satpal and another ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. D.S.Nalwa, Additional Advocate General, Haryana. Mr. Tarun Gupta, Advocate, for respondent No.1 --- 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 ? K.Kannan, J.(Oral) 1. By virtue of the award that sought a reference whether the termination of services of the workman Shri Satpal Singh was justified or not, the contention of the workman was that he had been engaged as a Mali in the Forest Department, Sirsa, between the period w.e.f. 12.02.1986 to 31.07.1999 and he had completed 240 days of service in each year. The defence was entered by the department urging that he had not completed 240 days and he had worked only for 58 days as per details given in the annexure providing for a working statement for 12 months prior to December 1998. The Labour Court reasoned that the relevant records which the department must have produced, were not produced and draw an adverse inference to uphold the claim of the workman that the termination had been effected without following the Civil Writ Petition No.19419 of 2006 - 2 - statutory requirement of Section 25-F of the Industrial Disputes Act and directed reinstatement. 2. The learned counsel Mr. Nalwa, appearing for the petitioner, would contend that the Labour Court ought not to have made an adverse inference when actually a document was produced before the Court and when that there was no finding that the document which recorded the details of attendance for a period of 12 months from December 1998, could not be relied upon. He referred to the decision of the Hon’ble Supreme Court Director Vocational Education & Training and another Versus Nashim Shaikh Chand-2007(1) SCC L&S 113, to support the proposition that the muster roll is not the only document of attendance and if there was other document produced and the Labour Court or the High Court had not doubted the truth and genuineness of such document, the question of drawing an adverse inference that the employer was deliberately trying to withhold the best available proof did not arise. 3. It is not a case where the document which was produced before the Court was only the document which could have been produced. What was filed before the Labour Court was the attendance register details from November 1997 to December 1998 which merely recorded the fact that from November 1997 to June 1998, there had been nil attendance and for July, September and October, 1998, the workman had attended 38 and 20 days respectively and for the remaining months, there had been nil attendance. The working sheet is not a daily record; it is an extract of the number of days that the workman Civil Writ Petition No.19419 of 2006 - 3 - could have worked as per other records of the department. The learned counsel Mr. Nalwa, admits that it cannot be a primary source itself and it ought to have assimilated the particulars from some other source. It is not as if that the department did not have a muster roll at all. Indeed, it is a statutory requirement and even the daily rated workers could not have been employed without entering their names and marking their presence on the days when they are in service. The work-sheet itself does not appear to contain all correct entries for even as per the copy of muster roll produced before the Court for some months only, it could be seen for September 1998, the extract of working sheet states that the workman had worked for 7 days but the muster roll shows 8 days. The muster roll again refers to specific beats or places where the work has been extracted from the workman. The workman had given specific details in the demand notice as well as in the claim statement about his employment. In particular, the workman has averred as follows:- “From 12.2.1986 to 30.6.1987 Moujabgarh, 1.7.1987 to 30.6.89 Beat Goriwala, Guard Shri Mohinder Singh (Territorial) Range Dabwali; 1.5.90 to 31.7.1991 Beat Ottu, Range Rania Guard Shri Pokar Singh (Territorial), Range Rania; 1.8.1991 ro 30.8.92 Beat Sirsa Guard Shri Pokar Singh and Gurbax Singh (Territorial) Range Hisar; 1.9.1992 to 30.4.1997 Beat Dabwali, Guard Shri Dharampal (Territorial) Range Dabwali. Thereafter, the plaintiff was transferred to Social Forestry Scheme Range, Sirsa as per verbal orders. The plaintiff worked from 1.5.1997 to 30.12.1997 in Beat Sirsa Guard Shri Karam Chand (Social) and then with verbal orders, was transferred to Territorial Range, Sirsa. The plaintiff had worked from 1.1.1998 to 30.6.1998 in Bat Civil Writ Petition No.19419 of 2006 - 4 - Bajekan Guard Shri Mohan Lal; 1.7.1998 to 30.8.1998 Beat Bajekan Guard Shri Devat Ram 1.9.1998 to 30.12.1998 Beat Nezia/Randhawa Guard Shri Partap Singh, 1.1.1999 to 30.4.1999 Beat Ding/Suchan Guard Shri Jaibir Singh; 1.5.1999 to 31.7.1999 Beat Ding/’Suchan Guard Jaibir Singh and Sita Ram.” 4. When specific details had been given with reference to the Beats where he was working, the non-filing of register with reference to those particular Beats, is definitely a circumstance that evokes a doubt about the contention of the management that the workman had worked only for 58 days. The documents which ought to be in custody of the department had not been produced and the document that was produced being not itself a primary source, the Labour Court was justified in drawing an adverse inference and upholding the contention of the workman. The decision of the Hon’ble Supreme Court cited by the learned counsel dealt with the case where the document that had been filed was found to be credible or at least the correctness or genuineness was not doubted. Here in this case, all the relevant documents for the years when the workman claimed he had worked in various places had not been produced. 5. The case cannot still be decided in favour of the workman wholly for the relief which he had claimed. Since the work in the Forest Department is in the nature of public employment, unless it is shown that the workman had been employed in a sanctioned post or employment had been made by a person competent to given employment or it is shown that the relevant rules had been followed or still further that there had been a particular cadre that was available to which he is Civil Writ Petition No.19419 of 2006 - 5 - claiming that he was working lawfully, it is not possible direct reinstatement. The violation of Section 25-F by itself does not grant a right of reinstatement. The said Section provides for a particular procedure for issuance of notice before the termination is made. A practice that has obtained currency and which has time and again been upheld by the Hon’ble Supreme Court as well is to award compensation for the non-compliance under Section 25-F, taking into account the number of years of service that the workman had put in. The workman claims that he had been engaged continuously for the period from 12.02.1986 to 31.07.1999 that is a period of 12 years and 5 months. Although the workman had claimed that he had worked 240 days in every year, there is no definite proof available as to the number of days that the workman had worked and there is certain approximation. I am of the view that the appropriate compensation would be just Rs.1,35,000/-, which shall be payable within two months from the date of this order, failing which it shall carry simple interest @ 7.5% per annum from the date of this order till date of payment. 6. The award of the Labour Court is set aside and modified to the extent indicated above. The writ petition is, accordingly, disposed of, in the above terms. No costs. (K.KANNAN) JUDGE 14.07.2009 sanjeev