IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 4609 of 2009. Date of Decision : March 24, 2009. Gulvir. ...... Petitioner. Versus. Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Gurgaon, and another. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. N.D. Achint, Advocate, for the petitioner. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 09.12.2008 (Annexure-P-6), passed by the Industrial Tribunal-cum-Labour Court-I, Gurgaon, wherein the reference has been answered against the petitioner-workman holding that the petitioner-workman has failed to prove that he had put in service of 240 days in the 12 preceding months from the date of his termination. Counsel for the petitioner contends that the records pertaining to the year, 1993 till the year, 1997, were not produced by the respondent- management and non production of the said records is admitted by the management witness, namely, Shri Yogesh Yadav – M.W.1. He further contends that the records which have been produced only relate to the year, 1997, although, the petitioner-workman has all through been working from May, 1993, to 22.12.1997. He, therefore, contends that the findings as C.W.P. No. 4609 of 2009. recorded by the Labour Court, cannot be sustained, and therefore, the award deserves to be set aside. Perusal of the award shows that the respondent-management has produced Ex. R.1 to Ex. R.7 which pertain to the year, 1997, that is the relevant period for taking into consideration the days for which the petitioner-workman has put in service with the respondent-management in the 12 preceding months from the date of his termination. On the basis of those documents, the Labour Court has come to the conclusion that the petitioner-workman has failed to complete 240 days in the 12 preceding months, therefore, he would not be entitled to protection of the provisions of Section 25-F of the Industrial Disputes Act. Counsel for the petitioner-workman relies upon the judgment of this Court in the case of Ramesh Kumar Versus Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Gurgaon, and another, 2002(4) Labour and Service Judicial Reports 169, to contend that non production of the records by the respondent-management would lead to an adverse inference being taken by the Labour Court against the respondent- management. He contends that as the records prior to the year, 1997, having not been produced by the respondent-management, an adverse inference should have been taken by the Labour Court. The position with regard to taking of adverse inference depends upon the efforts being made by the workman for getting the relevant records produced. Firstly, the relevant record would be for the year, 1997, as the services of the petitioner-workman were terminated in December, 1997. These records have been produced before the Labour Court, however, prior thereto, the records which the petitioner-workman says, has not been produced although not relevant -2- C.W.P. No. 4609 of 2009. would have been produced, had the petitioner-workman made an effort to that effect. Perusal of the award clearly shows that the petitioner-workman did not make any effort to summon the records of the respondent- management with regard to attendance and wages register for the date the petitioner-workman states the records have not been produced. In this view of the matter, the inference which could be termed to be adverse, cannot be taken against the respondent-management. The onus to prove the assertion which is made by any of the parties, is on that party and that onus having not been discharged, the contention as raised by counsel for the petitioner- workman, cannot be accepted. Hon'ble the Supreme Court in the case of Municipal Council, Surajpur Versus Surinder Kumar, 2005(6) S.C.C. 173, and thereafter, in other judgments has held that the onus of proving that the workman has put in service 240 days prior to the date of his termination, is on the workman himself. In this view of the matter, the contentions as raised by the petitioner in the present writ petition, cannot be sustained and are hereby rejected. In view of the above, the present writ petition stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE March 24, 2009. sjks. -3-