C.W.P.No.2741 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.2741 of 2009 Date of Decision:- 05.05.2009 SDE P.H.Engineering S/Divn.No.2 Bhiwani and another ....Petitioner(s) vs. Jai Ram and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Additional Advocate General, Haryana for the petitioners. Mr.Mani Ram Verma, Advocate for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award dated 9.6.2008 (Annexure P-5) passed by the Industrial Tribunal-cum- Labour Court, Rohtak, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement on his previous post with continuity of service with 50% back wages from the date of demand notice i.e.8.12.2001. Counsel for the petitioners contends that the Labour Court has wrongly drawn an adverse inference against the Management for non- production of records. All the relevant records were produced by the Management as is apparent from Exhibits M-3 to M-23 i.e. the muster-rolls. C.W.P.No.2741 of 2009 -2- He further submits that the Management's witnesses further produced the work details, namely, Exhibit M-1. Having done so, the findings which have been recorded by the Labour Court cannot be sustained as the same is primarily based on non-production of the records by the workman's witnesses. He submits that the Labour Court has not given a finding to the effect that the records which have been produced by the Management did not relate to the relevant period. He, on this basis, contends that the evidence produced by the Management shows that the workman has not completed more than 240 days in the 12 preceding months and, therefore, the findings with regard to non-compliance of Section 25-F of the Industrial Disputes Act, 1947 cannot be sustained. On the other hand, counsel for the respondent-workman contends that all efforts were made by the workman for calling for the relevant records from the Department. The officials who had appeared as workman's witnesses were indeed appearing to prove the records which was called for by the workman and the said record having been summoned by the Court were being produced by those witnesses. Their statements were based on records and if the relevant records which had been called for on the request of the workman by the Labour Court were not produced by the officials of the Department, the onus of the workman having been discharged, an adverse inference has been rightly drawn by the Labour Court against the Management and, therefore, does not call for any interference by this Court. He further submits that the findings as recorded by the Labour Court are based upon the settled principles of law and, therefore, the award deserves to be upheld. C.W.P.No.2741 of 2009 -3- I have heard counsel for the parties and have gone through the records of the case. A perusal of the impugned award would show that indeed the witnesses who were appearing on behalf of the workman were making their statements before the Court on the basis of the records called for by the Labour Court. In their statements before the Labour Court which were made on the basis of the records available on the file, WW-3, namely, Om Parkash, WPO Office of XEN PH Division No.2, Bhiwani, had stated that the original copy of the attendance register Exhibit W-3 was not available. Similarly, WW-4 Kailash Chander SDC office of SDE PH Sub Division No.2, Bhiwani has in his statement stated that the log books from 1.1.1998 to 15.10.1998 and then from 13.9.1999 to 14.1.2001 were not available. These documents were the relevant documents as the workman had claimed that he had worked with the Management for the said period. Further, the Management witness i.e. Subhash Chander SDE Office of XEN Water Supply, Bhiwani, who appeared as MW-1 has also stated that he could not say whether the petitioner had continuously worked from 1.1.1997 to 14.1.2001 with the Management. However, WW-3 Om Parkash in his statement categorically admitted that the workman had worked with him from 1.1.1998 to 14.1.2001 continuously. In this view of the matter, the evidence which has been produced by the workman in itself shows that the workman has completed more than 240 days in the 12 preceding months and, therefore, no adverse inference was required to be taken in the present case in view of the categoric admission of the official under whom the workman had performed his duties. Further, the summoned official records which have not been C.W.P.No.2741 of 2009 -4- produced as the same were stated to be not available i.e. the attendance register W-3 and the log book for the period 1.1.1998 to 15.10.1998 and then from 13.9.1999 to 14.1.2001 were the documents which could have determined the days the workman had put in prior to his date of termination and, therefore, an adverse inference has rightly been drawn against the Management. The findings, therefore, recorded by the Labour Court are fully justified and do not call for any interference. Faced with this situation, counsel for the petitioner contends that the appointment of the workman was on daily wage basis and not on regular basis and was, therefore, not in consonance with the statutory rules governing the service. He further contends that the reinstatement of the workman as has been ordered by the Labour Court cannot be sustained as he has been ordered to be reinstated on a public post which is against the requirement of law in view of the judgments of the Hon'ble Supreme Court in the cases of Ghaziabad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748, Uttranchal Forest Development Corpn. vs. M.C.Joshi, (2007) 2 SCC (L&S) 813, State of M.P. and others vs. Lalit Kumar Verma, (2007) SCC 575 wherein it has been held that for appointment to a public post, statutory rules and the Scheme as envisaged under Articles 14 and 16 of the Constitution of India have to be complied with. In absence of the pleadings to this effect by the workman and further the production of the muster rolls which has been held to be the basis for determining the period of work put in service by the workman with the C.W.P.No.2741 of 2009 -5- Management, it is amply proved that the workman was appointed on daily wage basis. Counsel for the respondent-workman contends that the assertion that the appointment of the workman was not in accordance with the statutory rules, has not been raised either in the reply to the claim statement or before the Labour Court. He, therefore, contends that this plea cannot be raised for the first time in this Court nor have the Rules been pointed out which have not been complied with. I have given my thoughtful consideration to the submissions made by the counsel for the parties. The principles as laid down by the Hon'ble Supreme Court, reference whereof has been made by the counsel for the petitioner as recorded above, clearly show that on a public post, reinstatement cannot be ordered unless the appointment of the workman is in consonance with the statutory rules. If a workman has to claim a benefit in accordance with law, he has to make an assertion to that effect and prove that his appointment was in accordance with the statutory rules. A perusal of the claim statement shows that it has not been even stated in the claim statement that the appointment of the workman was on regular basis or against a sanctioned post. What has been stated therein is that he was appointed on 1.1.1997 as Pump Operator. However, the response to the claim statement filed by the Management, clearly indicates that the appointment of the workman was made on muster rolls i.e. casual labour, which assertion has not been rebutted by the workman either in his rejoinder or before the Labour Court. In this view of the matter, the only conclusion which can be C.W.P.No.2741 of 2009 -6- drawn is that the appointment of the workman was not in consonance with the rules nor was it against a sanctioned post on which the workman could be ordered to be reinstated. The Rules governing the service on a public post are statutory in nature which has the force of law, when the same asserted to have not been complied with at the time of making the appointment, merely because the name of the Rules have not been mentioned, would not bring the initial appointment within the ambit of the statutory requirement of having fulfilled the mandate of the Rules. The appointment of the workman not being in consonance with the requirement as envisaged under the judgments passed by the Hon'ble Supreme Court referred to above, the impugned award dated 9.6.2008 (Annexure P-5) cannot be sustained. There is no dispute that as per the findings of the Labour Court, the provisions as contained under Section 25-F of the Act stood violated and the termination of the services of the workman was not in accordance with the Act. In the light of the judgment of the Hon'ble Supreme Court in the case of District Telecom Manager and others vs. Keshab Dev, 2008 (4) S.C.T.33 and a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788, the workman deserves to be granted compensation. In view of the above, the impugned award dated 9.6.2008 (Annexure P-5) passed by the Industrial Tribunal-cum-Labour Court, Rohtak, is hereby set aside. However, the workman is held entitled to compensation of Rs.40,000/- to balance the equities between the parties. A direction is issued to the petitioners to release the amount of compensation C.W.P.No.2741 of 2009 -7- within a period of two months from the date of receipt of certified copy of this order. At this stage, counsel for the respondent-workman submits that in compliance with the order passed by the Labour Court the workman has been reinstated in service and he is continuing as such. He submits that he would make a representation to the petitioner-Department which may be considered sympathetically. In case such a representation is made, the same be considered sympathetically. The writ petition stands disposed of in the above terms. May 05, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No