CWP No. 1927 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 1927 of 2009 Date of decision October 15, 2009 The Divisional Forest Officer, Forest Division, Bhiwani and another. ....... Petitioners Versus The Presiding Officer, Industrial Tribunal -cum-Labour Court, Rohtak and another. ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. D. S. Nalwa, Additional Advocate General, Haryana for the petitioner. Mr. Vijey Guleri, Advocate for respondent No.1. **** 1. Whether reporters of local newspapers 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. The award of the Labour Court that is challenged before this Court is one of direction for reinstatement and back wages. The action before the Labour Court was at the instance of the workman on a complaint that he had been employed as a Beldar in July, 1994 and he was terminated from service in December, 1999. The Management refuted the contention and stated that the workman had worked only up to February 1996 and later he failed to present himself for work. Before the Labour Court the Management had produced the muster roll for the period from July, 1994 to January 1996 and for non-production of the record CWP No. 1927 of 2009 2 during the relevant time from 1996 to 1999 when the workman was claiming that he was working. The justification by the Management was that the documents had been produced before some other Court. 2. The Labour Court did not accept the explanation given by the Management and drew an adverse inference from non- production of the records and held that the workman had completed more than 240 days that he had been illegally terminated in December, 1999 as contended by the workman. On such basis the workman was directed to be reinstated with back wages. As regards the adverse inference drawn by the Management, learned counsel for the State would submit that in a case where the Management had claimed that records had been sent elsewhere in some other proceedings that ought to have taken as valid justification. I reject such a contention for if the records had been sent somewhere else, no details of where the records had been sent were given in the Court. Even if the records had been produced before some other Court, the Management ought to have taken steps for production of records by duly summoning the same. Non-production of original records did not come within the inability of the party to produce as contemplated under Section 65 of Indian Evidence Act. Adverse inference which was drawn by the Labour Court under the circumstances was perfectly justified. I affirm the finding of the Labour Court that the workman had worked till December, 1999 and that he had 240 days of continuous service before his retrenchment. The termination was therefore, not in accordance with law. 3. Even while finding that there had been no compliance of statutory provisions, the entitlement of the workman to obtain reinstatement shall always depend on the nature of employment, the availability of work and other factors like the manner of entry into service and continuation in employment. Although, no objection had been taken before the Labour Court that the recruitment had been in violation of CWP No. 1927 of 2009 3 any statutory rules, such a contention was made before this Court through an additional affidavit. Since the matter pertains to public appointment, I deem it appropriate to allow such a pleading to come. If it were to be seen that the appointment had been done de hors the rules, the workman shall not be entitled to direction of reinstatement. Learned counsel referred to Haryana Forest Department Rules, 1998 which states through rule 5 that no person shall be appointed to the post otherwise by direct recruitment. The learned counsel himself admitted to the inapplicability of 1998 Rules, since the workman had been admittedly appointed before 1998. Punjab State (Class Iv) Service Rules, 1963 was alone applicable. Rule 6 sets out the method of appointment. The relevant rules are in Rule 6 (1) stipulates direct appointment as one of the modes of appointment. Section 2 (a) defines direct appointment as an appointment made otherwise than by promotion. The classes of persons who are required to be appointed through these rules do not any where prescribe that daily rated workers shall not be appointed or that they shall be done through any particular process at variance with how the particular workman had been appointed. The contention of the learned counsel appearing on behalf of the State that there had been no advertisement or that the employment was not routed through the employment exchange and therefore the appointments were in violation of Article 14 and 16 of the Constitution have no basis. An attempt to fill up a lacuna for the lack of pleading before the Labour Court terming the employment to be in violation of the rules was sought to be filled up through an additional affidavit but the 1963 Rules do not prescribe any particular mode for engagement of daily workers. The direction of reinstatement under the circumstances, in my view was perfectly justified. 4. It appears that subsequent to the order of the Labour Court, the workman has been reinstated and he continues in employment. The Labour Court has awarded 50% back wages which CWP No. 1927 of 2009 4 again is appropriate and I do not think there is any scope for interference. The writ petition is dismissed. No costs. (K. KANNAN) JUDGE October 15, 2009 archana