CWP No.10885 of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10885 of 2000 DATE OF DECISION: November 13, 2009 BALI SINGH ...PETITIONER VERSUS STATE OF PUNJAB AND OTHERS ...RESPONDENTS Present: None for the petitioner. Ms.Monica Chhibbar Sharma, DAG Punjab 2. CWP No.2441 of 2002 BALI SINGH ...PETITIONER VERSUS STATE OF PUNJAB AND OTHERS ...RESPONDENTS Present: Ms.Anita Sharma, Advocate for the petitioner. Ms.Monica Chhibbar Sharma, DAG Punjab CORAM: HON'BLE MR. JUSTICE K.KANNAN. ***** K.KANNAN, J.(ORAL) 1. The above two writ petitions have been filed between the same parties and address facts which raise the issue relating to appointment of the workman as a Driver with the Block Development and Panchayat Officer, Punjab. The contention of the workman in C.W.P. No.2441 of 2002 was that he had been appointed on 23.11.1995 and remained employed till 26.8.1996 and that he was terminated from service illegally and without following the mandate of Section 25-F of Industrial Disputes Act, 1947. The contention before the Labour Court by the Management was that the workman had been employed on leave vacancy on CWP No.10885 of 2000 -2- DC rates by letter dated 27.6.1996 and when the regular employee had joined the service, the workman was removed from the service. 2. The workman had produced photocopies of the log-sheet of the particular vehicle he was said to be driving between 23.11.1995 to 26.8.1996 and which contained his signatures. The documents could not be, however, exhibited as evidence since only copies have been filed. An application had also been filed before the Labour Court for leading additional evidence and to summon the original records which was disposed of by the Labour Court on 17.7.2001, observing that the workman had availed himself several opportunities and there was no justification to permit the petitioner to reopen the case for bringing additional evidence. The Management had opted not to give any oral evidence and contented by filing a written statement denying the engagement between the parties as claimed by the workman. 3. The Labour Court found that he had been engaged only for a period from 27.6.1996 and that the workman had failed to establish his continuous period of service for 240 days. Reference was therefore rejected. Even earlier, the claim that the workman had not been paid for the period during which he had worked through an application under Section 33-C (2), was allowed only partially finding that he had proved that he had worked only for 2 months and ordered for wages Rs.3600/- for two months i.e. 27.6.1996 to 28.8.1996. The order which was passed on 25.5.2000 is the subject matter of an independent writ petition in CWP No.10885 of 2000. 4. Any interim order passed by the Labour Court shall also be open to challenge in the very same writ petition which assails the final order. The rejection of the application for leading the additional evidence by the interim order passed by the Labour Court on 17.7.2001 is also bound to be examined for its correctness. The application for leading additional evidence was on the basis of assumption by the workman that Mark-'C' 1 to 34 could not be taken as evidence CWP No.10885 of 2000 -3- for want of proof. The workman was also under the belief that in the absence of original documents, the photocopies could not be taken as true. The photocopy of document is doubtless secondary evidence as contemplated in Section 63 (2)of the Evidence Act, 1872 which says that copies by mechanical process which in themselves insure the accuracy of the copy and copies compared with the original are secondary evidence. If documents Mark-'C' 1 to 34 are seen as secondary evidence, the next relevant consideration shall be, in what case secondary evidence relating to such documents should be given. Section 65 (a) provides that when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved and then after notice mentioned in Section 66, such person does not produce, secondary evidence could be given. Section 66 sets out due procedure relating to notice and makes a proviso that even such notice shall not be required when the document sought to be proved itself is a notice or when from the nature of the case, the adverse party must know that he will be required to produce it. While evidence was adduced with reference to whether the workman had worked during the period which he claimed and the Management was putting in a rival contention that he had worked only for two months in a leave vacancy, the Management was bound to know that it was required to produce the documents which they had in their custody. It was not the contention of the Management that there were no log-sheets for the vehicle. If they did not produce, the obvious inference was that if it was produced, it would be adverse to them. Even in the application for leading additional evidence, the objection by the Management was not that such documents did not exist. The objection, on the other hand, was that the workman had availed to himself several opportunities and he shall not be permitted to lead additional evidence. I have already observed that the requirement of additional evidence was unnecessary and the documents which were produced by Mark-'C' 1 to 34 ought to have been assigned Exhibit numbers and marked as such. I take on file the documents CWP No.10885 of 2000 -4- Mark-'C' 1 to 34 as documents validly proved in the manner required under the Evidence Act. 5. If the documents are to be taken as validly proved, it shall be taken that the workman had completed 240 days of continuous service. The Management admittedly had not made compliance of Section 25-F of the Industrial Disputes Act and therefore, the termination effected was bad. 6. The issue still persists whether the workman is entitled for reinstatement for violation of Section 25-F. It is often observed and laid down authoritatively that the mere violation of Section 25-F will not entitle the workman for reinstatement. The contention on behalf of the Management was contained in the written statement that he was appointed on leave vacancy on 27.6.1996. On the other hand, the available evidence shows that the workman had been employed ever since 23.11.1995. The subsequent letter dated 27.6.1996 although not filed before the Labour Court, copy of the letter has been filed before this Court as an exhibit R-I along with written statement by the Management. Document dated 27.6.1996 reads as under:- “Sh.Bali Singh son of Dasaundha Resident of Faphre Bhai Ke Distt. Mansa who was working as Driver of Jeep of this office at his own risk and free for last long time is appointed on daily wages. He shall be paid as per D.C. Rates. If he agrees with the condition he shall submit the joining report to this office.” This letter does not state that the Driver appointed by the Management was only on leave vacancy. 7. The workman was terminated from 28.8.1996 and for all the period when the workman did not work, it shall not be possible to grant to the workman all the back-wages. In my view, providing for fifty percent of the back-wages will accord with justice. CWP No.10885 of 2000 -5- 8. The award of the Labour Court, insofar as it rejected the claim and reference for reinstatement is set aside and the workman shall be entitled for reinstatement with continuity of service and fifty percent back-wages. CWP No.2441 of 2002 is allowed . 9. CWP No.10885 of 2000 which addresses the issue of full wages during the period when he was working, is also allowed, consistent with my finding that the workman had been employed from 23.11.1995. The order of the Labour Court is modified to provide for the claim sought for by the workman for the remaining period of service also. The order of the Labour Court dated 24.5.2000 is modified and writ petition is allowed as prayed for. No costs. NOVEMBER 13, 2009 (K.KANNAN) Vt JUDGE