IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Writ Petition No. 933 of 2007. Judgment Reserved on: 9.5.2008. Decided on: 19.5.2008. _______________________________________________________ Gopal Krishan … Petitioner. Versus State of H.P. and others. … Respondents. _____________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes. For the Petitioner : Mr. Virender Thakur, Advocate. For Respondents 1 & 2 : Mr. Rajinder Dogra, Addl. Advocate General. __________________________________________________________________ Rajiv Sharma, Judge. A Challenge has been laid by the petitioner (hereinafter referred to as the Workman for convenience sake) to the award passed by the Labour Court in reference No. 207 of 2003 decided on 7.12.2006. The brief facts necessary for the adjudication of this petition are that the State Government has made the following reference for adjudication to the Labour Court: “Whether the termination of the service of Shri Gopal Krishan s/o Shri Ratti Ram, a daily wages beldar by the Executive Engineer, Irrigation & Public Health Department, Division Arki, Distt. Solan, H.P. w.e.f. 4.12.1998 without complying the provisions of the Industrial Disputes Act, 1947 and whereas juniors to him are still working as alleged by the workman is proper and justified? If not, to what relief of service benefits the aggrieved workman is entitled to? __________________________________________________________________ Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 In sequel to the reference made by the State Government before the learned Labour Court, the workman had primarily contended by medium of claim petition that he was engaged on 1.1.1992 and worked till 4..12.1998. He also contended in his statement of claim that he was retrenched without following the mandatory provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the Act). His alternative plea before the Labour Court was that the persons junior to him had been retained at the time of effecting his retrenchment. The employer had contested the claim filed by the workman. It was primarily projected by the employer before the Labour Court that the workman was employed on 26.3.1994 and not on 1.1.1992 and he has left the job of his own and no person junior to him had been retained. According to the employer, he had not completed 240 days before his retrenchment. The learned Labour Court dismissed the claim petition vide award dated 7.12.2006. In other words, a reference was made against the petitioner-workman. Mr. Virender Thakur learned counsel for the petitioner had strenuously argued that there is violation of Section 25-F and 25-G of the Industrial Disputes Act, 1947 by the employer. He elaborated his submission by stating that assuming that the workman had not completed 240 days in a block of 12 calendar months preceding his retrenchment since persons junior to him had been retained, he was entitled to protection of Section 25-G of the Act. Mr. Rajinder Dogra, learned Additional Advocate General had supported the award dated 7.12.2006. I have heard the learned counsel for the parties and have perused the record carefully. What has emerged from the pleadings of the parties is that the workman in fact was engaged on 26.3.1994 and not on 1.1.1992. He was retrenched on 31.12.1998. He had completed only 100 days in a block of 12 calendar months preceding his retrenchment. The learned Labour Court had rightly recorded the finding that the workman had not completed 3 240 days to seek the protection of Section 25-F of the Industrial Disputes Act. Mr. Virender Thakur had strenuously argued that the workman had placed sufficient material before the Labour Court as well as this Court by way of supplementary affidavit that number of persons junior to him had been retained while effecting retrenchment of his client. He has referred to the seniority list which was filed before the Labour Court by the workman. He had also referred to the demand notice issued to the employer in the year 2001. The workman was deployed in Arki Division. It is evident from Annexure P-1 dated 27.4.2005 filed with the supplementary affidavit that the workmen, namely; S/Shri Shankar Lal, Bir Singh, Baldev, Balak Ram, Gita Ram, Padam Dev and Kripa Ram were retained though junior to the petitioner. The petitioner, even as per the respondents, was engaged on 26.3.1994. Shri Shankar Lal and others were engaged on 16.5.1995, 1.4.1995, 1.10.1995, 21.1.1996, 1.1.1996, 1.4.1997, 21.3.1995 and 1.12.1997 respectively. The respondents have violated Section 25-G of the Industrial Disputes Act, 1947 by retaining the persons junior to him as is evident from the supplementary affidavit. Mr. Dogra then contended that since the workman had not completed 240 days in a block of 12 calendar months, he is not entitled to protection under Section 25-G of the Act. This question is no more res integra in view of the law laid down by the Hon’ble Supreme Court in Central Bank of India Vs. Satyam and others (1996) 5 SCC-419 as under: “The plain language of Section 25-H speaks only of re- employment of 'retrenched workmen'. The ordinary meaning of the expression 'retrenched workmen' must relate to the wide meaning of 'retrenchment' given in Section 2 (oo). Section 28-F also uses the word 'retrenchment' but qualifies it by use of the further words 'workman........ who has been in continuous service for not less than one year'. Thus, section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words 'workman...... who has 4 been in continuous service for not less than one year'. It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchment while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of 'last come first go' which is not confined only to workmen who have been in continuous service for not less than one year, of ordered by Section 25-F.” In view of the law laid down by the Hon’ble Supreme Court, it is not necessary for the workman to complete 240 days to seek benefit under Section 25-G as well as Section 25-H. In the present case since the respondents No. 1 & 2 were bound to follow the principle of ‘Last Come First Go’ and the petitioner could not be retrenched while retaining the persons junior to him under Arki Division. RW-1 and RW-2, who appeared on behalf of the employer could not answer whether any person junior to the petitioner were working or not. The workman had stated in his statement appearing as PW-1 that persons junior to him were retained. The employer, i.e. the State was granted sufficient time to file rejoinder to the supplementary affidavit filed by the workman. The employer had not availed this opportunity for controverting the contents of the supplementary affidavit. This Court has to draw adverse inference against the employer and had to believe the version of the workman that the persons junior to him as per letter dated 27.4.2005 were retained. Their Lordships of the Supreme Court have held in 2007 (4) SCALE-237, titled M/s Sriram Industrial Enterprises Ltd. Vs. Mahak Singh & Ors. that when best evidence is with-held, the High Court is 5 entitled to draw adverse inference. Their Lordships of the Supreme Court have held as under: “Mr. Viswanathan urged that the workmen had produced whatever documents were in their possession, such as, attendance cards, wage slips, bonus slips, provident fund deduction slips from 1991 onwards and since other relevant documents such as attendance registers and muster rolls were with the petitioners, the workmen filed an application for summoning the said documents which were, not however, produced by the petitioner on account whereof the High Court was compelled to draw an adverse presumption in terms of Section 114, Illustration (g) of the Evidence Act. The said approach, in our view, was erroneous in view of the decision of this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. (supra). The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an adverse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise. In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6 N read with Section 2 (g) of the U.P. Act which is applicable to these petitions. Having correctly interpreted the provisions of Section 6 N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer's case (supra) were watered down by the subsequent decision in R.M. Yellatty's case (supra) and in our view the workmen had discharged their initial onus by production of the documents in their possession.” Consequently, in view of the observations made hereinabove, the writ petitioner is partly allowed. The findings recorded by the learned Labour Court that the Workman had not completed 240 days is upheld. However, findings recorded by the Labour Court that there was no 6 violation of Section 25-G of the Industrial Disputes Act, 1947 is set aside. The award dated 7.12.2006 is accordingly modified and the retrenchment of the workman is declared void ab initio being in violation of Section 25-G of the Industrial Disputes Act, 1947. The workman is entitled to all the consequential benefits. No costs. (Rajiv Sharma) Judge. May 19, 2008. (cr)