IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 11489 of 2006. Date of Decision : February 10, 2009. M/S Ghai Rubber India .... Petitioner. Versus. Dev Raj and another. ...Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Sandeep Arora, Advocate, for the petitioner. Mr. Ishwar Lal, Advocate, for the respondent. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 02.06.2004 (Anneuxre-P-1), passed by the Labour Court, Jalandhar, wherein the reference was answered in favour of the respondent/workman holding him entitled to 40 per cent back wages, continuity of service and all other consequential benefits. Counsel for the petitioner firm contends that the onus to prove that the respondent-workman was an employee of the petitioner firm was on the respondent-workman and further to prove that he had completed 240 days with the petitioner firm in the preceding 12 months from the date of his alleged termination. The respondent-workman has not produced any evidence except for his statement claiming therein a piece rated worker with the petitioner firm nor any supportive evidence in the form of documents or C.W.P. No. 11489 of 2006. oral evidence has been produced by the respondent-workman which would show that he has as a matter of fact worked with the petitioner firm. On the other hand, he contends that the respondents have examined Shri Varinder Kumar, Partner of the petitioner firm who brought the attendance and wage register, E.S.I. Register from 1994-95 to 1997-98 which have been exhibited before the Labour Court which shows that the respondent-workman was never employed with the petitioner firm. In the E.S.I. Return, the name of the respondent-workman does not find mention. He contends that an adverse inference has been wrongly drawn by the Labour Court against the petitioner without there being a specific prayer on behalf of respondent- workman to produce the records. There is no clear finding that the workman has worked with the petitioner firm. It was for the respondent- workman to produce some cogent evidence to show that he has worked with the petitioner firm. Counsel for the respondent/workman submits that there is a delay of two years in filing the present writ petition which would be fatal for the petitioner firm as no cogent reason for filing the delayed writ petition has been given. He further contends that the best evidence which was available with the petitioner but the petitioner has failed to produce the same before the Labour Court and therefore, the Labour Court has rightly drawn an adverse inference and proceeded to decide the reference in favour of the workman. I have heard counsel for the parties and have gone through the records of the case. It is a case where the petitioner firm has at the very outset denied that there was a relationship of employer and employee between the petitioner firm and the workman. The relevant documents -2- C.W.P. No. 11489 of 2006. which would have suggested and proved that the respondent-workman was not in employment with the petitioner firm have been produced before the Labour Court which was in the form of attendance and wage register and E.S.I. Register for the relevant period. None of these documents reflect that the respondent-workman had worked with the petitioner firm. The onus in such a situation was on the respondent-workman to prove (i) that the relationship of employer and employee; and (ii) that he had worked for 240 days in the preceding 12 months from the date of his termination with the petitioner firm which would entitle him to benefit under Section 25-F of the Industrial Disputes Act. The onus was therefore, heavily on the respondent- workman, but the he has failed to discharge. Hon'ble the Supreme Court in the case of Range Forest Officer Versus S.T. Hadimani, 2002(3) Supreme Court Cases, 25, in para-3 held as follows :- “3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an “industry” or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or -3- C.W.P. No. 11489 of 2006. order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside.” Thereafter, Hon'ble the Supreme Court in the case of Rajasthan State Ganganagar Mills Limited Versus State of Rajasthan 2004 (8) S.C.C. 161, and in the case of R.M. Yalleti Versus The Assistant Executive Engineer, 2006(1) S.C.C. 106, has reiterated the same position and has held that the onus is on the respondent-workman to prove not only by his own affidavit and oral submissions but to prove it by way of producing certain documents which would show that the respondent-workman had been employed by the employer. In the present case, the respondent-workman having failed to discharge his onus, the award dated 02.06.2004 (Anneuxre-P-1) passed by the Labour Court, Jalandhar, cannot be sustained, and therefore, deserves to be set aside. The next contention which has been raised by counsel for the respondent-Workman that there is delay in filing the present writ petition, also cannot be taken as a ground in itself in view of the fact that the relationship of master and servant has not been established and in case the interference in such like cases is not done by the Court, the illegality which has been committed would continue. There is no inordinate delay in challenging the award which would preclude interference by this Court in this case. Therefore, this contention of counsel for the respondent-workman also deserves to be rejected. -4- C.W.P. No. 11489 of 2006. In view of the above, the present writ petition is allowed, the award dated 02.06.2004 (Annexure-P-1), passed by the Labour Court, Jalandhar, is hereby set aside. (AUGUSTINE GEORGE MASIH) JUDGE February 10, 2009. sjks. -5-