1 WP3167/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3167 OF 2010 1 The Chairman, The Maharashtra Godavari Gramin Bank (Now Maharashtra Gramin Bank), Head Office Shivajinagar, Nanded Petitioners 2 The Branch Manager, The Maharashtra Godavari Gramin Bank (Now Maharashtra Gramin Bank), Branch at Golapangri, Taluka and District Jalna V E R S U S Santosh s/o Limbaji Dhande, Aged 29 years, Occupation Nil, Resident of Daithana, Taluka Ghansawangi, District Jalna Respondent Mr. S.V. Natu, Advocate for the petitioners Mr. N.R. Salunke, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 6th May, 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent, this writ petition is taken up for final hearing. 2. This petition is filed under Articles 226, 227 of the Constitution of India in order to challenge the Judgment and order dated 16th February, 2010, passed by the learned Member of Industrial Court, Jalna, in Revision (ULP) No. 41 of 2009. 3. It is common ground that the respondent was working with the petitioner-bank on daily wages as a Messenger during the period 12th April, 1999 till 1st February, 2004. After 1st February, 2004, the petitioner-bank stopped giving the respondent work. The respondent therefore made a complaint alleging unfair labour practice in the Labour Court, Jalna. He 2 WP3167/10 contended that he could not have been retrenched without following due process, because he had worked for more than 240 days during the preceding one year. He also alleged that after he was retrenched illegally, the other Messenger, junior to him, was continued. The respondent asserted that if at all there was need to retrench one of them, the petitioner- bank should have retrenched the junior Messenger. The Labour Court dismissed the complaint holding that the respondent failed to prove his case on both the counts, mentioned above. However, the learned Member of the Industrial Court, after perusing the evidence on record, held that the respondent has proved both the above mentioned facts. 4. As said above, the main bone of contention on facts between the parties was, whether the respondent had worked for 240 days during the preceding one year ? The respondent came with a case that after lodging the complaint, he went to the petitioner-bank utilizing his rights under Right to Information Act, 2005, and requested the petitioner-bank to give him documents, such as remittance-register to show that certain payments were made to him as his wages. Admittedly, the petitioner-bank refused to divulge this information, saying that it would not be in the public interest to do so. The respondent even applied to the Court seeking direction to the petitioner-bank that they should produce the remittance-register of the relevant period. To this, the petitioner-bank simply denied having the remittance-register in their possession. The learned Member of the Industrial Court utilizing these circumstances, drew an adverse inference and held that the petitioner-bank was purposely avoiding to produce the remittance- register. Presumption as to adverse inference for non-production of evidence is optional and it mostly depends on facts of each case. I think, the facts of 3 WP3167/10 this case justified in drawing of adverse inference against the petitioner- bank. 5. There is one more lapse on the part of the petitioner-bank. While the matter was before the learned Labour Court, the petitioner-bank examined a witness, who did not have any personal knowledge in respect of facts of the case. This witness admittedly was not working in the branch during the relevant period and was transferred to the branch at least four years after the alleged illegal retrenchment. So there practically no evidence given by the petitioner in this case. As regards the assertion that a junior was continued as daily wage Messenger, the learned Member of the Industrial Court rightly pointed out that this fact has not been denied by the petitioner-bank when the evidence was recorded. I do not find any error on the part of the learned Member of the Industrial Court while allowing the complaint. In any case, the impugned order is quite innocuous. It simply directed the petitioner-bank to restore the status-quo ante. The petitioner-bank is now under obligation to provide the respondent, work as ‘daily wage Messenger’ as and when the work is available. In view of above, writ petition stands dismissed. Rule is discharged. ( A.V. NIRGUDE, J. ) SRM/wp3167/10/6/5/11/ok