CWP No. 10875 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 10875 of 2009 Date of decision: 10.02.2010 The Divisional Forest Officer (Territorial), District Bhiwani ...... PETITIONER VERSUS Nepal Singh son of Chhatu Singh and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioner. Mr. Deepak Sonak, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present petition is for quashing of the Award dated 16.01.2008 (Annexure P-1) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement in service on his previous post with continuity thereof and 50% back wages from the date of demand notice i.e. 30.03.1999. CWP No. 10875 of 2009 2 Counsel for the petitioner submits that valid reasons have been assigned by the workman witness Sh. Raj Kumar, Forester, O/o Divisional Forest Officer (T), Bhiwani (WW-2) for non-production of the records as he had stated that the records have been damaged during the flood. He submits that the adverse inference drawn by the Labour Court against the Management cannot, therefore, be sustained as valid and justifiable reasons have been given by the Management for non-production of the records. In any case, he submits that the findings, as recorded by the Labour Court, even if taken to be correct, still the workman would not be entitled to reinstatement in service but at the most, would be entitled to compensation in the light of the authoritative judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 789. On the other hand, counsel for respondent No. 1-workman vehemently argued that the workman, who is a daily wager, is neither given any appointment letter nor any termination letter. He is fully dependent on the Management to maintain the records. The proper maintenance and safe custody of the records would be the duty of the Management. He had to prove his case before the Labour Court after calling for the records, which the Management was unable to produce. The adverse inference, therefore, drawn by the Labour Court, is fully justified. His further contention is that what has been stated by the witness that the records have been damaged in the flood but no evidence has been led by the Management in support of this assertion as is being sought to be made by the counsel for the petitioner. This stand was also not taken in the reply to the claim statement filed before the Labour Court and, therefore, cannot now be made the basis for non-suiting the workman. He, therefore, CWP No. 10875 of 2009 3 contends that the findings, as recorded by the Labour Court, are fully justified. However, he is unable to controvert the assertion of the counsel for the petitioner that the appointment of the workman was not in consonance with the statutory Rules governing the service and there was violation of Articles 14 and 16 of the Constitution of India. I have heard the counsel for the parties and have gone through the records of the case. The positive case of the workman is that he was appointed as Mali-cum-Beldar in the year 1986 and he continued as such till February, 1995 when his services were terminated by the petitioner-Management. The workman, who is a daily wager, is not given any appointment letter or termination order. He, therefore, does not have any records to substantiate his assertions made in the claim statement. He is fully dependent on the Management for producing the records, who maintains the same and is the custodian of the records. What was expected if and required from a workman is to prove his assertion with regard to his period of work with the Management, which he had done by calling for the relevant records. The witness (WW-2) Sh. Raj Kumar, Forester, O/o Divisional Forest Officer (T), Bhiwani, had stated that the records of Muster Rolls from January, 1986 to February, 1995 concerning the workman are not available in the office and he further stated that he would not be able to produce the same pertaining to Bapora Division in future also. Although he had stated that the records have been damaged in the flood but the respondents have led no evidence corroborating this statement of the workman witness as no evidence has been led by the Management either in support of their contentions in their reply to the claim statement that the workman had himself abandoned the job or to the effect that as a matter of fact the records have been damaged in the flood. CWP No. 10875 of 2009 4 A perusal of the reply filed to the claim statement, which has been placed on record as Annexure P-4, also shows that the petitioner- Management has not taken this ground in their reply that the records were not available as they have been damaged in the flood. It, therefore, appears that the records were intentionally not produced by the Management as they wanted to deprive the workman of his claim which he had made before the Labour Court through the claim statement. The inference, as derived and drawn by the Labour Court that because the Management has not produced the relevant records, therefore, the claim of the workman was justified and correct, is fully in consonance with the settled principles of law. In view of the above, the Award passed by the Labour Court as regards the fact that the service of the workman was terminated without complying with the provisions of the Industrial Disputes Act, is upheld. However, in the light of the fact that the initial appointment of the workman was not in consonance with the statutory Rules governing the service and in violation of Articles 14 and 16 of the Constitution of India, the Labour Court could not have granted the workman reinstatement in service with continuity and back wages. However, since his termination is not in consonance with the provisions of the Industrial Disputes Act, the workman would be entitled to compensation in lieu of reinstatement as has been held by the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33. The workman has worked as Mali-cum-Beldar with the petitioner-Management from January, 1986 to February, 1995, which comes to more than nine years and, therefore, keeping in view the facts and circumstances of the case, the workman is held entitled to CWP No. 10875 of 2009 5 compensation of Rs. 95,000/-. In view of the above, the impugned Award granting the workman reinstatement on his previous post with continuity thereof and 50% back wages from the date of demand notice i.e. 30.03.1999 is set aside. However, he would be entitled to compensation of Rs. 95,000/-. The said assessed compensation be released to the workman within a period of two months' from the date of receipt of a certified copy of this order. Counsel for respondent No. 1 states that as the workman has been reinstated, the workman would make a representation to the petitioner and a direction be given to the petitioner to consider the same sympathetically. In case such a representation is made by the workman, the same be considered and decided by the petitioner-Management in accordance with law. ( AUGUSTINE GEORGE MASIH ) JUDGE February 10, 2010 pj CWP No. 10875 of 2009 6