CWP No. 17298 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 17298 of 2003 Date of decision: 04.05.2009 State of Haryana through Executive Engineer, Construction Division No. 17, Karnal .....PETITIONER VERSUS Satpal s/o Sh. Ram Chander of Village Taraori, District Karnal now R/o H.N.No. 3503, Model Town, Near Janta School, Jhansa Road, Kurukshetra ..... RESPONDENT CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Additional Advocate General, Haryana, for the petitioner. Mr. Sanjiv Gupta, Advocate, for the respondent. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 02.05.2003 (Annexure P-4) passed by the Industrial Tribunal-cum-Labour Court, Panipat, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement with continuity of service and 50% back wages from the date of demand notice i.e. 10.01.2001. CWP No. 17298 of 2003 2 As per the statement of the workman himself, he was appointed as Beldar on 16.12.1978 and he worked till 31.05.1983 with some notional breaks. He met with an accident on 31.04.1983 while performing his duties and he was shifted to Civil Hospital, Karnal where he remained under continuous treatment for the injuries sustained by him in the accident for five months but he could not be completely cured of the injuries. He sustained brain injury due to accident and lost his mental equilibrium. He, thereafter, in the year 1985, reported for duty in the office of the Executive Engineer but he was not allowed to join. He pleaded that no notice or compensation was ever paid to him before disallowing him to join the service and, therefore, the provisions as contained in Section 25-F of the Industrial Disputes Act (hereinafter referred to as 'the Act') have been violated as no enquiry was held nor any charge-sheet was issued to the workman. It has further been pleaded by the workman that his juniors were retained in service by the Management. He, on the basis of this factual submissions, contends that even if the contention, as raised by the workman, is accepted that in the year 1985, the workman had reported for duty and he had not been allowed to join duty, the cause of action arose to the workman in the year 1985, when, according to him, industrial dispute would arise. The workman, for the first time, raised the industrial dispute by way of making a demand on 10.01.2001. He contends that there is an inordinate delay of about 16 years in making such a demand or claiming a dispute, which should be referred to the Labour Court for adjudication. He contends that it is a delayed claim, which has been put forth by the workman and no explanation whatsoever has come forth for such a delayed demand. He further contends that for a dispute to be referred, there must exist one, CWP No. 17298 of 2003 3 which he says, with the passage of time and that too after a delay of 16 years, none could be said to have been in existence. On the other hand, he submits that it is an admitted position that the workman did not report for duty from 31.05.1983 till the year 1985. According to the workman's own pleadings, he was treated for five months and, therefore, he should have reported for duty thereafter. He contends that there was no termination of the services of the workman and in fact, it was an abandonment of services. He further submits that the workman failed to point out and name his juniors, who had been retained in service, in his demand notice and the Labour Court had only proceeded to decide the reference in favour of the workman taking an adverse inference on the ground that the seniority list was not produced before the Labour Court. He submits that onus was on the workman to prove that persons junior to him had been retained in service and nothing has been shown that any effort was made by the workman to prove that persons, who were juniors to him, have been retained in service either by naming them or by producing any documentary record to that effect. He further contends that the minimum, which was expected of the workman to discharge his onus, was to call for the seniority list from the Management, that having not been done, the onus, which was on the workman, has not been discharged and, therefore, the adverse inference has been wrongly drawn by the Labour Court against the Management. He, on this basis, submits that the award passed by the Labour court, which has been impugned herein, cannot be sustained and deserves to be set aside. On the other hand, counsel for the respondent-workman contends that there is no limitation prescribed under the Industrial Disputes Act for making a demand by the workman or for making a reference by the appropriate Government. He submits that delay alone cannot be CWP No. 17298 of 2003 4 treated as a ground to defeat the claim of the workman. He relies upon the judgment of this Court in the case of HMT Limited, Pinjore, Tehsil Kalka, District Ambala vs. State of Haryana and others, 2009 (1) SCT 596 to contend that delay alone cannot be a ground to hold that the reference was bad. He contends that in case, the reference was not in consonance with the Act, the Management should have challenged the said reference at the appropriate time and at this belated stage, they cannot take this objection. In response thereto, counsel for the petitioner submitted that an objection with regard to non-maintainability of the reference on the ground of delay was taken before the Labour Court itself but the Labour Court had not adjudicated thereupon and the only remedy available to the Management is to challenge it in the present proceedings. Counsel for the respondent contends that to attract the provisions, as contained under Section 25-G of the Act, completion of 240 days in service is not essential. He contends that the seniority list was required to be maintained by the Management, which they failed to produce before the Labour Court and, therefore, the findings, as recorded by the Labour Court, are fully justified and the adverse inference as recorded against the Management was as per the provisions applicable to the proceedings. He relies upon the judgment of this Court in Ramesh Chander vs. State of Haryana through Secretary to Govt. Haryana, Public Health Department, Haryana, Civil Secretariat, Chandigarh and others, 2008 (4) RSJ 751. He further submits that no notice was issued to the workman that he has abandoned the job. He contends that in case the question of abandonment of the services of the workman was taken to be correct, then enquiry against the workman was mandatory, which admittedly has not been held. CWP No. 17298 of 2003 5 I have heard the counsel for the parties and have gone through the records of the case. The facts, as enumerated above, are not in dispute with regard to the appointment of the workman i.e. 16.12.1978 and his continuance in service up to 31.05.1983. The counsel for the workman contends that the services of the workman were terminated as he was not allowed to join, whereas the counsel for the petitioner contends that the services of the workman were not terminated and, therefore, as per his own admission, that the workman, after the accident, was taking treatment for five months and did not report for duty immediately but only in 1985 i.e. after 1 ½ years. The contention, as raised by the counsel for the petitioner, has to be looked into from the point of view that although the workman was a work-charged employee but still he was required to report for duty. In case, he was not well, it was required of him to intimate the Management to that effect. Nothing has come on record that the workman was indeed not able to come to duty because of the accident, which took place on 31st April, 1983. That being so, it can be said that the workman had abandoned his services but that should not detain this Court for long, as there is no explanation whatsoever for the delay in making the demand notice dated 10.01.2001, when according to the assertion of the workman himself, he was not allowed to join service in the year 1985. This delay is fatal to the claim of the workman. It is true that the delay in itself would not be a ground for not making a reference but nevertheless the basic requirement under Section 10 of the Act is the existence of the dispute. The claim of reinstatement, as has been made by the workman, because of the elapse of time, loses its relevance as in the present case, there is a delay of about 16 years in making such a demand. There is nothing on record to suggest that any effort, after the year 1985, was indeed made by the workman to CWP No. 17298 of 2003 6 claim his reinstatement in service. With the passage of time, the claim, if any, of the workman, had been rendered as a stale claim and so has the dispute ceased to exist. The Hon'ble Supreme Court in the case of Nedungadi Bank Ltd. vs. K.P.Madhavankutty and others, (2000) 2 Supreme Court Cases 455 and thereafter, in the judgment of U.P. State Road Transport Corporation vs. Babu Ram, (2006) 5 Supreme Court Cases 433 has held that although no time has been prescribed for the appropriate Government to exercise its powers under Section 10 of the Act but the same are not to be exercised at any time and that too to revive the matters, which had already been settled. The power of reference by the appropriate Government is accepted but the same is required to be exercised in a reasonable manner. The observations of the Hon'ble Supreme Court are in consonance with the practical situation, wherein after elapse of time, the records, reliance whereof would be required by the parties for adjudication of the issues, may not be available at a belated stage. There can also be situations where a person, who would make a claim after a long delay intentionally merely because the records are not available with the Management and take undue benefit of such non- availability of records. Therefore, the insistence is on an explanation and that too reasonable, if any, to such belated demand being made. In the present case, no such explanation has come forth what to say reasonable and in its absence, there is nothing on record, which would persuade this Court to come to a conclusion that there existed an industrial dispute, when the reference was made. The judgment relied upon by the counsel for the petitioner in the case of HMT Limited, Pinjore, Tehsil Kalka, District Ambala (supra) is distinguishable on facts, as in that case, immediately after the service of the workman was terminated, he had preferred a demand notice, wherein conciliation proceedings were taken and during CWP No. 17298 of 2003 7 the conciliation proceedings, the workman preferred a Civil Suit, which was decreed in his favour, on an appeal preferred by the Management, the said decree was set aside and thereafter, an appeal preferred by the workman by way of Regular Second Appeal before this Court, the workman was relegated to the remedy of industrial law. In those circumstances, an explanation to the delay was very much available and, therefore, the judgment would not be of any help to the workman in the present case. Thus, in the light of the above facts and the law as laid down by the Hon'ble Supreme Court in the case of Nedungadi Bank Ltd. (supra) and U.P. State Road Transport Corporation (supra), there existed no industrial dispute reference whereof was called for by the appropriate Government while exercising its powers under Section 10 of the Industrial Disputes Act, 1947. As regards the non-compliance of the provisions of Section 25- G of the Act is concerned, it goes without saying that the onus to prove an assertion is on the party making such claims. In the present case, the claim that juniors to the workman were being retained was made by the workman himself. It is not in dispute that no names of any of the juniors to the workman were mentioned in the demand notice or before the Labour Court during the statement made therein by the workman. A bald statement that juniors to him had been retained in service would not serve the purpose nor the onus stood discharged. The requirement of law was that the workman should have made a positive assertion with regard to the persons junior to him having been retained in service and to prove his assertion to be correct, should have called for the records of the Management. A party cannot stand on the clutches of the Management without making a request to the Court for production of records and cannot take the benefit that the records are available with the Management and CWP No. 17298 of 2003 8 non-production thereof should be taken to draw an adverse inference against the Management. If a request is made to the Labour Court for production of records and if then the Management is unable to produce the said records, adverse inference has indeed got to be drawn by the Court for such non-production of records. The position in the present case is converse. No request has been made by the workman to the Labour Court for production of records. No assertion has been made or details of the juniors, who have been retained in service, have been given nor any records or documents produced to prove the said assertion. That being so, the findings, as recorded by the Labour Court on the question of non- compliance of Section 25-G of the Act, cannot be sustained and hereby set aside. In view of the above, the present writ petition is allowed. The impugned award dated 02.05.2003 (Annexure P-4) passed by the Industrial Tribunal-cum-Labour Court, Panipat, is hereby set aside. ( AUGUSTINE GEORGE MASIH ) JUDGE May 04, 2009 pj Whether referred to Reporters........................Yes/No.