IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10112 of 2009 Date of Decision : March 31, 2010. The Divisional Forest Officer (Territorial) Bhiwani ...... Petitioner. Versus. Smt. Maya Devi and others. ..... 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). The petitioner has challenged the Award dated 12.02.2008 (Annexure-P-1), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, (hereinafter referred to as “the Labour Court”), wherein it has held that the termination of respondent No. 1/Worklady (hereinafter referred to as “the Worklady”), to be illegal and, therefore, holding her entitled to reinstatement with continuity of service and 50% back wages from the date of her demand notice, i.e., 11.09.2000. Counsel for the petitioner/Management (hereinafter referred to as “the Management”), contends that the adverse inference, which has been drawn against the Management, is not justified. He contends that, although, the claim of the Worklady was that she was appointed as a Beldar-cum-Mali on 15.07.1987 and she worked continuously with the Management till 31.08.1999, when her services were termination by it, but the stand of the Management before the Labour Court was that she was appointed in July, 1988 and she continued to work with it till October, 1994, when she C.W.P. No. 10112 of 2009. -2- abandoned the job. He contends that the records pertaining to the period for which the assertion made by the Management that the Worklady had worked with it, was produced before the Labour Court and thus the Labour Court should have firstly considered this aspect and also should have taken into consideration and decided the issue with regard to the abandonment of service by the Worklady as was asserted by the Management. He contends that no finding has been recorded nor the said issue has been considered by the Labour Court, therefore, the Award cannot be sustained and deserves to be set aside. On the other hand, counsel for the Worklady submits that the Worklady was not given any appointment letter as also termination letter. She was a daily wager and therefore, is dependent on the Management for maintenance and production of the records before the Labour Court. To prove that she had worked for more than 240 days in service in the 12 preceding months from the date of termination of her services with the Management, she had summoned the relevant records. The Management Witness as also the Worklady Witness, who appeared before the Labour Court, had stated that the muster rolls from January, 1995, to August, 1999, are not available in the office. In the light of non production of the records, the onus having been discharged by the Worklady, adverse inference was required to be taken by the Labour Court, which had rightly taken note of it and had proceeded to hold that the Worklady had completed 240 days in service in the 12 preceding months before termination of her services . His further submission is that not only there was violation of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”), there was violation of Section 25-G of the Act as well. The evidence which had been brought on record, proved beyond doubt that C.W.P. No. 10112 of 2009. -3- persons junior to her were retained in service and fresh appointments were also made after the termination of her services. As regard the contention of counsel for the Management that no finding has been given on the plea of the Management on the abandonment of job, he contends that no evidence had been led by the Management in support of this contention and, therefore, even if no finding has been given by the Labour Court on this question, which has now been raised by the Management, the evidence itself proves that the said plea was not pressed into service as no evidence in support of this contention was produced before the Labour Court. I have heard counsel for the parties and have gone through the records of the case. The positive claim of the Worklady was that she was appointed on 15.07.1987 as Beldar-cum-Mali and continued in service till 31.08.1999, when her services were terminated by the Management without holding any inquiry or giving any notice or pay in lieu thereof. The onus to prove that she had worked for more than 240 days in service in the 12 preceding months from the date of her termination was on the Worklady and in discharge thereof she had summoned the records for the relevant period, i.e., from 15.07.1987 to 31.08.1999. The Management Witness, i.e., MW-1/Mohinder Singh Malik, DFO, o/o Range Officer, Charkhi Dadri, had in his statement before the Labour Court admitted that he had not brought the records of muster rolls from January, 1995, to August,1999, as the same were not available in the office. Even the Worklady Witness, i.e., WW-2/Ramesh Kumar, Clerk, o/o DFO (T), Bhiwani, who was summoned to produce the records, had also stated that he could not produce the records as the same were not available in the office. WW-2/Ramesh Kumar had further produced the seniority list Ex.W-1, wherein the Worklady has been shown at Sr. No. 17, Shri Ramesh s/o C.W.P. No. 10112 of 2009. -4- Shri Ram Narain shown at Sr. No. 22, and Smt. Santosh w/o Shri Mahabir shown at Sr. No. 73. Ramesh Kumar son of Shri Ram Narain was appointed in August, 1990 and was still working with the Management and Smt. Santosh w/o Shri Mahabir was also junior to the Worklady and was still continuing in service with the Management. In view of the above factual position, the adverse inference drawn against the Management by the Labour Court is fully justified and in accordance with law as the records, which are relevant and are maintained by the Management were not produced despite the same being summoned by the Labour Court. The findings thus with regard to the Worklady having been completed more than 240 days in service in the 12 preceding months from the date of her termination cannot be said to be not in accordance with law. It is an admitted position that neither any compensation was paid nor any notice or pay in lieu thereof was given to the Worklady and thus Section 25-F of the Act was violated by the Management. In the light of retention of junior persons in service by the Management, i.e., Shri Ramesh and Smt. Santosh, the provisions of Section 25-G stood also violated. Thus, the findings recorded by the Labour Court cannot be said to be illegal or perverse in any manner, which would call for any interference by this Court. As regards the contention raised by counsel for the Management that the plea of the Management with regard to abandonment of service by the Worklady having not been considered and decided by the Labour Court, it would suffice to say that neither any evidence had been led by the Management before the Labour Court as the onus to prove its assertion before the Labour Court was on the Management nor has any evidence been brought on record in this Court also, which would suggest that the said plea was pressed into service by the Management before the Labour Court. A plea may C.W.P. No. 10112 of 2009. -5- have taken in its defence by the Management, but if the said plea was not pressed into service either by producing any evidence before the Labour Court or having argued at the time of hearing of the case, it cannot be said that the Labour Court has overlooked the same or has not returned any finding on that aspect. In any case, in view of the fact that there is no evidence on record, which would suggest that the Management had pressed or stated anything to prove plea of abandonment of service, the contention of counsel for the Management cannot be accepted. That apart in the absence of evidence led by the Management before the Labour Court, this Court is left with no option but to hold that the Management has failed to prove the plea of abandonment of service. This conclusion finds further support from the fact that the Management did not produce the records subsequent to the alleged date of abandonment of service despite being summoned by the Court. Finding no merit in the present writ petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE March 31, 2010. sjks.