IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.20439 OF 2009 Date:26-04-2011 Between:- The Deputy Commissioner, Rajendra Nagar Circle, GHMC, Hyderabad and another .. Petitioners And The Industrial Tribunal-II, Hyderabad, rep.by its Chairman and another. .. Respondents ORDER This Writ Petition is filed challenging the Award in I.D.No.145 of 2005 on the file of the Chairman, Industrial Tribunal-II, Hyderabad, whereunder and whereby, the order of termination of service of respondent No.2 herein was set aside and he was directed to reinstate into service with 25% of back wages, continuity of service and other attendant benefits. 2. A dispute was raised before the Industrial Tribunal-II under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short, ‘the Act’) inter alia contending that respondent No.2 was appointed as NMR on daily basis on 01.06.1988 in the office of petitioner No.1-Deputy Commissioner, Rajendranagar. He continuously worked there upto 31.12.1999 for more than 240 days and that his services were terminated orally without any reasons with effect from 01.01.2000 without complying Sections 25-F, 25-B and Rules 78 and 79 of the Act. 3. The petitioners herein, who are respondents in the Labour Court, filed a counter stating that respondent No.2 was never engaged as NMR on daily wage basis. Therefore, the question of retrenchment or reinstatement into service does not arise. 4. To substantiate the case, W.Ws.1 and 2 were examined on behalf of the respondent No.2/petitioner and got marked Exs.W-1 to W- 18 and on behalf of the petitioners/respondents, M.Ws.1 and 2 were examined and got marked Exs.M-1 to M-10. 5. After considering the oral and documentary evidence on record, the Tribunal allowed the petition as above. Hence, this writ petition. 6. There cannot be any dispute that the initial burden is on the respondent No.2/petitioner to establish that he continuously worked with the Municipal Corporation for a period of more than 240 days with effect from 01.06.1988. Two documents were filed to show that he was employed by petitioner No.1-Deputy Commissioner, Rajendranagar. Ex.W-8 was issued in his favour by M.W.2, the then Commissioner. Ex.W-7 is the document filed by him to establish that he was allowed to draw the time scales. The issuance of these two documents are not denied or disputed by petitioner before the Tribunal. Once a document has been duly admitted and the contents of the documents are not denied or disputed in the cross examination, it can be deemed that the contents of the documents are admitted and implicit reliance on these documents can be placed and relied upon. So from these two documents, it is established beyond doubt that respondent No.2 herein was appointed as N.M.R with effect from 01.06.1988 and he has continuously worked for more than 240 days. The Corporation has only produced the muster rolls relating to the N.M.Rs but not the regular time scale workers. As W.W.2, who is the then Commissioner, has admitted that respondent No.2 was allowed to draw time scale with effect from 01.04.1992, the regular N.M.R muster rolls are relevant for the purpose of deciding whether respondent No.2 continuously worked for more than 240 days or not, but the petitioners failed to produce the documents which are in their custody. Under Section 114(g) of the Indian Evidence Act, 1872 if the documents relevant for the purpose of deciding the issue are not produced, an adverse inference has to be drawn. This illustration refers to the presumption raised from willful withholding of evidence and from suppression of evidence. The suppression of useful evidence naturally leads to the inference that the evidence if produced would go against the party who withholds it. Therefore, the Tribunal has rightly placed reliance on Exs.W-7 and W-8 to show that the workman has continuously worked as NMR for a period of more than 240 days and therefore, without following the procedure as contemplated under Section 25 of the Act, he cannot be terminated and therefore, termination order is illegal. So, respondent No.2 is entitled for continuity of service from the date of illegal termination till the date of reinstatement. 7. With regard to payment of 25% of back wages, respondent No.2 has not adduced any evidence as to whether he is gainfully employed anywhere so as to claim the back wages. There cannot be any dispute that granting of back wages is not automatic or in a routine manner. There must be a pleading and also evidence to establish that the workman, after his dismissal from service, was not gainfully employed anywhere, but such evidence is lacking. Therefore, the Tribunal was not right in granting 25% of the back wages. Therefore, the impugned order is partly allowed confirming the reinstatement of respondent No.2/petitioner into service with continuity of service for the purpose of regularization only. It is made clear that respondent No.2/petitioner is not entitled to any other monetary or other benefits in pursuance of this order. 8. With the above observation, the Writ Petition is partly allowed. There shall be no order as to costs. JUSTICE K.C.BHANU _____________________ 26th April, 2011 AMD THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.20439 OF 2009 Date:26-04-2011 AMD