C.W.P. No. 16694 of 2009 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 16694 of 2009 (O&M) Date of Decision: Aug. 30,2011 Ram Chander ............................................ Petitioner Versus The Dy. Conservator of Forest (T.R.) and others ........................................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Ashwani Bakshi, Advocate for the petitioner. Mr. D.S.Nalwa, Addl. A.G. Haryana. ... RITU BAHRI, J. This petition under Article 226/227 of the Constitution of India is for issuance of a writ of certiorari quashing the award dated 14.5.2008 (Annexure P5) passed by the Industrial Tribunal-cum-Labour Court-II, Gurgaon. The workman-petitioner was engaged as Beldar on 1.10.1993 in the Aravali Project at a salary of `2200/- per C.W.P. No. 16694 of 2009 (O&M) [ 2 ] month. No appointment letter was issued to him. He was paid wages against the Muster Roll. His services were terminated on 1.11.1999. Some labourers of Aravali Project were adjusted in the other Wings but the petitioner was not accommodated after closing of the Aravali Project. The workman raised a demand notice dated 22.2.2005 (Annexure P1). He has given the details of Muster Roll right from October 1993 till January 1997. One Suresh who was working in the Aravali Project at Narnaul was adjusted in the territorial wing of the respondents. His services have been regularized with effect from 1.2.1996 under the 1996 policy of the Government. The other workmen Samrata, Chhotu Ram and Hari Ram who were also terminated on 1.11.1999 have been reinstated in compliance of the Labour Court award with continuity of service with effect from 3.12.1999. The Labour Court award has been upheld uptill Supreme Court and they have been taken back on duty on 29.11.2004. The respondents have filed their written statement denying that the workman was appointed as Beldar on 1.10.1993. Aravali Project was closed on 31.10.1999 when the financial aid from the European Economic Community was stopped. It was admitted that the labourers Suresh, Samrata, Chhotu Ram and Hari Ram have been reinstated in compliance of the Labour Court award and as per the C.W.P. No. 16694 of 2009 (O&M) [ 3 ] Government instructions. While appearing as PW1 the petitioner/workman Ram Chander had stated that on 1.11.1999 other labourers namely Samrata, Chhotu Ram and Hari Ram were terminated. They were subsequently reinstated on the basis of award passed by the Labour Court. The Labour Court has rejected the reference filed by the workman on the ground that he was unable to prove that he had worked for 240 days during the period of 12 months preceding the date of his termination i.e. 1.11.1999. The Labour Court has observed that an adverse inference cannot be drawn against the Management for non production of the record as it has been weeded out as per the time frame laid down in the instructions issued by the department. Placing reliance on the judgment of the Supreme Court in Secretary, State of Karnataka and others v. Uma Devi (3) and others (2006) 4 SCC 1 the Labour Court has further come to a conclusion that if the appointments have been made as a back door entry without following the Service Rules a workman has no right to the post and his reinstatement would amount to back door entry into government service and as per Supreme Court judgment in Uma Devi's case (supra) the same is not warranted. Since the workman has not put in 240 days before he was terminated on 1.11.1999, his appointment is de hors to service rules. The Labour Court has held that provisions of Section 25-F of the C.W.P. No. 16694 of 2009 (O&M) [ 4 ] Industrial Disputes Act are not applicable. The Reference was answered against the petitioner-workman on 14.5.2008 (Annexure P5). Vide order dated 17.2.2010 a direction was given by this Court to the respondents to file an affidavit giving the details of the period of service which the petitioner had rendered with the respondents in the 12 preceding months from the date of his termination i.e. 1.11.1998 to 31.10.1999. The affidavit dated 22.4.2010 of Shri I.P.Singh, Divisional Forest Officer (Territorial), Mahendergarh, was filed in compliance of the Court orders. As per this affidavit, from November 1998 till October 1999, the details of working days of the petitioner have been mentioned as under:- Month No. of days Remarks 11/98 30 P-1 12/98 31 P-2 01/99 31 P-3 02/99/ 15 P-4 03/99 0 No muster-rolls issue 04/99 0 -do- 05/99 0 -do- 06/99 0 -do- 07/99 0 -do- 08/99 25 P-5 09/99 0 No muster rolls issued 10/99 0 -do- As per the working details, he does not complete 240 days in the 12 months preceding the date of his C.W.P. No. 16694 of 2009 (O&M) [ 5 ] termination. Subsequently, an application dated 2.8.2010 was filed showing the details of attendance of the petitioner from November 1998 to October 1999 (Annexure A). As per Annexure-A, the petitioner had worked for 30 days in October 1999 and the payment had been made as per the cash book. Annexures C1 to C4 are the details of the payments which were made to the petitioner on account of contract work done by him in the month of March'99 and August'99. Annexures B1 to B6 are copies of muster-rolls and bills by which payments were made to the petitioner. In the earlier affidavit filed, it has been mentioned that no muster-rolls were issued for October 1999. However, the petitioner has been shown to work for 30 days in the month of October 1999 but his payment was not made in pursuance to muster-rolls. It was paid after making an entry in the cash book voucher (Annexure B6). The petitioner has filed an affidavit dated 4.8.2011 denying the contents of the payment made by the Department on contract basis. Mr. Ashwani Bakshi, counsel for the petitioner, has vehemently argued that once the department has chosen not to lead any evidence in the Labour Court and in pursuance to the directions passed by this Court they have produced some record, an adverse inference should be C.W.P. No. 16694 of 2009 (O&M) [ 6 ] drawn against the department for not leading proper evidence and concealing the same from the Court. The finding of the Labour Court that the record had been weeded out as per government instructions is liable to be set aside. It is admitted case of the respondents that other labourers like Suresh, Samrata, Chhotu Ram and Hari Ram who were terminated on 1.11.1999 with the petitioner have since been reinstated in compliance of the Labour Court award which has been upheld uptill the Supreme Court. The petitioner being a daily wager in his demand notice has given the details of the muster-roll as per his knowledge till January 1997. It was the duty of the department to furnish the evidence which has been led in High Court now before the Labour Court. The case should be remanded back for a fresh decision as new facts have been raised in this Court. Mr. D.S.Nalwa, counsel for the State, on the other hand, has argued that in compliance of the Court order the details of the 12 months preceding the date of termination i.e. from 1.11.1998 to 31.10.1999 have been filed in this Court and the petitioner has not worked for 240 days as per the affidavits filed in this Court. As far as the entry regarding October 1999 where petitioner has worked for 30 days is concerned, he was paid by entry into a cash book voucher and no muster-roll was issued for this month. As far as the case of other co-workers is C.W.P. No. 16694 of 2009 (O&M) [ 7 ] concerned, petitioner cannot claim parity as they had completed 240 days and the Labour Court had answered the reference in their favour. The Aravali Project in which the petitioner was working was closed in the year 1999 as the funds sponsored by European Union were not available. Termination of the petitioner at best falls under Section 2 (oo) (bb) of the Industrial Disputes Act. The petitioner has not completed 240 days in the 12 months preceding the date of his termination. As is evident from the affidavit filed by the Divisional Forest Officer the petitioner has put in 162 days in those 12 months. The payment made for the work conducted in 12 months as is evident from Annexures C1 to C4 cannot be counted as a daily wage period. The payment for this period ranges from `8,000/- to 12,000/- which is much more than the salary paid to a daily wager for one month. This payment was made to him on account of the work done by his labour at the Rajawas Nursery. He has accepted this payment on account of the work done by labourers who were working under him. For all intents and purposes, this payment is not on account of daily wage work done by him and, therefore, is not liable to be counted for counting 240 days. After going through the entire facts of the case, the only question to be decided is whether the workman had completed 240 days before his services were terminated on C.W.P. No. 16694 of 2009 (O&M) [ 8 ] 1.11.1999. As per the demand notice the petitioner-workman had not given the details of his working days after January 1997. The period before January 1997 cannot be taken into consideration for complying with the provisions of Section 25-F of the Industrial Disputes Act. It is the 12 months preceding the date of termination i.e. 1.11.1999 which are relevant and which should be taken into consideration for non compliance of Section 25-F of the ID Act. In Annexure A placed on record along with the application dated 2.8.2010 which is in furtherance to the affidavit filed by the Divisional Forest Officer dated 22.4.2010 it comes out that the petitioner had worked for 162 days in the 12 months preceding the date of his termination. The payments made to the petitioner for the work done under contract by him vide Annexures C1 to C4 are not liable to be counted towards calculating 240 days. After going through these receipts, it is clear that payments have been made to the petitioner on account of the work done by his labour at the Rajawas Nursery during February to April, 1999 and June 1999. The amount paid to the petitioner is not the salary of a daily wager. Hence, for all intents and purposes the period of work during these days cannot be counted as daily wager for the purpose of Section 25-F of the Industrial Disputes Act. C.W.P. No. 16694 of 2009 (O&M) [ 9 ] The argument of the counsel for the petitioner that since the department has now produced the muster-roll account relating to the period from November 1998 till October 1999 the matter should be remanded back to the Labour Court for a fresh decision is liable to be rejected on the ground that no new evidence can be led apart from the information placed before this Court which requires adjudication by the Labour Court. In any case, it was the duty of the workman to lead the evidence to prove that he had worked for 240 days in the 12 months preceding the date of his termination i.e. 1.11.1999. He has chosen to keep quiet on giving this detail in his demand notice. Hence, once the position has been cleared in view of the official record before this Court, it is held that the petitioner had worked only for 162 days in the preceding 12 months of his termination as per Annexure A. Petitioner cannot derive any benefit from the fact that some co-workers had been terminated along with the petitioner on 1.11.1999 and subsequently were reinstated in compliance of the Labour Court award which was upheld uptil the Supreme Court. It is not the case of the petitioner that these workmen had not completed 240 days. The petitioner in his affidavit filed on 4.8.2011 has denied the payment received by him for the work done on contract basis. As has been observed earlier the period spent on contract basis cannot be counted for the C.W.P. No. 16694 of 2009 (O&M) [ 10 ] purpose of calculating 240 days. The writ petition is dismissed with no order as to costs. 30.8.2011 ( RITU BAHRI ) Rupi JUDGE