IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 11728 of 2008. Date of Decision : February 11, 2009. Divisional Forest Officer (S.F.P.), Hisar. .... Petitioner. Versus. Bharat Singh @ Bharta and another. ...Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. D.S. Nalwa, Additional Advocate General, Haryana, for the petitioner. Mr. S.K. Gupta, Advocate, for the respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 19.05.2006 (Annexure-P-1), passed by the Industrial Tribunal-cum-Labour Court, Hisar, wherein the reference has been answered in favour of the workman holding him entitled to reinstatement with continuity of service and other consequential benefits with 50 per cent back wages from the date of issuance of demand notice i.e. 22.12.2000 till the date of publication of the award and full wages thereafter till reinstatement. Counsel for the petitioner contends that the award passed by the Labour Court holding the workman to have completed 240 days in the preceding 12 months, cannot be sustained as an adverse inference has been wrongly drawn by the Labour Court. He contends that cash books mark 'B' C.W.P. No. 11728 of 2008. to mark 'V' of June and July, 1999, which were produced in the Court but the Court has drawn an adverse inference on the ground that the original cash books have not been produced by the respondents and has further gone to hold that the cash books have been withheld deliberately so that the workman could not prove that he has worked for 240 days in the preceding 12 months which is the requirement of Section 25-F of the Industrial Disputes Act for granting him benefit therein. He contends that the records which were called for by the Labour Court on an application moved by the workman, did not specifically say that the original records were to be produced. He, therefore, contends that the records and photocopies of the same have been produced before the Labour Court. This contention of counsel for the petitioner cannot be accepted. The records when called for by the Labour Court are always the original records. In case the original records are not produced and photocopies thereof have been produced, the onus is on the person producing those documents to show why he is unable to produce the original records. A perusal of the award would show that the onus which was therefore on the management-petitioner to show non production of original records have not been discharged by them as no reason whatsoever for non production of the original records have been given by the management-petitioner. The inference therefore drawn adversely against the management-petitioner is quite justified and in accordance with law. Further submission has been made by counsel for the petitioner that the Labour Court has not disbelieved the documents and has only proceeded on the presumption that since the original records have not been -2- C.W.P. No. 11728 of 2008. produced, therefore, an adverse inference is required to be drawn against the management-petitioner. This contention again of counsel for the petitioner cannot be accepted for the reason that the documents itself have not been produced nor the same having been proved by the management-petitioner, cannot be looked into nor any credence could be attached thereto which would enable the Labour Court to look into the same as to their contends. Counsel for the petitioner has further now contended that the post on which the workman-respondent has been reinstated is a public post and it is an admitted position that the initial appointment of the workman- respondent was not in accordance with statutory rules. He states that Articles 14 and 16 of the Constitution of India therefore stood violated at the initiation of the engagement of the workman-respondent and therefore, no right to reinstatement in service would accrue to the workman-respondent despite of the finding given by the Labour Court that the provisions of Section 25-F of the Industrial Disputes Act have not been complied with while terminating the services of the workman-respondent although workman-respondent may not be entitled to reinstatement but he would be entitled to compensation for the period he has worked with the management- petitioner and it will be just and equitable to balance the equities between the parties and grant compensation to the workman-respondent in lieu of his reinstatement in service. Counsel for the petitioner further contends the Hon'ble the Supreme Court in the cases of Ghaziabad Development Authority and another Versus Ashok Kumar and another, 2008(4) S.C.C. 261, Mahboob Deepak Versus Nagar Panchayat, Gajraula, (2008) 1 S.C.C. 575, M.P. -3- C.W.P. No. 11728 of 2008. Administration Versus Tribhuwan, (2007) 9 S.C.C. 748, and State of M.P. and others Versus Lalit Kumar Verma, (2007) 1 S.C.C. 575, has held that the post under the State is required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. The workman-respondent was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution of India, therefore, even if the workman-respondent has completed 240 days of service, the said workman-respondent is not entitled to be reinstated and also for grant of back wages. The workman-respondent in the light of the Judgments of Hon'ble the Supreme Court referred to above, is not entitled to reinstatement against a public post nor he is entitled to any back wages. This Court in case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788, has held that although a daily wager may not be entitled to reinstatement but the workman-respondent would be entitled to compensation for wrongful termination of his services. The workman-respondent has worked with management from 26.06.1994 till March, 2000, as per the award and counsel for the workman-respondent says that even till date the workman-respondent is in service. In the light of the fact that the workman-respondent has no right for reinstatement in the light of above judgments, however, he is held entitled to compensation of Rs. 60,000/- to settle equities between the parties. In view of the above, the present writ petition is allowed and the award dated 19.05.2006 (Annexure-P-1), passed by the Labour Court, Hisar, is hereby set aside. The workman-respondent is held entitled to compensation of Rs. 60,000/- in lieu of his reinstatement. -4- C.W.P. No. 11728 of 2008. The management-petitioner is directed to release the said amount i.e. Rs. 60,000/- to the workman-respondent within a period of two month from the date of receipt of copy of this order. The present writ petition stands disposed of accordingly. (AUGUSTINE GEORGE MASIH) JUDGE February 11, 2009. sjks. -5-