CWP No. 13505 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13505 of 2008 Decided on :19-11-2008 D. F. O. Territorial Bhiwani ......Petitioner Versus Babu Lal .....Respondent CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present:- Mr. Sunil Nehra, Assistant Advocate General, Haryana for the petitioner. Mr. S. B. Kaushik, Advocate for respondent no.1. Hemant Gupta, J. The challenge in the present writ petition is to the Award of the Labour Court dated 4.10.2006 (Annexure P1), whereby respondent No.1 (hereinafter referred to as 'the workman') was ordered to be re-instated with continuity of service and also 50% back wages from the date of demand notice on account of violation of Section 25-F of Industrial Disputes Act, 1947 (for short 'the Act'). In statement of claim before the Labour Court, the workman asserted that he was appointed as daily wages Beldar on 1.1.1982 and continuously worked upto 31.1.1990. Thereafter, Balraj, Forest Guard engaged him on 5.3.1998 till 13.10.1998 so that he could not complete 240 days. In view of the said facts, the workman claims that his services has been terminated illegally and in violation of the provisions of Section 25(F) CWP No. 13505 of 2008 2 of the Act and, thus, is entitled to re-instatment with continuity of services. Learned counsel for the petitioner has submitted that learned Labour Court erred in Law in proceeding on the basis that onus to prove that the termination of the workman is justified or lies on the Management. The said approach of the Labour Court is contrary to the dictum of Hon'ble Supreme Court in case reported as Surendranagar District Panchayat Vs. Dahyabahi Amar Singh, 2005 (8) SCC 750, wherein it was held:- 16. "In Range Forest Officer Vs. S.T. Hadimani, (2005) 8 SCC 750, the Court held that:- “In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. 17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan, Municipal Corpn., Faridabad vs. CWP No. 13505 of 2008 3 Siri Niwas and M.P. Electricity Board v. Hariram this Court has reiterated the principle that the burden of proof lies on the workman to show that he had worked continously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the factum of his being in employment of the employer.” In the present case, the learned Labour Court has found that the workman worked from May, 1982 till 31.04.1984 on the basis of two certificates Exhibit W-1 and W-2. The workman has not produced any proof of receipt of salary and wages or any record or order in respect of his engagement for the period alleged by him. No co-worker has been examined. The stand of the petitioner was that the record prior to 1984 has been weeded out. In these circumstances, it was not legally justified for the Labour Court to return a finding that the workman has completed 240 days in every calendar year. In fact, in Surendranagar District Panchayat 's case (supra), the Supreme Court further held to the following fact:- 18. “In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of tweleve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary CWP No. 13505 of 2008 4 evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The courts below have wrongly drawn an adverse inference for non-production of the record of the workman for ten years. In view of the above, we are of the opinion that the adverse inference drawn against the Management for not producing the muster roll etc. is not sustainable. Learned counsel for the petitioner has relied on a decision of the Supreme Court in cases reported as Ghaziabad Development Authority & another Vs. Ashok Kumar & another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan, (2007) 9 SCC 748, Utrranchal Forest Development Corpn. Vs. M.C. Joshi, (2007) 2 SCC (L&S) 813, State of M.P. And others Vs. Lalit Kumar Verma, (2007) 1 SCC 575, to contend that the post under the State are required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. It is contended that the respondent-workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution, therefore, even if the workman has completed 240 days of service, the said workman is not entitled to be reinstated and also for the grant of back wages. In M.P. Administration's case (supra), the Court held to the following effect:- 6. "The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court CWP No. 13505 of 2008 5 should have directed reinstatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of "workman" as contained in Section 2(s) of the Act is wide and takes within its embrace all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application of constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of India, in the light of a decision of a Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration. 7. The nature of appointment, whether there existed any sanctioned post or whether the officer concerned had any authority to make appointment are relevant factors." The said observations are in the context of engagement of a workman engaged on temporary basis from time to time. It was held that the Industrial Court exercises its discretionary jurisdiction under Section 11A of the Act, when it directs the amount of compensation to be paid to the workman. In Mahboob Deepak's case (supra), the Court held to the following effect:- 9. “Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently CWP No. 13505 of 2008 6 absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be regularised.” In Ghaziabad Development Authority's case (supra), the dispute referred to the Labour Court was regarding termination of daily wagers appointed on ad hoc basis. It was held to the following effect:- 19. “A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said contitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to the kept in mind by the Labour Court before passing an award of reinstatement. 20. Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service.” Since the workman has no proof to have worked continuously as claimed by the workman, therefore, we are of the opinion that the workman is neither entitled to be reinstated or any back wages. In view of the above, we allow the present writ petition and the impugned award dated 4.10.2006 ( Annexure P1 ), is set aside. ( Hemant Gupta) Judge November 19, 2008 ( Nawab Singh) mamta/monika Judge