IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 2296 of 2009. Date of Decision : May 01, 2009. The Divisional Foresh Officer (Territorial), Bhiwani. ....... Petitioner. Versus. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, and another. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Additional Advocate General, Haryana, for the petitioner. Mr. Deepak Sonak, Advocate, for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 20.03.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, wherein the reference has been answered in favour of the workman, holding him entitled to reinstatement in service with continuity thereof and 50% back wages from the date of demand notice i.e. 28.01.1999. Counsel for the petitioner contends that the workman has asserted that he had worked with the petitioner-management from 01.05.1992 to 01.07.1998. He contends that the onus to prove that the workman had indeed worked for the period as asserted by him was on the workman. Having failed to discharge that onus, no benefit can be granted to the workman for the period for which he has been unable to prove his work with the Management. He further contends that the positive stand of the petitioner-management was that the workman had worked upto November, C.W.P. No. 2296 of 2009. 1995 with them. In none of the preceding years except year, 1994, the workman had completed more than 240 days with the petitioner- management. He further contends that in view of the fact that the workman had not worked with the petitioner-management after November, 1995, the records were not required to be produced before the Labour Court. On the other hand, counsel for the respondent-workman contends that the workman had made a positive statement before the Labour Court with regard to his work with the petitioner-management continuously from 01.05.1992 to 01.07.1998. To prove his assertion, the workman had made an application before the Labour Court for production of the records for the said period and accordingly, Surinder Kumar, Forest Guard, o/o D.F.O. Bhiwani, appeared as W.W.2 before the Industrial Tribunal-cum- Labour Court. He stated that out of the summoned records, he had brought the records only from September, 1993 to November, 1995 and rest of the records was not traceable. He on this basis submits that whatever was within the power and the requirement of law for seeking the production of records which was only available with the petitioner-management was done on his part by the workman. The witness who had appeared on being called by the Court for production of records had categorically stated that the records for the period summoned beyond November, 1995 till July 1998, was not available. That being so, the Industrial Tribunal-cum-Labour Court has rightly drawn adverse inference against the petitioner-management and proceeded to decide the reference in favour of the workman. It is an admitted position that provisions as contained in Section 25-F of the Industrial Disputes Act having not been complied with, the order of -2- C.W.P. No. 2296 of 2009. reinstatement of the workman is fully justified which does not call for any inference by this Court. I have heard counsel for the parties and have gone through the records of the case. It is true that the onus was on the workman to prove his assertion with regard to period he had worked with the petitioner- management and to discharge this onus, the workman had moved an application before the Industrial Tribunal-cum-Labour Court for production of the records of relevant period. In pursuance thereto, W.W.2 Surinder Kumar, Forest Guard, o/o D.F.O., Bhiwani, came present with the records available with him. He made a categoric statement before the Industrial Tribunal-cum-Labour Court that he had only brought the records from September, 1993 to November, 1995 and rest of the records was not traceable. In view of this categoric statement made by the official who had been summoned with the records for production thereof, there is no doubt that the workman had exercised his due diligence and taken care and caution expected of him to prove his period of work with the petitioner-management. The documents and the records are maintained by the petitioner-management and that too of a daily wager who are not given any appointment letter or are given salary slips or other document. Such workmen have to rely upon the records available with the Management and the Management is expected to maintain the same. Having not been able to produce the records as they were not traceable as per own statement of Forest Guard, W.W.2 - Surinder Kumar, the onus stood fully discharged as far as the workman is concerned. The Industrial Tribunal-cum-Labour Court has, therefore, rightly drawn an adverse inference and granted the workman the claim made by him. -3- C.W.P. No. 2296 of 2009. Faced with this situation, counsel for the petitioner- management contends that even if these findings as have been recorded by the Industrial Tribunal-cum-Labour Court, are taken to be correct still in the light of judgments of 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. 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, the workman cannot be reinstated in service (i) because he was a daily wage employee and he was not appointed on regular post and (ii) the appointment of the workman was not in accordance with the statutory rules governing the service and being violative of the scheme as envisaged under Articles 14 and 16 of the Constitution of India. He further contends that at the most, the workman would be entitled to compensation for the period he had worked with the petitioner-management in the light of the judgment of Hon'ble the Supreme Court in the case of Telecom District Manager and others Versus Kesheb Deb, 2008 (4) S.C.T. 33, and a Division Bench of this Court in the case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788. This contention of counsel for the petitioner deserves to be accepted. In view of the above referred judgments, the award passed by the Industrial Tribunal-cum-Labour Court cannot be sustained. The workman had worked from 01.05.1992 to 01.07.1998 and, therefore, would be entitled to compensation of Rs. 60,000/-. This compensation is being granted to the workman in lieu of reinstatement and also in view of the fact -4- C.W.P. No. 2296 of 2009. that the services of the workman were terminated not in accordance with law. In view of the above, the writ petition is allowed. The impugned award dated 20.03.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour Court , Rohtak, is hereby set aside. The workman is held entitled to compensation of Rs. 60,000/-. A direction is issued to the petitioner to release the amount of compensation as assessed above within a period of two months from the date of receipt of certified copy of this order. Counsel for the workman states that in pursuance to the award passed by the Industrial Tribunal-cum-Labour Court, Rohtak, the workman has re-joined the service on 16.05.2008. He contends that the workman would make a representation to the Management which may be considered and he be given fresh appointment in case work is available with the Management. In case such a representation is made, the same be considered sympathetically. The writ petition stands disposed of accordingly. (AUGUSTINE GEORGE MASIH) JUDGE May 01, 2009. sjks. -5-