IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 6335 of 2009 Date of Decision : May 18, 2010. The Divisional Forest Officer (Social Forestry Project), Bhiwani, now The Divisional Forest Officer (Territorial), Bhiwani. ...... Petitioner . Versus. Smt. Roshni Devi and another ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Addl. A.G. Haryana, for the petitioner. Mr. Rakesh Nehra, Advocate, for respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition is for setting aside of the Award dated 11.03.2008 (Annexure-P-1), passed by the Industrial Tribunal- cum-Labour Court, Rohtak, vide which the reference had been answered in favour of the respondent No. 1/Worklady (hereinafter referred to as “the Worklady”), holding her entitled to reinstatement in service on previous post with continuity thereof and 50% back wages from the date of demand notice, i.e., 28.05.2001. Counsel for the petitioner/Management (hereinafter referred to as “the Management”) contends that as per assertion of the Worklady, she was appointed on 01.01.1993 as Beldar-cum-Mali and she continued to serve with the Management till 31.12.1999. The Labour Court, while drawing adverse inference against the Management had taken into consideration the muster rolls for the year, 1998, which were not relevant as far as the computation of 240 days in service in the 12 preceding months from the date of her alleged termination is concerned. He contends that the records were summoned from C.W.P. No. 6335 of 2009. -2- the Management and the Management Witness had produced the records, which were available with it and, thus, the adverse inference, which had been drawn against the Management in holding that the Worklady had completed more than 240 days in service in the 12 preceding months from the date of her termination for non production of the records pertaining to the period 01.01.1999 to 31.12.1999, cannot be sustained. His further contention is that the Worklady Witness, namely, Ramesh Kumar/WW-2, Clerk, o/o Divisional Forest Officer (Territorial), Bhiwani, who had appeared before the Labour Court, had deposed that he has not brought the muster rolls and muster roll issue register from January, 1999 to December, 1999, as the said muster rolls were not available. He had further stated that he would not be in a position to produce the records in future as well. His contention is that the Worklady Witness, if does not produce her records, the Management cannot be held to be responsible for the said act and adverse inference drawn for non production of records basing the same on the statement of Worklady Witness, cannot be sustained. His further contention is that the Management Witness had categorically stated before the Labour Court that the Worklady had not completed more than 240 days in service in any calendar year and, therefore, the finding recorded by the Labour Court on the basis of an adverse inference drawn against the Management for non production of the summoned records by the Worklady Witness, cannot be sustained. On the other hand, counsel for the respondent No. 1/Worklady submits that the Worklady being a daily wager does not have any records. She, therefore, is dependent on the Management for production of records. The onus being on the Worklady to prove that she had worked with the Management for 240 days in the 12 preceding months with the Management from the date of her termination, she moved an appropriate application before C.W.P. No. 6335 of 2009. -3- the Labour Court for production of records and for summoning of the witness with the records. The said application was allowed and accordingly, the records were summoned from the Management for proving the case of the Worklady. Although, he has been termed as a Worklady Witness as he had been summoned on an application moved by the Worklady, but the said witness was deposing on the basis of the records. The deposition of the Worklady Witness, namely, Shri Ramesh Kumar, Clerk (WW-2), o/o Divisional Forest Officer (Territorial), Bhiwani, is based on the records and when he states before the Labour Court that the muster rolls and muster roll issue register from January, 1999, to December, 1999, could not be produced as they were not available and the same could not be produced in future as well, the adverse inference, which had been drawn by the Labour Court, is fully justified. He on this basis contends that the findings recorded by Labour Court, are in accordance with law and does not call for any interference by this Court. I have heard counsel for the parties and have gone through the records of the case. The contention of counsel for the petitioner/Management that the adverse inference can only be drawn against the Management, if the Management fails to produce the relevant records before the Labour Court cannot be accepted in the case in hand. The Worklady being a daily wager was neither issued appointment letter nor termination letter. The Management is the custodian of the records. The onus to prove that the Worklady had completed more than 240 days in service in the 12 preceding months from the date of her termination is on the Worklady and for discharging that onus, the Worklady was fully dependent on the Management for production of the records. She had, therefore, moved an application before the Labour Court, C.W.P. No. 6335 of 2009. -4- calling upon the Department to produce the relevant records, which were spelt out in the said application. The said application was allowed by the Labour Court and the records were summoned. Shri Ramesh Kumar/WW-2, Clerk, o/o Divisional Forest Officer (Territorial), Bhiwani, initially appeared on 10.03.2006, when he stated before the Labour Court that he had not brought the complete summoned records because the records have been sent to other courts in cases and he would produce the complete records on the next date of hearing. Accordingly, examination-in-chief of the Witness was deferred to 13.11.2006. Shri Ramesh Kumar, appeared as a witness (WW/2) on 13.11.2006 and in examination-in-chief, he had deposed as follows :- “xxxxx I have not brought the muster rolls and muster roll issue register from 1/99 to 12/99. These muster rolls are not available. Therefore, I have not produced this record in future.” As per contention of the Worklady, her services were terminated on 31.12.1999. Thus, 12 preceding months, which were relevant for proving as to whether the Worklady had worked with the Management for more than 240 days in the 12 preceding months was from January, 1999, to December, 1999. These records were not produced by Shri Ramesh Kumar (WW-2), Clerk, o/o Divisional Forest Officer (Territorial), Bhiwani, who had been summoned by the Court on an application moved by the Worklady to produce the records. Not only did he state that he has not brought the muster rolls and muster roll issue register from January, 1999, to December, 1999, as the same were not available, rather he had further stated that he would not be able to produce the same in future as well. In such a situation where, although, on an application moved by the Workman/Worklady, a witness is called for production of records and who deposes on the basis of available records, it cannot be said that he would be deposing as an interested witness as far as the Workman/Worklady is concerned because he is not making a statement before C.W.P. No. 6335 of 2009. -5- the Labour Court on the basis of his personal knowledge, but on the basis of the records. When he states something on the availability or non availability of the records, there is no reason or justification why the Labour Court would not take it to be correct, when the same has not been contested or rebutted by the Management. Adverse inference was not drawn because witness deposed for the Worklady or for the Management, but it was because of non production of the records, which has further been stated to be not available and cannot be produced in future. In these circumstances, the contention of counsel for the Management that adverse inference can only be drawn in case the Management Witness fails to produce the records, cannot be accepted and is hereby rejected. The records were summoned as the onus was on the Worklady to prove her assertion that she had completed 240 days in service in the 12 preceding months from the date of her termination and it would be her responsibility to prove the same, therefore, she made an application for production of the records and if the official, who is summoned to produce the records in possession of the Management, does not produce the same and further states that it is not available and will not be available in future as well, adverse inference which is drawn by the Labour Court cannot be said to be without any basis or not in accordance with law. The adverse inference drawn by the Labour Court in the given facts and circumstances of the case is fully justified and does not call for any interference by this Court. Finding no merit in the present writ petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE May 18, 2010. sjks. Whether referred to the Reporter : Yes.