IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10290 of 2009 . Date of Decision : April 05, 2010. Mor Mukut Singh ...... Petitioner . Versus. The Manager, Enexco Engineer Ltd., and another. ..... Respondents . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Ashwani Bakshi, Advocate, for the petitioner. Mr. P.K. Mutneja, Advocate, for respondent No. 1. AUGUSTINE GEORGE MASIH, J.. The challenge in this writ petition is to the Order dated 28.05.2004 (Annexure-P-8), vide which the onus to prove that the petitioner/Workman had completed more than 240 day in service in the 12 preceding months from the date of his termination had been shifted upon the petitioner/Workman from the respondent/Management, Order dated 21.08.2007 (Annexure-P-11), vide which the evidence of the petitioner/Workman was closed, Order dated 25.09.2007 (Annexure-P-12), vide which the petitioner/Workman was proceeded against ex-parte and the Award dated 21.11.2007 (Annexure-P-14), passed by the Industrial Tribunal- cum-Labour Court-II, Gurgaon, rejecting the claim of the petitioner/Workman. Counsel for the petitioner submits that the petitioner/Workman joined as a Machinist with the respondent/Management on 16.01.1995. He continued to work with the respondent/Management till 17.06.1996, when he proceeded on one week's leave. On his return, i..e, 24.06.1996, he was not taken back on duty. On 10.07.1996, the petitioner/Workman was forced to sign on the receipt of the charge-sheet, but the copy of the charge-sheet was not supplied to him. However, the services of the petitioner/Workman were wrongly terminated by the respondent/Management on 24.06.1996 without payment of retrenchment compensation or pay in lieu of notice. For violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”), the petitioner/Workman prayed for reinstatement in service with full back wages. A demand notice dated 21.08.1996 was served by the petitioner/Workman upon the respondent/Management, when despite repeated requests made by the petitioner/Workman to join the duty, the petitioner/Workman was not allowed to do so. The respondent/Management filed its reply before the Deputy Labour Commissioner, Gurgaon, wherein the stand taken was that the services of the petitioner/Workman were not terminated, but he himself had absented from duty. In view of the contradictory stands taken by the parties, the conciliation proceedings failed. The Deputy Labour Commissioner, Gurgaon, sent his failure report on 31.01.1997. In the light of the reply submitted by respondent/Management, the Labour Commissioner, Haryana, vide letter dated 11.09.1997 addressed to the respondent/Management stating that the petitioner/Workman be allowed to join duties within 15 days. Since, the respondent/Management did not allow the petitioner/Workman to join the duty, the petitioner/Workman submitted a complaint to the Labour Inspector, Gurgaon, on 24.11.1997. On 29.07.1998, the Labour Commissioner, Haryana, again directed the petitioner/Workman to join the duty. On 18.08.1998, the petitioner/Workman complained to the Labour Commissioner, Haryana, that despite directions given by him, the petitioner/Workman had not been allowed to join duty by respondent/Management and requested that the dispute be referred to the Labour Court for adjudication. On 12.09.1998, the appropriate Authority referred the industrial dispute to the Labour Court, Gurgaon, for adjudication. On receipt of notice from the Labour Court, the petitioner/Workman appeared before it and submitted his claim statement on 09.02.1999. On 30.11.1999, the respondent/Management appeared before the Labour Court and sought time to file reply. The matter lingered on and the respondent/Management filed its reply after availing a number of opportunities on 05.04.2001. On the basis of the pleadings of the parties, the Labour Court framed issues on 26.09.2001 and fixed the case on 11.04.2002 for recording of Management's evidence. The respondent/Management preferred an application claiming therein that the onus to prove that the petitioner/Workman had completed more than 240 days in service in the 12 preceding months from the date of his termination and that the termination of services of the petitioner/Workman was not in accordance with, was upon the petitioner/Workman himself. The said application was allowed by the Labour Court on 28.05.2004 (Annexure-P-8), shifting the onus to prove the termination to be not in accordance with law upon the petitioner/Workman. Between 26.09.2001 to 28.05.2004, the respondent/Workman had not examined even a single witness despite availing a number of opportunities for the said purpose. The petitioner/Workman examined one witness on 28.03.2007, where he himself appeared before the Labour Court and his examination-in-chief was recorded, but cross-examination was deferred to 29.05.2007. On 29.05.2007, the Presiding Officer was on leave, hence, the case was adjourned to 21.08.2007. On 21.08.2007, as no prosecution witness was present, the evidence of the petitioner/Workman was closed and the case was adjourned to 25.09.2007 for recording Management's evidence. This Order, i.e., dated 21.08.2007 (Annexure-P-11) is under challenge in the present writ petition. The case came up for hearing on 25.09.2007 and as on that date, the petitioner/Workman and his Authorized Representative did not appear before the Labour Court, the Labour Court proceeded to pass ex-parte order against the petitioner/Workman. This Order, i.e., 25.09.2007 (Annexure-P-12) is also under challenge. The matter was then adjourned to 14.11.2007 for Management's evidence. Shri Ashok Yadav, Manager (P/A) tendered his affidavit. Alongwith the said affidavit Ex.R-1 to Ex.R-27 were also produced before the Labour Court and submitted Ex.R-1 to Ex.R-27. Then, the case was fixed for arguments on 21.11.2007, on which date the arguments were heard in the pre-lunch session and the impugned Award dated 21.11.2007 (Annexure-P-14) was passed by the Labour Court in the post-lunch session, rejecting the claim of the petitioner/Workman. In the background of this factual position, he submits that firstly, the Order dated 28.05.2004 (Annexure-P-8), shifting the onus upon the petitioner/Workman from the respondent/Management is not sustainable as when the respondent/Management had already been directed to produce its evidence, the application preferred by the respondent/Management should have been rejected. His further submission is that ample opportunities were given to the respondent/Management to produce its evidence by the Labour Court and, thus, grave prejudice had been caused to the petitioner/Workman and one opportunity may be granted to the petitioner/Workman to produce his entire evidence before the Labour Court, so that the matter could be decided on merits. The petitioner/Workman had already appeared before the Labour Court, where his examination-in-chief stood recorded and it was only the cross-examination, which was to be conducted by the respondent/Management. His further submission is that the ex-parte proceedings initiated against the petitioner/Workman, vide Order dated 25.09.2007 (Annexure-P-12) and the Award dated 21.11.2007 (Annexure-P- 14), passed by the Labour Court deserve to be set aside, giving an opportunity to the petitioner/Workman to adduce his evidence before the Labour Court. He further contends that since the termination of the services of the petitioner/Workman was in violation of the provisions of Section 25-F of the Act, as the date of appointment and date of termination is not in dispute nor is it disputed by the respondent/Management that he had not completed 240 days in service in the 12 preceding months from the date of termination of the petitioner/Workman, cannot be said to be in accordance with law, thus, the petitioner/Workman is entitled to reinstatement in service with all consequential benefits. On the other hand, counsel for respondent/Management submits that the petitioner/Workman joined the post of Machinist on 16.01.1995 with the respondent/Management. He was on probation and was habitual absentee. A letter was written to him on 28.08.1995, pointing out about his being absent. Till 28.08.1995, he had remained absent for 35 days. He submitted his apology letter dated 16.09.1995 and on the same date, a warning was given to him. Since his work was not found to be satisfactory, his probation period was extended by six months, i.e., upto 01.07.1996. On 30.01.1996, the petitioner/Workman misbehaved with his superiors as he was not performing his job properly. Consequently, a charge-sheet dated 01.02.1996 was issued to him. The work and conduct of the petitioner/Workman did not improve and another letter was issued to him pointing out the details of complaints. These complaints were raised for not behaving properly with the supervisor, not being present on his job, not doing work and spending time here and there and, thus, a letter dated 09.05.1996 was served upon him. The petitioner apologised in writing for his misbehaviour with the superiors, vide letter dated 01.06.1996. A final warning was given to him, vide letter dated 03.06.1996. The petitioner/Workman did not improve his conduct and started absenting himself from duty with effect from 17.06.1996 without any intimation. This was during the period of probation of the petitioner/Workman. After 17.06.1996, the petitioner/workman came to the factory on 01.07.1996 to take his salary for the month of June, 1996. On this date, a letter was prepared and an effort was made to give him the same pointing out his absence from duty and informing him to report for duty within three days. He refused to receive the same on 01.07.1996, but then came on 02.07.1996 and received the said letter. No information was received in response to the letter dated 01.07.1996 nor did the petitioner/Workman report for duty, but instead preferred a demand notice dated 01.08.1996. The matter went for conciliation proceedings before the Labour Commissioner and the Labour Commissioner on 11.09.1997 ordered the respondent/Management that whereas they have terminated the services of the petitioner/Workman, he be asked by the Management to report for duty. In furtherance to the memo issued by the Labour Commissioner, the Management issued a letter dated 15.09.1997, asking the petitioner/Workman to report for duty, when the petitioner/Workman did not come then second communication was sent on 22.09.1997, but without any results. Thereafter, the third and final notice was sent on 08.10.1997, but the petitioner/Workman did not report for duty and consequently the name of the petitioner/Workman was dropped from the muster rolls on 16.10.1997. He contends that the name of the petitioner/Workman continued on the muster rolls from the date of his absence till it was finally dropped on 16.10.1997, which shows that the petitioner/Workman had willfully absented himself from duty and had abandoned the job. Accordingly, he states that the Award passed by the Labour Court is in accordance with law. As regards, the Order dated 28.05.2004 (Annexure-P-8), passed by the Labour Court, shifting the onus on the petitioner/Workman by allowing the application of respondent/Management, he submits that the same was in accordance with law as the onus with regard to proving that the termination of the services of the petitioner/Workman was not in accordance with law, was upon the petitioner/Workman as it was his assertion on which basis the said issue was framed. In support of this contention, he relies upon the judgment of Hon'ble the Supreme Court in the case of Range Forest Officer Versus S.D. Hadimani 2002 (3) SCC 25. He on this basis contends that the said Order is in accordance with law. As regards the passing of the Order dated 21.08.2007 (Annexure-P-11), vide which the evidence of the petitioner/Workman was closed, he contends that after passing of the Order dated 28.05.2004 (Annexure-P-8), the case was fixed for 06.01.2005 for evidence of the petitioner/Workman. On the said date, no evidence of the petitioner/Workman was present and thereafter, the case was fixed for 30.05.2005, 13.12.2005, 24.10.2006, 05.12.2006 and 16.01.2007 for evidence of the petitioner/Workman, but on none of the occasions, the witness of the petitioner/Workman was present. He has referred to para-2 of the preliminary objections taken in the written statement, wherein the zimni orders passed by the Labour Court have been reproduced. A perusal of the same shows that costs were also imposed on three occasions for none of the prosecution witnesses being present. On 16.01.2007, the case was adjourned to 28.03.2007, when examination-in-chief of the petitioner/Workman was recorded and the cross-examination was deferred. The case was thereafter, fixed for 25.09.2007. On the said date, neither the petitioner/Workman was present nor his authorised representative. Consequently, the matter was proceeded as ex-parte, vide Order dated 25.09.2007 (Annexure-P-12). The matter was then adjourned to 14.11.2007 for management witness, when Shri Ashok Yadav, Manager (P/A) tendered his affidavit alongwith Ex.R-1 to Ex.R-27. The case was then adjourned to 21.11.2007 for arguments, when the case was heard by the Labour Court and the Award was passed. On the basis of these sequences of things, there is no merit in the submissions made by the petitioner/Workman in the present writ petition and, therefore, the same deserves to be dismissed. His further contention is that the Award was announced on 21.11.2007 and it was published on 30.11.2007. After thirty days of the publication of the Award, the said Award becomes operative and no writ petition was preferred by the petitioner/Workman for a long time and the present writ petition has been preferred on 15.07.2009, i.e., after a delay of almost two years after passing of the Award. On this ground also, he prays that no interference is called for by this Court. I have heard counsel for the parties and have gone through the records of the case. The first Order under challenge in the present writ petition is dated 28.05.2004 (Annexure-P-8), vide which the onus to prove that the termination was not in accordance with law was firstly on the petitioner/Workman. It is a settled proposition of law that the contention, which is raised by a party, which is taken as an issue by the Court, proceeding with the trial, the said party is burdened to prove the said assertion. It is the petitioner/Workman, who had asserted that his termination was not in accordance with law and, therefore, the burden of proving the same had to be discharged by the petitioner/Workman by adducing his evidence first and accordingly, the petitioner/Workman had to adduce his evidence at the first instance. It is only thereafter, that an opportunity had to be given to the respondent/Management to prove that the termination of services of the petitioner/Workman was justified after the initial onus of proving stood discharged by the petitioner/Workman. Various judgments have been relied upon by the Labour Court in support of its Order, which in my view are fully applicable to the case and, therefore, the Order dated 28.05.2004 (Annexure- P-8) is in accordance with law and cannot be faulted with. The second Order under challenge is dated 21.08.2007 (Annexure-P-11), vide which the evidence of the petitioner/Workman was closed by order of the Court as no prosecution witness was present. A perusal of the record shows that the petitioner/Workman was given six effective dates for adducing his evidence, i..e, 06.01.2005, 30.05.2005, 13.12.2005, 24.10.2006, 05.12.2006, and 16.01.2007, but on none of these occasions any prosecution witness was present. As a matter of fact, on 24.10.2006, Rs. 100/- was imposed as costs, last opportunity was granted and the case was adjourned to 05.12.2006. On 05.12.2006, costs were paid, but no prosecution witness was present. The case was then adjourned to 16.01.2007 for the evidence of the petitioner/Workman subject to Rs. 200/- as costs with last opportunity. On 16.01.2007, again cost was paid, but no petitioner's witness was present. The case was thereafter, adjourned to 28.03.2007 for evidence of the petitioner/Workman subject to cost of Rs. 500/- with last opportunity. On 28.03.2007, the petitioner/Workman appeared before the Labour Court, when his examination-in-chief was recorded, but the cross-examination was deferred as affidavit and documents were supplied to the authorised representative of the petitioner/Workman in the Court. The case was then adjourned to 25.09.2007 for remaining evidence of the petitioner/Workman. On 25.09.2007, neither the petitioner/Workman appeared before the Labour Court nor his authorised representative came present. The case was called several times, but as none appeared, the Court proceeded to pass ex-parte order against the petitioner/Workman and the case was adjourned to 14.11.2007 for ex-parte evidence of the respondent/Management. No application for setting aside the Order dated 25.09.2007 (Annexure-P-12) was preferred by the petitioner/Workman nor had any reason been spelt out in the present writ petition as to why the petitioner/Workman and his authorised representative could not appear before the Court. On 14.11.2007, again neither the petitioner/Workman appear before the Labour Court nor his authorised representative. Ex-parte evidence of the respondent/Management was recorded, when Ashok Yadav/RW-1 tendered his affidavit as also the documents Ex.R-1 to Ex.R-27 in order to support his submissions. The case was thereafter, fixed for 21.11.2007 for arguments. On this date also, none preferred to appear before the Labour Court on behalf of the petitioner/Workman. The Labour Court heard the arguments and passed the Award. No efforts were made by the petitioner/Workman in joining the proceedings of the Labour Court. This leaves no manner of doubt that the petitioner/Workman was not interested in pursuing his claim before the Labour Court as none had appeared before the Labour Court on 21.08.2007, when the evidence of the petitioner/Workman was fixed by order, on 25.09.2007, when petitioner/Workman was ordered ex-parte, on 14.11.2007, when ex-parte Management evidence was recorded and thereafter, on 21.11.2007, when arguments were heard and the Award was passed. Nothing has come on record to suggest that any efforts were made by the petitioner/Workman what to say justifiable reasons for non appearance before the Labour Court or any efforts were made by the petitioner/Workman to take remedial steps for repairing the damage done to his claim because of his non appearance as well of his authorised representative before the Labour Court. Thus, Order dated 21.08.2007 (Annexure-P-11), vide which the evidence of the petitioner/Workman was closed as no prosecution witness had come present despite earlier six effective opportunities granted by the Labour Court and Order dated 25.09.2007 (Annexure-P-12), when neither the petitioner/Workman or his authorised representative appeared before the Labour Court, leaving the Labour Court with no option, but to proceed ex- parte against the petitioner/Workman, cannot be said to be not in accordance with law or can be faulted with. Accordingly, these Orders are upheld. Now, coming to the Award dated 21.11.2007 (Annexure-P-14), there being no evidence on record on behalf of the petitioner/Workman, i.e., he himself was only examined in chief on 28.03.2007, when the cross- examination was deferred and the petitioner/Workman did not appear for his cross-examination on 21.08.2007, when the evidence of the petitioner/Workman was closed by Order, the only evidence, which the Labour Court had on its record was the evidence of the respondent/Management. The Labour Court on the basis of the evidence produced by the respondent/Management had proceeded to decide the reference. The findings, therefore, as recorded by the Labour Court are fully justified and in accordance with law, which cannot be faulted with. In any case, as per the pleadings referred to above and the submissions made by counsel for the parties, it is borne out that the petitioner/Workman had abandoned the job. The documents have been produced by respondent/Management before the Labour Court showing that after conciliation proceedings failed, the Labour Commissioner ordered, vide letter dated 11.09.1997, the respondent/Management to ask the petitioner/Workman to report for duty. In furtherance to this order, the respondent/Management issued letter dated 15.09.1997, asking the petitioner/Workman to report for duty. The second communication was sent on 22.09.1997, but to no avail. The petitioner/Workman did not report for duty and the third and final notice was sent to the petitioner/Workman, advising him to report for duty immediately, vide letter dated 08.10.1998, which also did not yield any result. From the date of his absence from duty, i.e., 17.06.1996 onwards, the name of the petitioner/Workman was reflected in the muster rolls. His name figured in the muster rolls till it was dropped on 16.10.1997. Despite of giving him third and final notice dated 08.10.1997 to report for duty immediately, he did not respond. The respondent/Management had, thus, been able to prove that the petitioner/Workman had abandoned the job as he had not reported for duty with effect from 17.06.1996. The impugned Award dated 21.11.2007 (Annexure-P-14) is, thus, in accordance with law 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 April 05, 2010. sjks. Whether referred to the Reporter : Yes.