IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 2199 of 2009. Date of Decision : May 25, 2009. Executive Engineer, P.W.D. (B/R), Provincial Division No. 2, Near Palace Cinema, Rohtak. ....... Petitioner. Versus. Shri Balbir Singh s/o Shri Jai Lal, V.P.O. Kahnaur Tehsil and District 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. N.C. Kinra, Advocate, for the respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 20.08.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the reference has been answered in favour of the workman, holding him entitled to reinstatement on his previous post with continuity of service and 50% back wages from the date of demand notice i.e. 16.01.1997. Counsel for the petitioner contends that while drawing adverse inference, the Labour Court has totally overlooked the fact that the Department was unable to produce records as the same were washed away in the flood. He contends that due to non-availability of the records, the same could not be produced before the Labour Court and, therefore, the adverse inference drawn by the Labour Court, is not justified. He further contends that the working details of the workman which was produced by M.W.1 Shri K.L. C.W.P. No. 2199 of 2009. Singhal, S.D.O. P.W.D. (B/R), Rohtak, which was produced as Ex.M.1, should have been taken into consideration by the Labour Court while passing the award. He on this basis contends that the award passed by the Labour Court cannot be sustained and the findings which have been recorded by the Labour Court, deserve to be set aside. On the other hand, counsel for the respondent No.1 contends that the award passed by the Labour Court is justified as the workman would not maintain his record for the reason that no appointment letter or salary slips were issued to the workman as these are not issued to the daily wagers and only the muster rolls are maintained by the Management, which are in their possession and, therefore, the records are required to be maintained by the Management and for non production thereof, the Court has rightly drawn adverse inference. He contends that the records having been washed away in flood, Ex. M.1, depiction of the work the workman put in with the Management, cannot be expected to be correct in absence of the records. He accordingly, supports the award passed by the Labour Court and contends that the same deserves to be upheld. I have heard counsel for the parties and have gone through the records of the case. Perusal of the award would show that the records of the Management was produced by W.W.2 Joingder Singh who was workman witness but was an official who was called upon by the Labour Court to produce relevant records has stated that the said records, was washed away in flood and, therefore, he was unable to produce the same. It is not in dispute that the workman was engaged on daily wage basis as Beldar by the Management who is not given any appointment letter nor is accordingly given termination order. No pay bills or other certificates were issued with -2- C.W.P. No. 2199 of 2009. regard to period of service he rendered with the Management. The records are fully maintained and kept in possession by the Management in the form of muster rolls which the witness although called for by the workman in whose possession the records are kept and when such official who is called upon by the Court to produce relevant records, makes statement that the same are not available, the Court has no option but to decide the case in the absence of the said records. When the Management, which is in possession of the records fails to produce the same, adverse inference, as in the present case, is to be drawn and rightly so. As regards the contention of counsel for the petitioner that the working details Ex.M.1 which was produced by the Management should have been taken into consideration for assessing the period of work by the workman with the Management also loses its significance in the light of the admitted position that the records was washed away in the flood and in the absence of the record, no working details could have been prepared by the Management as it is not the personal knowledge of official concerned but the same has to be prepared on the basis of records alone. Counsel for the petitioner states that records were there but the said records were not relevant for the reason that the muster rolls which depicts the period of work the daily wager performed his duty, was not available. In this view of the matter, the adverse inference drawn by the Labour Court against the Management, is fully justified. Faced with this situation , counsel for the petitioner contends that since it is a public post and the same having not been filled up in consonance with the statutory rules governing the service as mandated -3- C.W.P. No. 2199 of 2009. under the constitutional scheme for filling up the public post, the award regarding reinstatement of the workman as well as back wages cannot be sustained. He relies upon the 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, wherein Hon'ble the Supreme Court 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 in the present case 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 has completed 240 days of service, the workman is not entitled to be reinstated and also for grant of back wages. The workman 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 is he entitled to any back wages. However, he is entitled to compensation in lieu of reinstatement in view 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. In view of the judgment of Hon'ble the Supreme Court in the case of Telecom District Manager and others Versus Kesheb Deb (supra), and a Division Bench judgment of this Court in the case of State of -4- C.W.P. No. 2199 of 2009. Haryana Versus Ishwar Singh and another (supra), the workman is held entitled to compensation in lieu of reinstatement. As per finding given by the Labour Court, the workman had worked from 20.01.1985 to 31.01.1996 i.e. for eleven years, the workman is held entitled to compensation of Rs. 1,10,000/- in lieu of reinstatement. The present writ petition is allowed. The impugned award dated 20.08.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum- Labour Court, Rohtak, is set aside. The workman is held entitled to compensation of Rs. 1,10,000/- The petitioner is directed to release the said amount i.e. Rs. 1,10,000/- to the workman 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 May 25, 2009. sjks. Whether referred to the Reporter : Yes / No. -5-