CWP No. 6732 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 6732 of 2009 Date of Decision:May 04, 2009 Municipal Council Samana, Samana, District Patiala, Punjab through its Executive Officer ---PETITIONER VERSUS Radha Rani and other ---RESPONDENTS Coram: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Amit Singh, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. In the present writ petition, the challenge is to the order dated 10.07.2008 passed by the Labour Court, Patiala, wherein an application under Section 33 (C) (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') preferred by the workman-Tek Chand, has been allowed. Counsel for the petitioner contends that the claim of the workman is barred by limitation as the claim made by the workman is from 01.01.1989 to 29.02.2000. He, on this basis, submits that at the most, the workman would be entitled to the claim for three years prior to the date of CWP No. 6732 of 2009 2 filing of the application under Section 33 (C) (2) of the Act. In support of this contention, counsel for the petitioner relies upon the judgment of this Court rendered in CWP No. 1362 of 2006 titled as Municipal Council, Samana vs. Presiding Officer, Labour Court and another, decided on 16.05.2006. He further contends that the onus was on the workman to prove that he had worked with the Management in the Octroi Branch during the claim period i.e. 01.01.1989 to 29.02.2000. The workman has failed to prove his assertion made in the claim petition as no documentary evidence has been produced to substantiate his claim. Having failed to discharge his onus, the claim, as granted by the Labour Court, is not sustainable and deserves to be rejected. I have heard the counsel for the petitioner and have gone through the records of the case. The Labour Court had framed six issues, which reads as follows: “1. To what amount, if any, the applicant is entitled? OPA 2. Whether the application is not maintainable? OPR 3. Whether the applicant is a 'workman' as defined under the Industrial Disputes Act, 1947? OPR. 4. Whether the respondent is not an industry as defined under the Industrial Disputes Act, 1947? OPR 5. Whether the applicant has no locus standi to file the present application? OPR 6. Relief.” CWP No. 6732 of 2009 3 At the time of arguments before the Labour Court, issues No. 2 to 5, onus to prove thereof was on the Management, were not pressed by the Authorized Representative of the petitioner-Municipal Council. The only issue that was left out to be decided by the Labour Court was issue No. 1. At the outset it can be said that the Hon'ble Supreme Court in the case of East India Coal Company vs. Rameshwar, AIR 1968 SC 218 and thereafter in State of Hyderabad vs. V.K.Bindi, AIR 1970 SC 196 has held that there is no limitation provided for making a claim under Section 33 (C) (2) of the Act. That being so, the contention of the counsel for the petitioner cannot be sustained and even on facts of the present case, the contention of the counsel cannot be accepted. The applicant-workman preferred a writ petition in this High Court in the year 1992. This Court dismissed the writ petition and the parties approached the Hon'ble Supreme Court. The same came to be decided by the Hon'ble Supreme Court on 15.03.2000. In the said judgment of the Hon'ble Supreme Court, which is reported as Municipal Employees Union (Regd.) Sirhind and others vs. State of Punjab and others, (2000) 9 Supreme Court Cases 432, held the workmen entitled to be given monetary compensation for working on Saturdays by grant of extra wages for each of the working Saturdays, on which the workmen are shown to have discharged their duties. It would not be out of way to mention here that the petitioners in the writ petition had claimed that they were working as Clerks and Peons at Octroi Check Post and Barriers run by the Municipal Committees and were entitled to be paid for each of the Saturdays, on which they worked at the Octroi Post and CWP No. 6732 of 2009 4 Barriers while their colleagues in the Municipal Committees concerned were permitted to enjoy those Saturdays as holidays. The Hon'ble Supreme Court granted liberty to the workmen for filing appropriate application under Section 33 (C) (2) of the Act to claim extra wages for each of the Saturdays on which they had worked while their colleagues in the offices of the Municipal Committees had enjoyed the benefit of leave on Saturdays. It was further stated in the order that the workmen would not be entitled to get more monetary benefit, save and except, for the period of three years immediately preceding the filing of the writ petitions in the High Court and thereafter, continuously up to date. It is not in dispute that the applicant-workman had preferred a writ petition in the beginning of 1992 in High Court and the case was finally decided by the Hon'ble Supreme Court on 15.03.2000 along with the case Municipal Employees Union (Regd.) Sirhind and others (supra). The application under Section 33 (C) (2) of the Act, as per the observations of the Hon'ble Supreme Court, was preferred by the workman on 28.06.2000. In this view of the matter, by no stretch of imagination, can the application preferred by the workman be said to be delayed or barred by limitation? Within a few months of the disposal of his case by the Hon'ble Supreme Court, the workman has approached the Labour Court for his claim. The submission of the counsel for the petitioner, therefore, with regard to the claim being barred by limitation, is totally misconceived and is, hereby, rejected. The judgment relied upon by the counsel for the petitioner i.e. Municipal Council, Samana (supra) is not applicable to the present case as a perusal of the same does not indicate that the applicant in the said case CWP No. 6732 of 2009 5 had preferred a writ petition before this High Court, which came to be finally decided by the Hon'ble Supreme Court vide its order dated 15.03.2000. Further, the directions given by the Hon'ble Supreme Court have been reproduced by the Court in the said order, which clearly states the position, as has been referred to above. Therefore, no benefit can be claimed by the petitioner of the said judgment. The next contention, which has been raised by the counsel for the petitioner i.e. with regard to proving the assertion by the workman as made by him, again deserves to be rejected for the simple reason that although the onus was on the workman to prove before the Labour Court with regard to the Saturdays, he had worked with the petitioner-Municipal Council, a positive assertion was made in the affidavit filed before the Labour Court with regard to the workman having worked with the Management on the Saturdays during the period of claim. An application was moved in the Labour Court for directions to the Municipal Council to produce relevant attendance record for the period 01.01.1989 to 29.02.2000. The Municipal Council only produced the records for the period October, 1990 to January, 1995. Except for the said period, remaining attendance record was not produced before the Labour Court. The workman discharges his onus, when he moves an appropriate application before the Labour Court for production of the official record, which is only available with the Management and are required to be maintained by the Municipal Council. Despite of a direction by the Court, on an application moved by the workman, the Municipal Council, who is the custodian of the records, if fails to produce the same or does not produce the same, for this act of CWP No. 6732 of 2009 6 omission and commission on the part of the Municipal Council, the workman cannot be held responsible. It cannot be said that the workman is unable to prove his claim before the Labour Court. The workman in exercise of his due diligence takes due care and caution to seek the production of the records and, accordingly, moves an application before theLabour Court. Orders for production of the records were made by the Labour Court, which the Municipal Council failed to produce. The workman has, thus, discharges his onus and, therefore, adverse inference for non-production of the records, has to be drawn against the Management by the Court, which has rightly been drawn by the Labour Court in the present case. The Municipal Council cannot be allowed to take undue benefit of its own wrong and lapse, where it fails to produce the records summoned by the Court and then to turn around and say that the workman has failed to prove his claim as made before the Labour Court. The contention, therefore, as raised by the counsel for the petitioner, cannot be sustained and is, hereby, rejected. A perusal of the order dated 10.07.2008 (Annexure P-4) would further show that on the basis of the records produced by the Municipal Council, the Labour Court has granted the relief to the workman. Whatever records were produced before the Labour Court and on perusal thereof, wherever the claim of the workman was not found to be justified, the said claim has been rejected by the Court. The order passed by the Labour Court is fully justified and is in accordance with law. The findings, as recorded by the Labour Court, are based on the pleadings and the evidence led by the CWP No. 6732 of 2009 7 parties and no illegality can be said to have been committed by the Labour Court while passing the impugned order, which would persuade this Court to interfere in this petition. Finding no merit in this writ petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE May 04, 2009 pj Whether referred to Reporters..................Yes/No.