IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 1812 of 2008. Date of Decision : April 23, 2009. Baldev Singh. ....... Petitioner. Versus. Presiding Officer, Labour Court, Gurdaspur, and others. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Ms. Divya Sharma, Advocate, for the petitioner. Ms. Geeta Sharma, Advocate, for the respondents No. 2 and 3. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 29.10.2007 (Annexure-P-1), passed by Labour Court, Gurdaspur, vide which the reference has been answered against the workman. Counsel for the petitioner contends that the workman was appointed on Watch and Ward duty on daily wage basis w.e.f. March, 1994. She contends that he continued to work with the Management till 08.12.1998 when on this stage his services were terminated. While terminating the services of the workman, no show cause notice, no inquiry or compensation as provided under the Industrial Disputes Act, has been paid to him. She contends that as per the details given by the workman, the workman has completed 294 days in the 12 preceding months from the date of his termination i.e. 05.12.1998. This factual position has not been disputed by the respondent-management in the reply filed in this Court. She further contends that since the workman has completed more than 240 days in the 12 C.W.P. No. 1812 of 2008. preceding months from the date of his termination although the workman may not be entitled to reinstatement in service but would be entitled to compensation in view of the law laid down by 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 Judgment of this Court in the case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788. On the other hand, counsel for the respondents contends that the service of the workman was never terminated by the respondent- management. He had after 05.12.1998 never turned up for work. She further contends that the workman had indeed abandoned the job and therefore, was not entitled to the benefit as claimed by the workman under Section 25-F of the Industrial Disputes Act. I have heard counsel for the parties and have gone through the records of the case. In view of the undisputed factual position that if the date of termination is taken on 05.12.1998, the workman had completed 294 days of service in the 12 preceding months from the date of his termination, the workman was entitled to the protection of Industrial Disputes Act as provided in Section 25-F of the Industrial Disputes Act. That being the position, the onus was on the respondent-management to prove their assertion that the workman had abandoned the job. Perusal of the award and the contention as raised by counsel for the respondent-management has neither been accepted by the Labour Court nor is there any evidence on record to substantiate the contention. No communication has been placed on record to substantiate this contention. The onus is on the party which makes an assertion about a particular defence before the Court to substantiate the -2- C.W.P. No. 1812 of 2008. same. In case the said assertion is not justified or substantiated or proved before the Court, the onus on that party having not been discharged, it cannot be granted the said benefit of such assertion. The contention, therefore, as raised by counsel for respondent-management, cannot be accepted, as has also not been rightly accepted by the Labour Court. It is not in dispute that the workman was appointed on daily wage basis and he continued as such till the date of his termination. Although, the provisions as contained in Section 25-F of the Industrial Disputes Act, having not been complied with but still since the post on which the workman is seeking reinstatement, is a public post which was not filled up in accordance with statutory rules, governing the service and the mandate as provided under Articles 14 and 16 of the Constitution of India for filling up of public post, not being complied with, the workman would not be entitled to reinstatement in service as has been held by 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, however, in the light of the fact that the provisions contained in the Industrial Disputes Act especially Section 25-F having not been complied with, the termination of services of the workman cannot be said to be in consonance with the Industrial Disputes Act. That being so, the workman would be entitled to compensation in lieu of reinstatement and wrongful termination. 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 -3- C.W.P. No. 1812 of 2008. case of State of Haryana Versus Ishwar Singh and another (supra), has held the workman would be entitled to compensation in such like cases. Following the dictum of Hon'ble the Supreme Court and Division Bench judgment of this Court referred to above, I am of the considered view that the workman would be entitled to compensation to balance equity between the parties. Since, the workman, as per the admitted position, has worked with the respondent-management from March, 1994 till 08.12.1998 i.e. almost 5 years, the workman is held entitled to compensation of Rs. 50,000/-. Direction is issued to the respondents No. 2 and 3 to release the amount of compensation to the workman within a period of two months from the date of receipt of certified copy of the order. The writ petition stands disposed of accordingly. (AUGUSTINE GEORGE MASIH) JUDGE April 23, 2009. sjks. -4-