C.W.P.No.13111 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.13111 of 2009 Date of Decision:- 23.03.2010 The Divisional Forest Officer (Territorial) Bhiwani ....Petitioner(s) vs. Krishan Kumar and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Addl.A.G., Haryana, for the petitioner. Mr.Surender Deswal, Advocate, for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside the Award dated 27.10.2008 (Annexure P-1) passed by the Industrial Tribunal-cum- Labour Court, Rohtak wherein reference has been answered in favour of the respondent-workman holding him entitled to reinstatement with continuity of service and 40% back wages from the date of demand notice dated 7.10.1998. Counsel for the petitioner-Management submits that the findings recorded by the Labour Court that the workman had completed more than 240 days in the 12 preceding months by drawing an adverse inference against the Management for non-production of the records, is not justified. He contends that as per the claim of the respondent-workman, he had worked with the petitioner-Management from 1.5.1992 to 3.9.1998. It C.W.P.No.13111 of 2009 -2- is the categoric stand of the petitioner-Management that the respondent- workman had worked with it from 1.5.1992 till December, 1995 and, therefore, the records which were summoned had no relevance with the claim of the petitioner and even if the said records were not produced by the Management, no adverse inference could have been drawn by the Labour Court against the Management giving the benefit thereof to the workman. His further contention is that the appointment of the workman is not in consonance with the statutory Rules governing the service and in violation of Articles 14 and 16 of the Constitution of India. He, therefore, contends that no order of reinstatement could be passed in favour of the respondent- workman and, therefore, the Award passed by the Labour Court cannot be sustained. On the other hand, counsel for the respondent-workman submits that the workman had submitted his demand notice wherein he has stated that he was appointed as Mali on 1.5.1992 by the Management. He continued to work with the petitioner-Management till 1.10.1998 when his services were terminated, verbally without assigning any reason or any reasonable cause. He contends that the workman had contended that he had continuously worked with the Management and had completed more than 240 days in service in the 12 preceding months from the date of his termination. The termination of the services of the petitioner was in violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) as no notice or pay in lieu thereof nor any retrenchment compensation was paid as mandated under the Act for terminating the services of the workman. He further contends that the Management had not taken the plea with regard to the nature of appointment C.W.P.No.13111 of 2009 -3- of the workman or the same being not in consonance with the Statutory Rules governing the service or in violation of Articles 14 and 16 of the Constitution of India. He contends that neither in response to the demand notice, nor in the claim statement nor in the evidence, such a plea was taken by the Management before the Labour Court and, therefore, the said plea cannot be allowed to be raised for the first time before this Court. His further contention is that in the light of the specific contention of the respondent-workman that he had continued to work with the Management till 30.9.1998, the records which were relevant to prove that the workman had completed 240 days in service in the 12 preceding months from the date of his termination, were from October 1997 to September 1998, which the Management had not produced before the Labour Court. He, therefore, contends that the adverse inference which has been drawn by the Labour Court against the Management is fully justified and the findings which have been recorded by the Labour Court is in consonance with law and, thus, 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 petitioner had claimed that his appointment as Mali was made by the Management on 1.5.1992. His work and conduct was satisfactory. He continued to work as Mali with the petitioner-Management till 30.9.1998 and on the next day, i.e. on 1.10.1998, his services were terminated verbally without assigning any reason or any reasonable cause or any notice or pay in lieu thereof or any retrenchment compensation was paid to the workman on such termination of services. To prove this contention, the workman had summoned the records of the Management. C.W.P.No.13111 of 2009 -4- The witness who appeared as a workman-witness, but an official, on the basis of the records stated that he had not brought the relevant record. The Labour Court, therefore, has proceeded to draw an adverse inference which is in accordance with law. That apart, the stand of the Management was that the workman was appointed as a daily wager on 1.5.1992 and had worked upto December, 1995. In support of this, the Management had placed on record the working details as Exhibit M-1 and the muster rolls as Exhibits M-2 to M-18. As per the working details Exhibit M-1, the workman was stated to have worked for only 89 days in the year 1995. However, when the Management witness i.e. Mahender Singh Malik, Block Forest Officer, Charkhi Dadri appeared as MW-1 before the Labour Court, he had admitted that the workman had worked with the Management from 1992 to 1998 at Paintawas and Mankawas, Charkhi Dadri with heavy breaks. He had in his cross-examination further admitted that the workman had, as per the details of the muster rolls, worked for 253 days in the year 1995. On the basis of this position, the Labour Court has rightly not believed the working details Exhibit M-1 which was submitted by the Management on the ground stating that it was based upon the records. The evidence, therefore, of the Management was not relied upon by the Labour Court and rightly so, when the working details Exhibit M-1 was found to be contrary to the records for the year 1995. The stand of the Management that the workman had worked with the Management only from May 1992 to December 1995 was also found to be incorrect when the Management witness Sh.Mahender Singh Malik MW-1 had admitted in his cross- examination that the workman had worked from 1992 to 1998 with the Management. All this goes to show that the stand taken by the Management C.W.P.No.13111 of 2009 -5- was not as per the records and, therefore, the Labour Court has rightly not relied upon the evidence produced by the Management and for non- production of the relevant records, which would have gone a long way to prove as to whether the workman had completed 240 days in the 12 preceding months from the date of his termination having not been produced, the adverse inference was rightly drawn by the Labour Court. The findings which have been recorded by the Labour Court are fully justified and in consonance with law which do not call for any interference by this Court. The next contention which has been raised by the counsel for the petitioner-Management that the appointment of the respondent-workman was not in consonance with the statutory rules governing the service and in violation of Articles 14 and 16 of the Constitution of India and, therefore, reinstatement of the workman-respondent could not have been ordered by the Labour Court, also deserves to be rejected. His contention is that the said plea has been raised admittedly for the first time before this Court in the present writ petition to which the workman-respondent has chosen not to file any reply, which amounts to admission of the assertion of the Management. This assertion of the counsel for the petitioner also cannot be accepted in the light of the judgments of the Hon'ble Supreme Court in the cases of Harjinder Singh vs. Punjab State Warehousing Corporatiion, J.T. 2010 (1) S.C. 598 and in Civil Appeal No.229 of 2010 titled as Ramesh Kumar vs. State of Haryana, decided on 13.1.2010 and the judgment of this Court in C.W.P.No.7227 of 2009 titled as Executive Engineer, National Highway, PWD (B/R), Rohtak vs. Suresh and another, decided on 2.3.2010 wherein this issue was considered in detail by this Court and C.W.P.No.13111 of 2009 -6- rejected. In view of the above, I do not find any merit in the present writ petition and accordingly dismiss the same. March 23, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE