1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.7609/05 Babu Lal Saini vs. RFC & Ors. Date of order : 7/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri B.B.L. Sharma for the petitioner. Shri Prahlad Singh for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner-workman challenging the award of the learned Labour Court, Bharatpur dated 22.7.2005. The appropriate Government made reference to the Labour Court on the question whether termination of the petitioner-workman by the respondent with effect from 1.12.1994 was legal and justified. The Labour Court in the aforesaid award held that such termination was valid and that the petitioner-workman was not entitled to any relief. Shri B.B.L. Sharma, learned counsel for the petitioner has argued that the learned Labour Court has completely failed to examine the case set up by the petitioner in his statement of claim. It was argued that 2 the petitioner in his statement of claim categorically stated that he was initially appointed with respondents on 1.7.1993 and continuously worked with them till 30.11.1994 and beyond that he was not allowed to work and that is why the appropriate government in the terms of reference indicated therein held its date of his removal to be 1.12.1994. It was argued that the petitioner duly proved his case as set up in his statement of claim and his testimony remained unshaken even in the cross examination. It was argued that even the own witness of respondent Ashok Kumar, Deputy Manager, Rajasthan Financial Corporation under whose control the petitioner was working, in his cross examination, has stated that initial appointment of the petitioner was made on 1.7.1993 and he was entrusted the work of Chowkidar in the sick unit taken possession of by RFC. In reply to the question that the petitioner worked from 1.7.1993 till 30.11.1994, he admitted that the petitioner worked during his tenure from 1.7.1993 till April, 1994. Learned counsel for the 3 petitioner has argued that this witness further stated that monthly wages of the petitioner upto the month of April, 1994 was paid. There was thus a clear admission as to the working of the petitioner from 1.7.1993 to April, 1994 which proved that petitioner worked for more than 240 days. Learned counsel for the petitioner further submitted that as regards the other period whatever documents or the evidence that the petitioner had at his command was produced, but for other records, he filed an application before the learned Labour Court on 11.9.1988, specifically stating therein that the petitioner worked with the respondents from 1.7.1993 till 30.11.1994 continuously and without any interruption and all papers relating to his working are in possession of the respondents, therefore, the respondents should be directed to produce pay vouchers and attendance registers and other relevant records relating to the aforesaid period. The learned Labour Court issued direction to the respondents for production of such records on 7.1.1999. The respondents deliberately 4 did not produce the pay vouchers and attendance register for the period from 1.7.1993 till 30.11.1994 instead they tried to mislead the Court by producing the documents relating to the month of September, 1992, November, 1992, December, 1992 and April, 1993 to show that the petitioner worked during those days but withheld the other documents. Learned counsel submitted that the fact is that in spite of specific direction by the Labour Court, the respondents did not produce the relevant record, which was sufficient for drawing the adverse inference against them even for the period from May to November, 1994 and for the other period but the learned Labour Court has not at all referred to either this aspect of the matter or to the statement of Ashok Kumar. The aforesaid witness has nowhere been mentioned in the award and has uniformally considered the evidence to hold that the petitioner was not able to produce the evidence and thus failed to prove that he worked for 240 days in the calender year immediately preceding the date of his termination. 5 Shri Prahlad Singh, learned counsel for the respondents opposed the writ petition and submitted that the petitioner was never engaged on regular basis. His engagement was made only on casual basis. When necessity arise, he was required to work as Chowkidar at the premises of the sick unit which was taken possession of by the RFC under the State Financial Corporation Act. When the requirement ceased to exist, the service of the petitioner was discontinued. It was argued that petitioner failed to prove by lead of positive evidence before the Labour Court that he actually worked for 240 days in the calender year preceding the date of his alleged retrenchment. The learned Labour Court in this regard has given categorical finding. Learned counsel referred to the discussion made by the learned Labour Court in para 13 of the award and submitted that whatever documents were relating to the working of the petitioner with them were not actually produced. There was no question of any adverse inference being drawn against the respondents. The Labour Court passed a just and reasonable order by holding that 6 there was no illegality in the order of removal of the petitioner. He was therefore not entitled to any relief. I have given my anxious consideration to the arguments aforesaid and perused the material on record as also the impugned award. The learned Labour Court in the award has mainly proceeded on the footing that burden of proof to show that the petitioner worked with the respondents for 240 days in the calender year preceding the date of his retrenchment was on the petitioner-workman himself. It was held that when the burden of proof was on the workman, mere failure of the management not to produce documents relating to the aforesaid period cannot be a basis for drawing an adverse inference against them. The learned Labour Court has though made reference to the application of the petitioner dated 11.9.1998 and its order dated 7.1.1999 requiring the respondents to produce the relevant records. But then the Labour Court has refrained from drawing an adverse inference against the management- petitioner precisely for the reason that 7 initially the burden of proof on this aspect lay on the workman. The learned Labour Court upheld the stand of the workman that with the necessity ceasing to exist, the respondent could discontinue the petitioner from their services. A perusal of the award of the Labour Court clearly show that it is conspicuously silent as to the implementation of the clear admission made by the own witness of the respondents that petitioner had worked during his tenure for the period from 1.7.1993 till April, 1994 and he was paid the wages for each of this month. The Labour court has also not considered the other part of the statement in which the said witnesses stated that it was RFC which shall have to take any action for the indecent of the petitioner. The Labour Court has also not dealt with that aspect of the matter that if the respondents in spite of being specifically required to produce the attendance register and pay vouchers for the period from 1.7.1993 to 30.11.1994 in spite of specific order of the Court in that behalf could that still be a reason for holding that since burden of 8 proof lay on the petitioner, therefore, no adverse inference would be drawn against them for withholding that document, more particularly when the respondents produced such some documents with regard to the period of the month September, October, November and December, 1992 and April, 1993. This was done by the respondents in the specific case set up in the statement of claim that is working was from 1.7.1993 to 30.11.1994 which fact was supported by the witness. In the facts of the case, the finding recorded by the learned Labour Court is wholly perverse and cannot be upheld in so far the working of the petitioner for 240 days in the calender year immediately preceding the date of his retrenchment is concerned. The petitioner has certainly been able to prove that he worked for 240 days in the calender year. Coming next to the argument whether the petitioner at this stage when admittedly its own case is that he was engaged as Chowkidar and deputed to work with the unit which was temporarily taken possession of by RFC and 9 was required to go from one unit to another at difference places. This certainly cannot be said to be appointment of regular nature and requirement of such work cannot be existing on perennial basis. In the facts of the case, the direction for reinstatement of the petitioner at this stage when more than 14 years have gone by from the date of his alleged retrenchment on 1.12.1994 would not be justified. The ends of justice in the facts of the case be met if the respondents are directed to pay to the petitioner-workman a sum of Rs.1,00,000/- as lump sum compensation in lieu of reinstatement. Compliance of the judgement be made within period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/