IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10069 of 2000 Date of decision:05.08.2009 Jagbir Singh ....Petitioner versus Presiding Officer,Labour Court, Faridabad and another ...Respondents 2. Civil Writ Petition No.14647 of 2000 Jagbir Singh ....Petitioner versus Authority under Payment of Wages Act, Ballabhgarh Circle, Faridabad and another ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Ms. Abha Rathore, Advocate, for the petitioner. Mr.Harsh Aggarwal, Advocate, for the respondent. --- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. Both the writ petitions are between the same parties and with the consent of the respective counsel appearing for the petitioner and the respondents they are being taken up together and disposed of. 2. The subject matter in Civil Writ Petition No.10069 of 2000 is the award passed on a reference sought by the workman complaining of his alleged termination of service on 10.06.1996. The Civil Writ Petition No.10069 of 2000 - 2 - contention by the workman was that he was appointed as a Salesman on 18.12.1992 on a due resolution passed by the Society, but he had not been paid any wages. He moved applications No.2 of 1994, 40 of 1994 and 85 of 1994 before the authority constituted under the Payment of Wages Act. The orders had been passed ex parte in application Nos.2 and 40 of 1994 and the salary was also paid by the management when he took out execution proceedings. Subsequently an application bearing No.85 of 1994 was also ordered ex parte and an application had been filed to set aside the ex parte order, which was dismissed on 11.12.1997. Yet another application was filed without disclosing the earlier dismissal order and it was disposed of on 23.07.1998 finding that there was no relationship as employer and employee and the application filed claiming salary was liable for rejection. The ex parte orders in application Nos.2 and 40 of 1994 also came to be set aside on the alleged admission of a representative of the workman to set aside the orders. 3. The orders passed by the authority under the Payment and Wages Act on 30.04.1999 is the subject of challenge in Civil Writ Petition No.14647 of 2000. The writ petitioner challenges the orders passed by the authority setting aside the ex parte orders passed in Applications No.2 and 40 of 1994 on payment of cost of Rs.200/- on the ground that he had never authorized any person to appear before the authority and the order had been obtained in collusion by the management with some obliging person purported to represent the petitioner. Civil Writ Petition No.10069 of 2000 - 3 - 4. During the trial before the Labour Court, it was an admitted fact that there was no written order of appointment or written order of termination. The petitioner's claim to the status as a Salesman was sought to be proved by requiring the management to produce the following documents:- a) Resolution proceedings register from 1.12.92 to 31.12.1993. b) Day Book from 1.12.1992 to 31.12.93. c) Kishtbandi Register from 1.12.92 to 31.12.93. d) Record of Khata No.1 to 4 from 1.12.92 to 31.12.93. The attempt of the workman was to show that there had been some entries in those books and if they had been produced before the Court, it would have revealed that he had actually been working during the relevant time as contended by him and that the contention of the respondent was not true. 5. In response to the application, the resolution proceedings register had been produced which contained reference to the fact that the petitioner had been appointed as a Salesman but the document also contained some corrections and interpolations that gave out details of the cancellation of the appointment on the ground that he was not a resident in the same area and therefore, he could not have been validly appointed. As regards the Day Book which was required to be produced, according to the learned counsel for the respondent, document had also been produced before Court, but it was not exhibited as evidence because it contained no details except the daily financial transactions of the Society and it had no bearing to the alleged functioning of the petitioner as a Salesman. The other two documents namely Kishtbandi Register and Civil Writ Petition No.10069 of 2000 - 4 - record of Khata No.1 to 4 had not been produced before the Labour Court. These documents according to the respondent's counsel could have a direct evidence on either the appointment or termination of services but the workman’s attempt was to show that he had been working during the relevant time and these registers contained entries made in the documents by his own hand. The Labour Court omitted to even note that these documents had been summoned to be produced by the workman but had observed in the order that the relevant documents were not even summoned to be produced from the management. 6. In a case where there is admittedly no appointment or termination order, it will be begging the question to require production of any document of appointment or termination. By the very nature of case and the evidence given, the proof of employment could have come only through circumstantial evidence. The learned counsel appearing for the petitioner would state that some of the members of the Society who had been at that time participants in the resolution appointing him, had even given evidence before the authority constituted under the Payment of Wages Act. However, it must be noticed that the evidence was in ex parte proceedings and the workman on whom the initial burden to establish his status did not produce their evidence and expose them to cross-examination by the management. It is undeniable that the burden of proof is always on the workman to establish his status as such and the onus will shift on the management if only some tenable evidence is available. In this case, the evidence that had been relied on were that the payments made pursuant to ex parte orders in application No.2 and 40 of Civil Writ Petition No.10069 of 2000 - 5 - 1994 by the authority under the Payment of Wages Act and the fact that there were witnesses before that authority who testified to his employment. The further reliance was on an adverse inference which according to the workman ought to have drawn against the management for non-production of all the documents sought for production before the Court. In hard cases of workman trying to establish the status when the management would have the benefit of custody all documents in their hand to prove the case of the workman, the best evidence was never brought to Court. Even the wages register admittedly could not help the party in view of the fact that wages had not been paid every month which was why even applications had to be filed before the authority under the Payment of Wages Act. The attendance register was definitely relevant and would show whether the workman had worked. The resolution book which had been filed in Court contained patent correctness and interpolations which were not properly explained nor appraised by the Labour Court. 7 Having regard to the deficiencies in the manner of appreciation of all evidence that had been filed in Court and the effect of non-production of documents, there has been, in my opinion, a gross miscarriage of justice. Either way, the decision could have been made if only the Labour Court had dealt with the relevance of documents that had been filed in Court and the inference that could have been drawn by non-production of certain documents. I am of the view that interest of justice would be best served if only the order of the Labour Court is set aside and an opportunity be given to both the parties to adduce evidence Civil Writ Petition No.10069 of 2000 - 6 - on the documents which were summoned to be produced by the workman and such other relevant documents that the workman and the management wanted to rely on. 8. The Labour Court, had while rejecting the reference and finding that there had been no employer and employee relationship, had also relied upon the findings of the authority under the Payment of Wages Act that there had been no relationship of the employer and employee. The duty of the Labour Court was to render such an adjudication and he could not have relied on the order passed by the authority itself as concluding the issue. The proceedings before the Labour Court are more formal and procedure-driven to secure the best evidence while the authority under the Payment of Wages Act exercises but a summary jurisdiction in admitted cases of relationship between the employer and employee. If there has been a reference pending before the Labour Court relating to the status as in this case it did, he ought to have awaited the decision of the Labour Court. In my view, the orders passed by the authority under the Payment of Wages Act will also be required to be set aside and the said authority shall await the decision of the Labour Court regarding the proof of relationship of employer and employee and then take up the applications for appropriate orders. 9. The award of the Labour Court and the orders of the authority under the Payment of Wages Act are, under the circumstances, set aside and the writ petitions are ordered as above. 10. The case relates to an alleged termination of services that had been taken in the year 1996 and it is requested that the Labour Court Civil Writ Petition No.10069 of 2000 - 7 - disposes of the case on a priority basis within a period of six months from the date of receipt of the records. The parties shall appear before the Labour Court on 09.09.2009. (K.KANNAN) JUDGE 05.08.2009 sanjeev