L.P.A.No.661 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A.No.661 of 2010 Date of Decision:- 14.02.2011 The Divisional Forest Officer, Forest Division, Bhiwani and another ....Appellant(s) vs. Arun Kumar s/o Sh.Shyam Lal and another ....Respondent(s) *** CORAM:HON'BLE MR.JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Anil Rathee, Additional Advocate General, Haryana. *** Augustine George Masih, J. This appeal has been preferred against the order passed by the learned Single Judge dated 15.10.2009 vide which the writ petition filed by the appellant challenging the award dated 15.1.2008 passed by the Industrial Tribunal-cum-Labour Court, Rohtak ordering reinstatement of Arun Kumar-workman-respondent No.1 with continuity of service and 50% back wages from the date of demand notice dated 21.5.2003. Counsel for the appellant submits that as per the case of the workman he was employed on daily wage basis as Beldar-cum-Mali in the Forest Department on 15.7.1991 and continued as such till his termination on 1.1.2000 without complying with the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). On a dispute having been raised, the matter was referred to the Industrial Tribunal for L.P.A.No.661 of 2010 -2- adjudication where the appellant-Management took up the stand that the respondent-workman had worked from July 1994 to July 1996 when his services were dispensed with after the completion of work. He has not worked continuously for 240 days and, therefore, there was no violation of Section 25-F of the Act. Further, he contends that adverse inference has been drawn by the Labour Court for non-production of the records summoned by it thereby granting the benefit to the workman holding him entitled to the retrenchment compensation before his termination, leading to violation of Section 25-F of the Act. This, he contends, is not sustainable. His further submission is that the appointment of the respondent-workman was not in consonance with the statutory rules and was in violation of Articles 14 and 16 of the Constitution of India dis-entitling him to the claim of reinstatement which has been granted to the workman by the Labour court and the award upheld by the learned Single Judge. He, on this basis, prays for setting aside of the award passed by the Labour Court as also the judgment passed by the learned Single Judge, while allowing the appeal. We have heard counsel for the appellant and gone through the records of the case. By now, it is settled law that in the light of claim and assertion of the workman the onus primarily is on him to prove that he had completed more than 240 days in the 12 preceding months from the date of his termination for claiming the benefit of Section 25-F of the Act in case the same has been violated. The workman claimed that he was appointed in the Forest Department on 15.7.1991 and he was illegally terminated with effect from 1.1.2000. It is not in dispute that no appointment letter is issued to the workers engaged on daily wage basis nor are they issued any termination orders. The reliance, thus, of the workman for production of the L.P.A.No.661 of 2010 -3- records to sustain his claim is on the Management which is required to maintain the same. To discharge this onus, the workman moved an application before the Labour Court for production of the relevant records for the period in question, which the Management failed to produce before the Labour court, leaving the Court with no option but to draw an adverse inference against it. The fact that the Management failed to produce the records before the Labour Court as summoned, is not disputed by the counsel for the appellant. If that be so, the inference so drawn by the Court against the Management is fully justified and does not call for any interference by the Court. The workman was, thus, entitled to retrenchment compensation which admittedly has not been paid; rather the stand of the Management is that he was employed in July 1994 and continued to work till October, 1996 and, thereafter his services were dispensed with after completion of work. No records have been produced before the Labour Court justifying the stand or showing that the workman was appointed for a particular work or for a particular period under a contract and on its completion, his services were dispensed with. In the absence of the evidence before the Labour Court, the plea as raised by the appellant before the Labour Court has rightly been rejected. The award passed by the Labour Court, therefore, is justified. An additional plea was taken in the writ petition by the appellant-State before the learned Single Judge, which was not urged before the Labour Court, contending that as the appointment of the workman was not in consonance with the statutory rules and was in violation of Articles 14 and 16 of the Constitution of India, he was not entitled to reinstatement in service. The contention of the counsel for the L.P.A.No.661 of 2010 -4- appellant would have been accepted in case there were some statutory rules governing the eligibility or the procedure for employment of Beldar-cum- Malis in the Forest Department on daily wage basis. During the course of arguments, counsel for the appellant has conceded that there are no statutory rules in this regard nor is an advertisement issued for employing workers on daily wage basis. He has also admitted that the appointment of the workman who has been ordered to be reinstated in service was not against a regular post. In view of this, the contention as raised by the counsel for the appellant cannot be accepted. Further, reinstatement of the workman as Beldar-cum-Mali had been ordered on daily wage basis which work is admittedly available with the Management and as a matter of fact, the workman stands reinstated in service during the pendency of the writ petition and he continues to be in employment with the Management. It, thus, cannot be said that the work is not available with the Management for taking back the workman in service. The Labour Court has, apart from directing reinstatement with continuity in employment, awarded 50% back wages which, in our considered view, is just and appropriate in the given facts and circumstances. Finding no merit in the appeal, the same stands dismissed. ( RANJAN GOGOI ) ( AUGUSTINE GEORGE MASIH ) CHIEF JUSTICE JUDGE February 14, 2011 poonam