IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18671 of 2008. Date of Decision : May 06, 2009. The Engineer-in-Chief, Public Health Department, Haryana, Chandigarh, and another. ....... Petitioners. Versus. Shri Anil Kumar s/o Shri Umrao Singh, resident of Village and Post Office Haluwas, Tehsil and District Bhiwani, and another. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Additional Advocate General, Haryana, for the petitioners. Mr. Sandeep Thakan, Advocate, for Mr. Jagjeet Beniwal, Advocate, for the respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 05.03.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the reference has been answered in favour of the workman, holding him entitled to reinstatement on his previous post with continuity of service and 50% back wages from the date demand notice i.e. 23.08.1999. Counsel for the petitioners contends that the Industrial Tribunal- cum-Labour Court, Rohtak, has drawn an adverse inference against the Management for non production of the records by the official of the Department. He contends that the documents which have been produced by the Management-Witness unless held not to be trustworthy, could not have been brushed aside by the Labour Court before drawing an adverse inference C.W.P. No. 18671 of 2008. for non production of the records. For this submission, he relies upon the judgment of Hon'ble the Supreme Court in the case of Director Vocational Education and Training and another Versus Nashim Shaikh Chand, 2007 (1) Supreme Court Cases (Labour and Service), 113. He on this basis contends that the findings as recorded by the Labour Court deserve to be set aside. He further contends that the document Ex.M.1 which is the working details of the workman, having not been dis-believed which clearly indicate that the workman has not completed more than 240 days with the petitioner- management, the workman was not entitled to any relief by the Labour Court. On the other hand, counsel for the respondent-workman contends that the workman had approached the Labour Court for production of records by the Management and accordingly, on directions of the Court, W.W.3- Shri Ranbir Singh, S.D.C. o/o X.E.N., Public Division No. 1, Bhiwani, had appeared and stated that the summoned records was not available in the office. He on this basis contends that the relevant records which was not produced by the official witness for the reason it being not available for the relevant period. Not only this, the official who had appeared with the records had stated that he would not be in a position to produce the said records in future also. However, the same person while appearing as Management-Witness M.W.1 has produced the working details of workman as Ex.M.1, reliance whereof has been made by counsel for the petitioners. He contends that when the records with the office was not available, how could working details be produced before the Labour Court. The working details being not based on any records, non availability of which has been admitted by the witness, cannot be said to be genuine or -2- C.W.P. No. 18671 of 2008. based on records and, therefore, not creditworthy. He on this basis submits that the Labour Court has rightly drawn an adverse inference against the Management for non production of the records and granted relief to the workman. I have heard counsel for the parties and have gone through the records of the case. Shri Ranbir Singh, S.D.C. o/o X.E.N. Public Health Division No. 1, Bhiwani, had appeared as W.W.3 on the summoning of the records by the Labour Court on an application made by the workman. He while appearing before the Labour Court has categorically stated that the summoned records were not available in the office. He could not produce the log book and attendance register for the relevant period as the same was not available in office. In his cross-examination, he has further stated that the summoned records cannot be produced in future also. However, while appearing as M.W.1, the same official has produced the working details of the workman Ex.M.1 according to which the workman had not completed more than 240 days in any calendar year. The question, therefore, is whether Ex.M.1 can be said to be a genuine tabulation prepared by the official in the absence of the records on the basis of which only the said details could be prepared? He has earlier while appearing before the Court stated that the log book and the attendance register could not be produced as the same were not available in the office. When the said documents were not available in the office, how could the working details Ex.M.1 be prepared. The only conclusion which can be drawn is that the same was prepared to cover up the fault of the Department and deprive the workman of his rights which were conferred on him under the law. The document, therefore, is not a -3- C.W.P. No. 18671 of 2008. genuine document and cannot be said to be creditworthy which could give some evidence to the Labour Court to rely thereon. This document, therefore, has no effect with regard to the claim of the workman. The onus having been discharged by the workman while approaching the Labour Court to get the records which is only available with the Management to prove his claim with regard to his period of work with the Management and non production thereof due to non availability of the said records at that moment as well as in future, the only inference which can be drawn is that the Management was unable to produce the records. In the absence of the records, the statement of the workman has to be taken as correct unless proved otherwise. That being so, an adverse inference has rightly been drawn by the Labour Court against the Management. The document relied upon by the Management to show that the workman has not completed more than 240 days is not creditworthy as the same is not based on the records. Faced with this situation, counsel for the petitioner contends that in any case the award passed by the Labour Court directing reinstatement of the workman on his previous post with continuity of service and 50% back wages from the date of demand notice i.e. 23.08.1999 cannot be sustained (i) on the ground that the workman was only a casual worker and, therefore, was not holding a post and (ii) that the appointment of the workman was not in consonance with the statutory rules governing the service and, therefore, cannot be said to be appointed in accordance with law. He further submits that the scheme as envisaged under Articles 14 and 16 of the Constitution of India, having not been complied with, the appointment of the workman cannot be said to be legal and valid which -4- C.W.P. No. 18671 of 2008. would confer him right of reinstatement. He relies upon the judgments of 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, to support his contention. In the light of the judgments passed by Hon'ble the Supreme Court, the award passed by the Labour Court dated 05.03.2008 (Annexure-P-5) cannot be sustained as the appointment of the workman was not in consonance with the statutory rules, governing the service and further the workman is only appointed as a casual worker and, thus, not holding a post. 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 of this Court in the case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788, has held that the workman would be entitled to compensation in case the termination of the workman was not in consonance with the Industrial Disputes Act. In the present case, a finding has been recorded by the Labour Court which has been upheld by this Court above that provisions as contained in Section 25-F of the Industrial Disputes Act have not been complied with. That being so, the workman would be entitled to compensation. As per the records, the workman has worked with the Management from 01.07.1996 to 10.08.1999 and, thus, would be entitled to compensation of Rs. 30,000/-. -5- C.W.P. No. 18671 of 2008. In view of the above, the present writ petition is allowed. The impugned award dated 05.03.2008 (Annexure-P5), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, is hereby set aside. However, the workman is held entitled to compensation of Rs. 30,000/-. A direction is issued to the petitioners to release the amount of compensation as assessed above i.e. Rs. 30,000/- within a period of two months from the date of receipt of certified copy of this order. The writ petition stands disposed of in above terms. (AUGUSTINE GEORGE MASIH) JUDGE May 06, 2009. sjks. Whether referred to the Reporter. - Yes / No. -6-