IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10097 of 2001 Bihar Rajya Paryatan Vikash Nigam through its Managing Director, Atul Prasad, Beerchand Patel Path, P.S. Kotwali, District and town Patna Versus 1. The State of Bihar 2. The Presiding Officer, Industrial Tribunal (Bihar) Combined Labour Building, Bailey Road, Patna-1 3. Bihar Rjaya Paryatan Vikash Nigam Karamchari Sangh, through its President Chandra Prakash Singh, son of Late Tribhuwan Prasad Singh, Congress Nagar, Kadamkuan, P.S. Kadamkuan, Patna-3 4. Rajendra Prasad Singh, S/o Late Sheodhari Singh, R/v Chhtani, P.S. Karghar (Out Post Sidhi), District Rohtas 5. Pramod Kumar Singh S/o Late Din Dayal Singh R/v Pothahi, Police Station punpun, Distt. Patna 6. Mahendra Prasad S/o Late Ram Awatar Prasad, R/v Kaladiar, P.S. Bakhtiarpur, Distt. Patna ----------- For the Petitioner :Mr. Alok Kumar Sinha, Advocate For the Respondent Nos. 4 to 6 :M/s Ram Suresh Roy, Sr. Advocate, Ram Chandra Singh, Mahendra Prasad & Jitendra Kr. Singh, Advocates 06/ 13.01.2010 Heard learned counsel for the Bihar Rajya Tourism Development Corporation (hereinafter referred to as the Corporation) and the counsel for the three workmen, Respondent nos. 4 to 6, who were engaged in the establishment of the Corporation as daily wager and their engagement was terminated without complying with the provisions of Section 25F of the Industrial Disputes Act (hereinafter referred to as 2 the Act). The Bihar State Tourism Development Corporation Workers’ Union (hereinafter referred to as the Union) raised dispute on behalf of the workmen and in appreciation of the demand, the State Government made a reference under notification dated 16.3.1994 requesting the Industrial Tribunal, Patna (hereinafter referred to as the Tribunal) to adjudicate as to whether termination of the engagement of the 45 workmen named in the notification by the Corporation is proper, if not, whether they should be reinstated or any other relief be allowed to them. 2. After receipt of the reference, the parties filed their written statement. Along with the written statement of the Union, list containing the name of 45 workmen, on whose behalf reference was made, was appended as Annexure-A giving the date of engagement of the 45 workmen. The management in its written statement disputed the fact that the termination of the engagement of 45 workmen was improper on the ground of the failure to comply with the provisions contained in Section 25F of the Act, as according to the 3 Management, the workmen had not completed 240 days of engagement with the Corporation preceding their removal. The Tribunal formulated the issues as would appear from paragraph 8 of the award and in support of the issues the workmen examined five witnesses, who supported their claim that they were engaged as daily rated workers and prior to their termination, they had served the Corporation for more than 240 days. The Management examined one witness, namely, Sri Navin Kumar, Manager (Administration), who disputed the oral evidence led on behalf of the workers that they were in engagement for more than 240 days prior to their termination. In support of their case, the workmen also produced few documents to establish that after engagement in the establishment of the Corporation, they were transferred from one establishment to another establishment of the Corporation and with reference to those documents the workmen by adducing oral evidence endeavoured to establish that they were under the engagement of the Corporation for more than 240 days just prior to their 4 removal and before removing them the Corporation ought to have complied with the mandate of Section 25F of the Act. On account of failure of the Corporation to comply the said provisions, the removal of the workmen is bad. The Tribunal having considered the case of the parties, directed the Management to produce the original letters of appointment/ termination of 45 workmen as also the attendance register and payment-sheet so as to verify the contention of the parties. The Management declined to produce the aforesaid documents, as according to it, production of those documents was not relevant to decide the dispute raised in the reference as it was the solemn duty of the Union and the workmen to establish their case. The Tribunal having perused the oral evidence led on behalf of the workmen as also the documents produced in support thereof by the workmen and for failure of the Management to produce the documents called for by the Tribunal, recorded a finding that the workmen were terminated some time in June/July, 1992 in compliance of the instructions of the State Government contained 5 in letter dated 3.5.1992 and 2.7.1992, Exts. M/2 and M/3. 3. From perusal of the entire award, it does not appear that the Tribunal recorded any finding about the date of engagement of the workmen as also about the factum of their engagement with the Corporation for more than 240 days just preceding their disengagement. It further appears from perusal of the award that while recording its finding, the Tribunal drew adverse inference against the Management for its failure to produce the documents, directed to be produced, having drawn such adverse inference considered the evidence led on behalf of the workmen and held that the workmen had rendered engagement for more than 240 days prior to their disengagement. 4. Having heard counsel for the parties, I am satisfied that the aforesaid approach of the Tribunal is not in accordance with law, the Union on behalf of the workmen had raised the dispute that disengagement of the workmen without applying the provisions of Section 25F of the Act was improper since the 6 workmen had rendered more than 240 days of engagement prior to their disengagement. The factum of 240 days of engagement by workmen prior to their disengagement was required to be proved by the workmen and the Union and no such adverse inference could have been drawn by the Tribunal for the failure of the Corporation to produce the documents called for by the Tribunal. 5. In view of my observations above, I set aside the impugned award dated 22.2.2001, Ananexure- 1 and remit back the matter to the Tribunal with direction to the workmen to produce evidence in support of their case that they had rendered engagement with the establishment(s) of the Corporation for more than 240 days prior to their disengagement and if the Tribunal is satisfied that the workmen had rendered engagement with the Corporation in any or several of its establishments as the case of the workmen is that they were transferred from one establishment to another for more than 240 days prior to their disengagement, then the Tribunal 7 shall set aside the termination of engagement of Respondent nos. 4 to 6 and direct the Corporation to comply Section 25F of the Act by reinstating them. While directing payment of compensation, the Tribunal would satisfy itself that during the period of termination Respondent nos. 4 to 6 were not gainfully employed In this connection, it is made clear that it shall also be open for the three workmen, Respondent no. 4,5 and 6 to adduce evidence before the Tribunal to establish that after termination of their engagement, they had never been gainfully employed elsewhere. 6. As the matter is very old, the Tribunal is directed to decide the reference as early as possible, in any case within six months from the date of receipt/ production of a copy of this order. 7. Payment made to the three workmen in compliance of the interim orders of this Court dated 13.8.2007 read with order dated 9.12.2009, passed in M.J.C. No. 2552 of 2008 shall be subject to the result of the final adjudication by the Tribunal in compliance of this order. 8 8. This writ application is, accordingly, disposed of. Arjun/ ( V.N. Sinha, J.)