IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4689 of 2000 Date of decision: 20.08.2009 Subhash Chander …Petitioner versus The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and another. ...Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr. R.K.Malik, Senior Advocate, with Mr. Ashish Chaudhary, Advocate, for the petitioner. Mr. D.S.Nalwa, Additional Advocate General, Haryana. ---- 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. The award of the Labour Court rejecting the reference sought on behalf of the workman complaining the act of the management in removing him from service is the subject of challenge before this Court in the writ petition. 2. The original contentions between the parties zeroed on whether the workman had voluntarily abandoned the services or whether there had been a termination of services of the workman. This finding was required to be rendered in the context of whether the workman had Civil Writ Petition No.4689 of 2000 - 2 - 240 days of continuous service to enable him to complain of violation of Section 25-F of the Industrial Disputes Act. 3. The Labour Court found that the workman did not have 240 days of continuous service. It accepted the contention of the management that the workman had absented himself from service on 19.02.1995 and did not return to duty and therefore, there was no question of violation of Section 25-F of the Industrial Disputes Act. 4. The counsel for the petitioner-workman had two important contentions to make: one, the management was urging for a case of abandonment from 19.02.1995 only because he fell short of 240 days by six days. He had actually worked upto 25.02.1995 and if those days are also counted, he would have completed 240 days. The attendance register which is maintained by the management and which contains no signature of the workman, is deliberately manipulated to make it appear as though the workman did not attend the establishment after 19.02.1995. According to him, there was valuable evidence through slips issued by his superior officers for the purchase of some equipments from stores. The original had been sought for but they were not produced by the management on the ground that they had been lost in floods. The selective loss of originals in floods, according to the learned counsel for the petitioner, is an artificial contention that ought to have been rejected by the Court below. 5. The counsel for the respondent would try to bring support to his plea that the workman abandoned his services on 19.02.1995 itself only by the fact that they had retained the name of the workman in their Civil Writ Petition No.4689 of 2000 - 3 - attendance register for the whole of the next month also and on each one of those days, he had been marked as absent. If they had terminated the services on 25.02.1995 as contended by the workman, there was no necessity for retaining the name of the workman in the register. 6. Between the two extreme contentions raised by the respective contesting parties, the truth resides somewhere in between. If the contention of the workman is that the management was deliberately trying to suppress the availability of original records and that they were also deliberately marking him absent from 19.02.1995 onwards, and if such a crafty manoeuvre by the management was possible, then it shall be of no avail to the management to contend that they actually had retained the name of the workman in the register and that would prove that they had not terminated the workman from service. The fact of marking the workman 'absent' throughout the next month could also be an instance of deliberate manipulation to suit the defence. If, on the other hand, the workman had abandoned the services on 19.02.1995 as contended by the management to be true even the evidence of the workman that he had worked in the factory upto 25.02.1995 and there were slips available to show that he had worked between 25.02.1995 could not be true and the photocopy produced in Court itself may have been fabricated to create evidence. What was produced before Court was a photocopy of not any daily entries made between 19.02.1995 to 25.02.1995 but in a single sheet of paper making reference to some articles as having been taken from the store on various dates. While I reject the contention of the management that the original records were Civil Writ Petition No.4689 of 2000 - 4 - lost in floods as being unnatural, I still cannot place reliance on the photocopy produced by the workman without any further evidence as who wrote the document, when was the copy taken, how the workman obtained the original to take a copy, etc. Same way, the attendance register that does not contain the signature of the workman cannot be taken as decisive proof whether the workman had been retained truthfully in the records of the management. The factor that creates suspicion about the entries is only on account of the fact that if there was a deliberate absence by the workman, and the management was still retaining him in the rolls, it would have required a further action by the management by express proceedings to strike him off their rolls. That has not been done and no explanation is also forthcoming from the management as to why no proceeding had been taken to remove the petitioner from their rolls for unauthorized long absence. 7. The case is deficient in the particulars relating to how the copy of the slips had been produced and whether there had been a deliberate act on the part of the management to mark him absent from 19.02.1995 onwards to deprive him of securing the evidence that he had worked for a period of 240 days. The burden shall be wholly on the workman to establish that he did work during the time when it is alleged that he had absented himself namely from 19.02.1995 to 25.02.1995. The award of the Labour Court rejecting the reference is set aside and the parties shall be at liberty to adduce evidence on the factors relevant for an adjudication in the light of the observations. It is requested that the Labour Court adjudicates the issues as expeditiously as possible Civil Writ Petition No.4689 of 2000 - 5 - preferably within a period of four months. The award of the Labour Court is set aside and the writ petition is ordered as above. The parties shall appear before the Labour Court, on 15.09.2009. (K.KANNAN) JUDGE 20.08.2009 sanjeev