C.W.P. No.9221 of 2002 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.9221 of 2002 Date of Decision: 20.10.2009 Municipal Council, Pathankot .....Petitioner Versus Presiding Officer, Labour Court and another ...Respondents Present: Mr. B.S. Taunque, Advocate for the petitioner. None for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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 in challenge before this Court is a direction for reinstatement with continuity of service and back wages. The contention of the workman was that he had been working as a Pump Operator from February 1993 to October 1994 when he was abruptly terminated from service without any notice or compensation as contemplated under the provisions of the Industrial Disputes Act. At the trial, the workman examined himself and two witnesses and the management examined two witnesses. The Labour Court referred to the fact that MW-1, D.S. Matharoo offered to produce the muster rolls and log books during the relevant period on several occasions but he did not do C.W.P. No.9221 of 2002 -2- so. The Court drew an adverse inference and referring to a decision in Bal Kishan Vs. Presiding Officer, Labour Court, Panipat 1996(3) SCT 548, it placed the burden of proof on the management to show that the workman had not completed 240 days and the effect of non-production of the material records. In defence, the contention was that he never worked but when the workman had produced the log books during the relevant time, the production itself became a subject of complaint to the police that the workman had stolen the documents. However, when the document was produced, no suggestion had been put to the workman when he showed that there were entries showing that he had operated the pump that those entries were fabricated by the workman himself. 2. Assailing the order of the Labour Court, the learned counsel appearing for the Municipal Council argued that the burden of proof had been wrongly cast on the management to establish that the workman had not worked under them. I find no error in the matter of onus for, the workman had given evidence that he was working with the Municipal Council as a Pump Operator and he had also produced two witnesses. The management sought to explain the presence of the workman in their precinct by saying that an MLA had authorized him to operate the pumps but the Municipal Council itself had not given any appointment order. Consequently, it was more in the nature C.W.P. No.9221 of 2002 -3- of an admission that the workman was during the relevant time seen operating the pumps but it was sought to be explained by stating that it was unauthorized. The only document that could have given a lie to the contention of the workman was to produce the muster roll. Even before this Court, by the order dated 19.04.2004, the Division Bench before which the case was pending had directed the petitioner to produce the records referred to by the Labour Court in paragraph 13 of the judgment on the basis of which it observed that an adverse inference against the management would be drawn if the documents were not produced. Till date, no explanation is forthcoming for non- production of the material records. 3. On a finding that the workman had worked with the respondent, the Labour Court was justified in requiring the management to produce the records to show that the workman had not completed 240 days and by virtue of the non-production, it was again justified in drawing an adverse inference against the management. The direction for reinstatement and continuity of service with back wages was under the circumstances justified but in the matter of back wages it shall always be in the context of the evidence that is let in with reference to the gainful employment during the relevant period. If the workman had not worked all these years, to provide for full back wages will be inappropriate. If the workman had enforced the award and had obtained C.W.P. No.9221 of 2002 -4- reinstatement during the pendency of the writ petition and he had also drawn his wages no change in the award already passed would be warranted. However, if the workman did not have the benefit of the award and he had not obtained reinstatement, the workman shall be entitled to reinstatement with only 25% back wages instead of full back wages as awarded by the Labour Court. 4. The order of the Labour Court, under the circumstances, is confirmed except as regards the direction for back wages, if only the workman is shown to have not obtained the benefit of the award. If the workman had realized the amount already, there shall be no recovery. If he has not so far availed of the benefit of the award, the workman shall be entitled to 25% back wages as mentioned above. 5. The writ petition is dismissed on the above terms. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE October 20, 2009 Pankaj*