IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 12365 of 2008 Date of decision: 10.02.2009 Ashok Kumar son of Shri Ved Parkash .....PETITIONER VERSUS Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Ms. Abha Rathore, Advocate, for the petitioner. Mr. Deepender Ahlawat, Advocate, for the respondent. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 24.09.2007 passed by the Industrial Tribunal-cum-Labour Court-I, Faridabad (Annexure P-5), vide which the reference, which was made to the Labour Court on a dispute being raised by the workman (petitioner herein), has been answered against him on the ground that no evidence has been led by him to prove that he has completed 240 days in the preceding 12 months from the date of his termination. Counsel for the petitioner contends that the petitioner has, as a CWP No. 12365 of 2008 -2- matter of fact, produced the photo copies of some of the muster rolls to show that he has worked with the respondents during the period, which he claims, he has worked with the respondents. She further contends that a specific application calling for the records was made before the Labour Court, which was considered and allowed by the Labour Court, wherein the workman had sought for production of: “i) ECR (Sanction Roll) dated 01.06.95 to January, 97. ii) Wages Registered from June, 95 to January, 97. iii) Muster Roll June, 95 to January-97. iv) All concerned officials under whom the applicant has worked at Ajronda Mor Octroi Faridabad from 1.6.95 to January-97. The said records having not been produced by the respondents brings adverse inference against the respondent and the benefit thereof should have been given to the workman. She contends that Exs. M-2 and M-3, which are the muster rolls and Exs. M-4 and Ex. M-5 are the ECRs, which have been produced. Rest of the muster rolls and the ECRs, which have been called for by the workman, had not been produced and no cogent explanation has been submitted by the official, who had produced the records and had appeared as a witness for non- production of the records called for. She relying upon the judgment of the Hon'ble Supreme Court in the case of R.M.Yellati vs. Assistant Executive Engineer, (2006) 1 SCC 106, to contend that specific direction was given therein by the Hon'ble Supreme Court to maintain muster rolls in the form of registers in the Government Departments. Requirement of Section 25-D of the Industrial Disputes Act also enjoined upto the Management for the maintenance of the muster rolls of a workman. The same having not been maintained and if maintained, having not been produced, the adverse CWP No. 12365 of 2008 -3- inference is required to be inferred and, therefore, the benefit should have been granted to the workman leading him to be entitled to the relief for non- compliance of Section 25-F of the Industrial Disputes Act. She further contends that although a stand has been taken by the respondents in their written statement that the petitioner was engaged against a temporary sanction on muster roll basis from 04.12.1995 to 06.04.1996 only for a period of 124 days but no such assertion has been made in the statement made by the witness, who has come present before the Court. It has also not been asserted by the witness nor any documents have been produced to show that the sanction thereafter has not been received qua the workman for the post, for which the workman was engaged. On the other hand, counsel for the respondent contends that the appointment of the workman was for a fixed term and it was clearly stated in the written statement that his engagement was against a temporary sanction on muster roll basis and on expiry of such sanction, the service of the workman was disengaged as new sanction was not available and the workman had not completed 240 days with the respondents. He, therefore, contends that termination of the services of the workman because of non-renewal of the contract comes in the exception of Clause (bb) to Section 2 (oo) of the Industrial Disputes Act . He relies upon the judgment of this Court in the case of Executive Engineer, H.U.D.A., Gurgaon vs. Presiding Officer, Industrial Tribunal-cum-Labour Court, Gurgaon and another, 2008 (1) RSJ 397, to contend that as the contract falls in the exception of Clause (bb) to Section 2 (oo), as such, Section 25- F of the Industrial Disputes Act is not attracted. He further contends that the burden of proof as to whether the workman has worked continuously for 240 days in a calendar year lies on the workman and, therefore, he, having failed to discharge the said onus, is not entitled to the benefit of the CWP No. 12365 of 2008 -4- provisions of Section 25-F of the Industrial Disputes Act. For this contention, he relies on a judgment of the Hon'ble Supreme Court in the case of G.M., B.S.N.L. and others vs. Mahesh Chand, 2008 (2) RSJ 316. I have, with the assistance of the counsel for the parties, gone through the records of the case and the impugned award and have considered the submissions made by the counsel for the parties. A perusal of the award as well as the statement by the Management witness would show that although a pleading to the effect that the appointment of the workman was against the temporary sanction on muster roll basis has been made but no evidence has been produced by the respondent, which would substantiate such statement made by the respondents in their reply to the demand notice. A specific application for summoning the records, relevant for the period, before the Labour Court was made but the same have not been produced by the respondent. Further, no explanation whatsoever has come forth in the statement of the witness, which would show that non-production of the records was not possible for the respondent or there was a justifiable reason for not doing so. That being so, the workman having discharged his onus in making all efforts for production of the relevant records and despite of making all efforts, the respondent having failed to produce the records, an adverse inference is required to be drawn against the respondent and in favour of the workman. In this view of the matter, the judgments, as relied upon by the counsel for the respondent, would not be applicable to the present case as the assertions, on which the reliance has been made by the respondent during the arguments, have not been substantiated on the basis of the evidence. In view of the above, the award passed by the Labour Court cannot be sustained and is, hereby, set aside. The termination of the CWP No. 12365 of 2008 -5- services of the workman is held to be in violation of the Section 25-F of the Industrial Disputes Act. However, in the light of the fact that the post, on which the workman was engaged, is a public post, which must be filled in accordance with the statutory rules and the provisions providing for filling up of such posts having not been complied with, no reinstatement can be granted to the workman despite of violation of provisions of the Industrial Disputes Act but would be entitled to compensation in lieu of reinstatement, as has been held by this Court in the case of State of Haryana through Executive Engineer vs. Ishwar Singh and others, 2008 (3) SCT 789. The workman is thus held entitled to compensation in lieu of reinstatement. As the workman has worked for only 1 ½ years with the respondent, therefore, compensation of Rs. 10,000/- is granted to the workman to settle the equities between the parties. ( AUGUSTINE GEORGE MASIH ) JUDGE February 10, 2009 pj