IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 102 of 2008 NAGAR PARISHAD,BHILWARA V/S MAN SINGH & ANR Mr. KAILASH JOSHI, for the appellant / petitioner Mr. RAVI BHANSALI, for the respondent Date of Order : 11.8.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- Heard learned counsel for the parties. With the consent of the parties, the matter has been finally heard at this stage itself. This appeal has been filed by the employer, against the judgment of the learned Single Judge dated 15.1.2007, dismissing the writ petition, whereby the employer had sought to challenge the award of the labour court dated 8.1.2002, directing reinstatement of the workman, with continuity of service, but without any back- wages. The necessary facts are, that an industrial dispute was raised and reference was made vide order dated 2.1.1995 to the Labour Court, to decide the question, as to whether the removal of the workman Mansingh since 9.8.1991 is valid and proper. After receipt of the reference the workman filed a claim, claiming to have worked from January 1989 to August 1991 as Baildar, and having been terminated without complying with the provisions of Section 25-F. The claim was contested on the ground, that the workman was never regularly appointed, and that, he had himself voluntarily abandoned the job, by having stopped to come. It was also pleaded, that the workman is also working elsewhere, and is not unemployed. The learned Labour Court noticed the statement of the workman, and observed, that the workman has not clarified, as to in which month he worked for how many number of days, and that, he does not remember, as to for how many days he had worked before retrenchment, or as to how much amount did he receive. However, the claimant has produced the chart alongwith claim petition giving details of the muster roll number, month and date, to show that within one calendar year, he had worked for 264 days, and the record was prayed for being requisitioned, but the employer has not produced the record, despite order. With recapitulating this, the learned Labour Court found, that the employer has not produced the record in accordance with the application dated 7.1.2000, nor any reason has been given for non-production of the record. It has also been considered, that thus, an adverse inference arises. Thus, it was found, that the workman had worked for more than 240 days within one calendar year, and the workman having been retrenched without compliance of provisions of Section 25- F, reinstatement was ordered, and considering the statement of the workman himself to be otherwise engaged, back-wages have not been awarded. Learned Single Judge, by relying upon the adverse inference drawn, and by relying upon the chart produced by 2 the workman, dismissed the writ petition. We have heard learned counsel for the parties. In the first place, in the impugned award, at one place, it is observed, that despite the order of the Court the record was not produced, while at the time of recording findings, the learned Labour Court has only observed, that record has not been produced in accordance with the application dated 7.1.2000, without considering the fact, as to whether any order was passed, or not, for requisitioning the record, and there was failure on the part of the employer in producing the record, and at later stage, again it has been observed, that the record has not been produced despite order of the Court, and thus, adverse inference has been drawn. We need not go into the question at this stage, as to whether the order was passed, or not for requisitioning the record, the fact remains that the record was not produced. However, there are judgments and judgments of Hon'ble the Supreme Court, taking different views on the aspect, as to whether adverse inference can be drawn on this count or not, and as to whether the workman is required to prove the fact of his having worked for more than 240 days in a calendar year by his own evidence, and by producing reliable necessary evidence. This is one aspect of the matter. The other aspect of the matter is, that all said and done, even according to workman, he was appointed in January 1989, and worked upto August 1991 only, and the 3 reference was made in the year 1995 where the matter remained pending for about 7 years, and the award has been made for reinstatement without back-wages. In this background, learned counsel for the appellant has referred to the Division Bench Judgment of this Court, in D.B. S.A.W. 768/2004, decided on 20.10.2005, being “The Municipal Council, Bhilwara Vs. Dal Chand Mali & Anr.”, wherein, having regard to the non-availability of the vacancies, and financial conditions of the Municipal Council, the Division Bench, allowing the Special Appeal of the employer, set aside the order of reinstatement, and awarded an all told compensation of Rs.40,000/-. That appeal was by the same appellant, as being the present one, being Municipal Council, Bhilwara. In that case also, the employee was working as a daily wager @ Rs.22/- per day, and thus, appears to be an employee of the same nature, as the workman in the present case is. In this background, it may also be noticed, that in view of the recent trend of judgments of Hon'ble the Supreme Court, taking the view, that in every case where the retrenchment is found to be violative of Section 25-F, reinstatement is not to be ordered, as a Rule of thumb. Considering all these totality of circumstances, including the considerations, taken by the Division Bench in Dal Chand's case, in our view, the ends of justice would be met, if an all told compensation of Rs.60,000/- is paid to the workman, in full and final settlement of all claims of the workman, involved in the present litigation. 4 Accordingly, the appeal is disposed of in the manner, that the impugned award and judgment of the learned Single Judge is modified. While finding the retrenchment of the workman to be bad, it is directed, that the appellant shall pay, an all told compensation of Rs.60,000/-, within a period of two months from today, and on payment of said amount, all claims of the workman, involved in the present litigation, would stand settled. If the amount is not paid within two months, the amount shall carry interest @ 9% p.a. thereafter. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /tarun/ 5