CIVIL WRIT PETITION NO.22083 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 10,2010 Chief Regional Manager, Oriental Insurance Co.Ltd., Chandigarh .....Petitioner VERSUS The Presiding Officer, Central Govt. Industrial Tribunal, Chandigharh and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. T. S. Gujral, Advocate, for the petitioner. **** RANJIT SINGH, J. Presiding Officer, Central Government Industrial Tribunal, Chandigarh has found serious infirmity in the manner in which Oriental Insurance Co.Ltd. has adopted unfair approach to contest the claim of respondent-workman. Karam Chand had approached the Government for reference of his dispute regarding termination of his services by the petitioner-Oriental Insurance Company in violation of Sections 25-F and 25-G of the Industrial Disputes Act. As per the respondent- CIVIL WRIT PETITION NO.22083 OF 2010 :{ 2 }: workman, he was engaged by the petitioner-Management as Helper on daily wages from 10.12.2001. Workman claims that he had worked continuously till his termination by the Branch Manager on 16.10.2004. Workman would contend that this termination was without notice or without payment of wages in lieu of notice and, thus, the same was illegal being in violation of the provisions of the Industrial Disputes Act. In his claim itself, the workman had pleaded that he was paid wages in three different names. Sometime, the vouchers were prepared in his name and sometime in the name of some fictitious persons, like Kewal, Mega Ram, Karamjit Singh, Kala etc. The workman would claim that these names were fictitious and actual payment had been received by him. His plea accordingly is that this practice was unlawful labour practice committed by the responsible management and that after terminating his services, a new hand has been engaged without giving any opportunity to the workman for re- engagement. The petitioner-Management appeared and denied the claim made by the workman. As per the stand of the petitioner, respondent was not a workman as per the definition given in the Industrial Disputes Act. The petitioner would also plead that the workman had not approached the court with clean hands and would accuse him of committing fraud with the Management and the court. Petitioner-Management has denied the allegation that wages were paid on the names of fictitious persons, which were actually paid to the workman. It is stated that Management had conducted in-house enquiry, wherein it was concluded that the respondent-workman had CIVIL WRIT PETITION NO.22083 OF 2010 :{ 3 }: completed 232 days in all from the year 2001 to 2005 and had not completed 240 days in any of the calendar years. The contention further is that the workman was engaged without complying with the rules and regulations of the petitioner-Management and accordingly would term his appointment to be illegal. Both the parties led their respective evidence. The workman had filed as many as 311 documents in five sets and these were of the following nature:- “1. Statement of working days prepared by the workman on plain sheet. 2. A certificate regarding his educational qualifications. 3. The photo copies of vouchers containing the name of the workman and the name of some other persons. 4. The photo copies of the entries made in the dairy of Shri Ramesh Kumar Goyal. 5. Photo copies of the receipts issued by Deepnet Communication. 6. Photo copies of disbursement/claim disbursement, general vouchers. 7. Cash Memos and Bills of different companies.” Petitioner-Management was required to file original of the above-noted documents, for which it was given opportunity, but it failed to comply with the directions on the one pretext or the other. Mainly it was pleaded that these were not traceable in the office. The Labour Court accordingly proceeded ahead to adjudicate the reference. As per the petitioner, the workman had not completed 240 days in any of the calendar years. CIVIL WRIT PETITION NO.22083 OF 2010 :{ 4 }: The Labour Court rightly went into the question to see whether the Management had adopted the procedure of paying daily wages to the workman through vouchers, which were prepared in the name of fictitious persons or not. The stand of the workman was noticed, wherein he has stated that whenever he was paid wages or vouchers prepared in the name of other persons, he was signing that vouchers at the right hand side corner on the back of the vouchers. The signatures of the respondent-workman on every voucher prepared in the name of different persons mentioned and produced before the Labour Court did exist. The Labour Court justifiably asked the management if they could produce the persons on whose names the vouchers were issued indicating payment. The answer given to the same was as under:- “I cannot say whether the management can produce any person other than Karam Chand in whose name the vouchers were prepared and payment was made to Karam Chand? I cannot say anything about the documents Exhibits 16, 17, 18 and 19 and whether those vouchers have been prepared in the name of other persons and the payment was made good to the workman Karam Chand.” Not only that, the witness of the Management further stated: “I cannot say whether these documents were signed by the workman in the name of different persons”. The Tribunal, which had the opportunity of seeing the first hand account and the demeanour of the witness did well to record CIVIL WRIT PETITION NO.22083 OF 2010 :{ 5 }: the same and the observations of the Tribunal in this regard are as under:- “After asking the question before reply the same face of the witness is trembling.” The witness then went on to state “I cannot say, as I was not present in the branch when vouchers were prepared in the name of different persons, those were signed by the workman in the name of different persons and payment of wages were made good to the workman on such vouchers”. The witness then candidly admitted before the Tribunal that he cannot produce any person in evidence in whose name the vouchers were made. This admission as recorded by the Tribunal is as under:- “I cannot produce any of the persons in evidence before this Tribunal in whose name the vouchers were made”. From the above state of evidence, the Tribunal was justified in believing the respondent-workman that vouchers were prepared in the name of other fictitious persons and the payment was made good to the workman. It is also noticed that this assertion of the workman concerning preparing of the vouchers in the names of fictitious persons and making of the payment of wages to him was not specifically denied by the petitioner-Management, but had pleaded ignorance in this regard. The demeanour of the witness, as was noticed, perhaps convinced the Tribunal and rightly so that Management was amiss and placed reliance on the version given by the respondent-workman. The conclusions reached are fully justified and there is no reason for this court to interfere in the same, specially so when this court is exercising limited jurisdiction and is not to CIVIL WRIT PETITION NO.22083 OF 2010 :{ 6 }: appreciate or re-appreciate the evidence as that may be beyond the purview of the writ court. The Tribunal thereafter had considered the other aspect of plea raised by the Management regarding holding of in-house enquiry. Reference is made to the evidence given by the person holding in-house enquiry, namely, Varinder Kumar Miglani, Regional Manager. This witness during his cross-examination disclosed that enquiry had gone into the issue of preparation of vouchers in the name of other persons and the payments having been made to the workman. Still, the witness feigned ignorance about those persons in whose names the vouchers other than the one prepared in the name of respondent-workman were prepared and the payment was made to the workman. His exact testimony in this regard is as under:- “It is correct that I have no knowledge or enquired into the matter in whose name the vouchers other than the vouchers prepared in the name of Karam Chand were prepared and to whom the payment was made good.” The in-house enquiry, which had examined the issue of preparing vouchers in the name of other persons, either had not seriously enquired into the issue or the petitioner-Management and its witnesses were deliberately withholding this information. These pieces of evidence, thus, could not be relied upon. The respondent-workman had placed on record photocopies of some entries in diary. This may have been a personal diary of the workman, but the statement regarding the work done by the workman is entered for those occasions when the vouchers were prepared in the names of other persons. This was another added CIVIL WRIT PETITION NO.22083 OF 2010 :{ 7 }: reason for the Tribunal to assure itself that the pleas raised by the respondent-workman could be believed. The Labour Court justifiably held that the Management was in the habit of preparing vouchers in the fictitious names and the payment for the said work was done by the respondent-workman. This was rightly termed as unfair and unlawful labour practice, for which the Management shall remain responsible for serious consequences that may follow. The plea of the management that workman was guilty of fraud was rightly discarded as rather it was the Management which was found to be indulging in resorting to fraudulent means, which were highly undesirable as well. The Tribunal noticed the difference in the status of parties and the dominant position enjoyed by the petitioner-Management. The issue before the Tribunal was not to see how the workman had obtained these documents, but what was the true position and state of affairs in this regard. The Management could have easily produced the original documents, which were in its custody, if there was any unwarranted act on the part of the respondent-workman. As already noticed, the petitioner-Management was given opportunity to contest the documents produced by the workman, but it failed to avail the same and for this adverse inference can conveniently be drawn against the petitioner- Management. Section 114 of the Indian Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in relation of the facts of the particular case. As per the illustration (g) given in this Section, the court may presume that the evidence which CIVIL WRIT PETITION NO.22083 OF 2010 :{ 8 }: could be and is not produced would, if produced, be unfavourable to the person who withholds it. It would be, therefore, safe to presume that original of the documents produced by the workman, being in the possession of the petitioner-workman, were withheld and these, if produced, would have been unfavourable to the Management. As per Gopal Krishanji Ketkar Vs. Mahomed Haji Latif & Ors.,, AIR 1968 SC 1413, the court ought to draw an adverse inference against a party, which is in possession of best evidence and withholding the same notwithstanding that the onus of proof did not lie on him. The adverse inference in this regard, therefore, can be drawn against the petitioner-Management and it cannot, therefore, be heard to complain against the respondent-workman that he had committed any illegality. The submission made on behalf of the Management that even if the vouchers produced are considered, then also it would not show that the workman had completed 240 days in a year preceding the date of his termination cannot be accepted for simple reason that the manner in which the petitioner-Management has resorted to manipulation would be enough to cast doubt on the veracity of any record. The statement made to show that the workman had completed 240 days would be worthy of relying and was rightly relied upon by the Tribunal. The petitioner-Management could also not sufficiently explain their conduct in engaging fresh hand after terminating the services of the respondent-workman. One of the witnesses of the Management conceded during his cross- examination that as per record, Azhar Khan had worked as daily wager from 3.5.2005 to 3.6.2005 and this was after the termination of CIVIL WRIT PETITION NO.22083 OF 2010 :{ 9 }: the services of the respondent-workman. The Tribunal, thus, found the termination to be in violation of the provisions of Sections 25-F but of 25-G of the Industrial Disputes Act as well. Faced with this situation, the counsel for the petitioner- Management made a desperate attempt to challenge that part of the award, whereby the Labour Court had directed reinstatement of the respondent-workman. In this regard, counsel has referred to Incharge Officer and Anr. Vs. Shankar Shetty, 2010(4) SCT 261. In this case, the court has considered the question whether an order of reinstatement should automatically follow in case where the engagement of a daily wager has been brought to an end in violation of Section 25-F of the Industrial Disputes Act. The Hon'ble Supreme Court has placed reliance in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board, 2009(3) S.C.T. 790, where some of the recent decisions of the said court were noticed to observe as under:- “It is true that the earlier view of this After articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of CIVIL WRIT PETITION NO.22083 OF 2010 :{ 10 }: reinstatement has been held to meet the ends of justice.” The case of Jagbir Singh (supra) has also been applied in some other judgments, like Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal & Ors., 2010(2) S.C.T. 609. No doubt, in this case, the court ultimately took a view that the High Court had erred in granting relief of reinstatement to the respondent and instead the court granted compensation of Rs.one lac in lieu of reinstatement. The difference in the case at hand and the cases referred to above is that here the Labour Court had directed reinstatement of the workman, whereas in the case of Incharge Officer (supra), the Labour Court had rejected the claim of the workman. The workman had then challenged the award of the Labour Court before the High Court and the Labour Court award was turned down directing reinstatement of the workman on account of violation of Section 25-F, which was upheld by the Division Bench. This was then challenged before the Supreme Court. In the present case, the issue is to see whether the order of reinstatement would call for interference in exercise of writ jurisdiction. The facts in the present case would speak for itself. To what extent the Management had gone to decline the justified claim of the respondent-workman is seen to be believed. A Management, like Insurance Company seems stooping so low as to manipulate the service details to make payment on fictitious names while taking work from the workman. It would be totally unjustified and unfair mode. I, therefore, would not find any fault with the view taken by the Labour Court to direct reinstatement of the respondent-workman. In this regard, I can seek support from some observations made by the Hon'ble Supreme CIVIL WRIT PETITION NO.22083 OF 2010 :{ 11 }: Court in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, 2010 (2) Law Herald 891, where the court has observed that High Court has committed serious jurisdictional error by interfering with the award of reinstatement passed by Labour Court. The counsel for the petitioner had then raised an objection for admission of photo copies of documents by the Labour Court and for placing reliance thereon. In support, the counsel relies upon Shaliman Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) and others, (2010) 8 Supreme Court Cases 423. As per the Hon'ble Supreme Court, the admissibility of a document is to be decided at the stage of admission itself, instead of leaving it to be decided subsequently. The plaintiff therein has produced a photo copy of trade mark of registration certificate instead of original. This was objected to by the opposite party. The trial court had provisionally admitted the photo copy subject to objection of proof and admissibility. In this regard, the Hon'ble Supreme Court had held that the trial court should not have “marked” as exhibits the xerox copies of the certificates of registration of trade mark in the face of objection raised by the defendants. The ratio of law, as would emerge from this case, is not applicable to the facts of the present case. The original of the documents, photo copies of which were produced by the workman, were concededly in possession of the petitioner-Management. The Management had not objected to the production of photo copies when these were produced and proved on record. The Labour Court had required the petitioner-Management to produce the original vouchers, photo CIVIL WRIT PETITION NO.22083 OF 2010 :{ 12 }: copies of which were produced by the workman. Despite opportunities, the Management failed to produce the original vouchers, which were in its possession. This is rather a case of drawing adverse inference. As per Section 61 of the Evidence Act, the contents of a document may be proved either by primary or by secondary evidence. No doubt, the documents must be proved by primary evidence, but Section 65 would regulate those cases where secondary evidence relating to a document may be given. Thus, a secondary evidence may be given of the existence condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved. If a person does not produce the document despite notice as mentioned in Section 66, then the secondary evidence is clearly admissible. Photo copy of a document is a secondary evidence. In my view, the requirement of notice to the petitioner to produce the original of these documents was given, besides the sufficient opportunities to produce the original and hence the Tribunal was justified in relying upon the photo copies of the documents so produced and there cannot be a valid legal objection to the same. Equally untenable is the plea raised by the counsel regarding the burden of proof on the part of the respondent-workman to show that he had completed 240 days and that he had failed to discharge the same. The Labour Court never put any burden on the Management to show that the workman had not completed 240 days. The workman clearly gave evidence and has deposed that he has completed 240 days in a calendar year and rather relies upon the CIVIL WRIT PETITION NO.22083 OF 2010 :{ 13 }: documentary evidence to show that he had completed 240 days if the salary which was shown to have been paid on some fictitious names indeed was paid to the respondent-workman. The ratio of law laid down in The Chief Soil Conservator, Punjab and others Vs. Gurmail Singh, 2010(1) SLR 416, thus, in any manner would not come to help the cause of the petitioner as this is not a case where any burden was put on the Management to prove that the workman had not worked for more than 240 days. The conduct and behaviour of the petitioner-Management is such that it would not only need to be deprecated but would require to be condemned for so seriously contesting in order to justify their fraudulent and mischievous stance. The Management has not only wasted the time of the Labour Tribunal in raising fictitious, false and fraudulent pleas but has done so before this court without any success. The present writ petition, therefore, deserves to be dismissed with an exemplary cost, which is assessed as Rs.50,000/-, which is so ordered. This cost be deposited in the accounts of the Legal Services Authority. Union Territory, Chandigarh. December 10, 2010 ( RANJIT SINGH ) ramesh JUDGE