JUDGMENT
Swantanter Kumar, J.
1. Challenge in this petition under Articles 226/227 of the Constitution of India is to the award dated 17.4.2000 passed by Industrial Tribunal-cum-Labour Court, Gurgaon annexed to the petition as annexure P-3, vide which the claim petition of the petitioner-workman for reinstatement was rejected.
2. According to the petitioner, he was appointed as Baildar by the management on 1.12.1986 and his services were illegally terminated by the management without complying with the statutory provisions of Section 25-F of the Industrial Disputes Act. 1947 (hereinafter referred to as the “Act”) on 1.1,1993. Thus, he prayed for reinstatement with continuity of service and full back wages. Upon reference under Section 10 of the Act, the State Government contested the claim of the petitioner and took up the plea that the workman had not worked for 240 days in the year immediately preceding his alleged termination and as such he was not entitled to any relief.
3. As already noticed the claim of the workman was declined by the Labour Court while observing as under:
“Although the petitioner has stated that he had rendered duty continuously from
1.12.1989 to 31.12.1992, yet he has not produced any documentary evidence. The
petitioner should have summoned attendance register, wages register from the
management to prove his employment with the management and also that he had
completed duty for 240 days during any year.”
As is clear from the bare reading of the above finding recorded by the Labour Court, the claim petition of the petitioner has been rejected as he failed to summon the attendance register, wages register and muster roll etc. to prove that he had completed 240 days during any year. In the written statement filed by the management before the Presiding Officer in para 2, it was specifically stated as under:
“That the record upto the year 1991-92 of this Forest Division has been weeded
out under Rule 15.25 of Haryana Forest Manual Volume-II. Due to this reason,
nothing can be said about the employment upto 1991-92.”
If the records had been weeded out as claimed by the management respondent itself, it is not understandable as to how the learned Presiding Officer could draw any inference against the workman. The record itself are not available and at the very outset i.e. at the time of filing the written statement, the management had admitted (his particular fact. The workman had a primary onus to discharge, which he discharged by making a statement on oath and thereafter, it was for the management to show that actually the workman had not worked for 240 days. The government works on the records maintained in due course of its business and if any records were available, the learned Presiding Officer was not correct in law in drawing an adverse inference against the workman for non production of such record. In this regard, reference can be made to the judgment of this Court in the case of Bal Kishan v. Presiding Officer, Labour Court, Panipat 1996(3) S.C.T. 548, where while relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishanji Ketkar v. Mohamed Haji Latif and Ors., 2 A.l.R. 1968 S.C. 1413, the Court held that the adverse inference against the workman could not be drawn as the best evidence was available with the management alike
in the present case of Stale Government.
4. I am of the considered view that the learned Presiding Officer has fallen in error of law in drawing an adverse inference against the workman and the finding recorded in the award referred to above cannot be sustained. In the case of Municipal Committee Tauru v. Harpal Singh and Anr., 3 1998 (5) SCC 635, it has been held that in appropriate case, the High Court in exercise of its powers under Articles 226/227 of the Constitution of India can remand the matter to the learned Labour Court or the Presiding Officer for its decision in accordance with law.
5. Consequently, the award dated 17.4.2000 is set-aside. The matter is remanded to the Labour Court for fresh decision and adjudication in accordance with law. The parties would be at liberty to lead further evidence if they so desire with leave of the Labour Court.
6. It is expected that the Presiding Officer, Labour Court, Gurgaon may dispose of this matter expeditiously as the reference was made in the year 1996.
7. The writ petition is accordingly allowed, leaving the parties to bear their own cost.