CWP No. 10196 of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CWP No. 10196 of 2009
Date of decision November 3, 2009
Jugal Kishore
....... Petitioner
Versus
Presiding Officer, Labour Court, Gurdaspur and others.
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. R. K. Sharma, Advocate
for the petitioner.
Mr. APS Maan, DAG., Punjab
for the respondents.
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1. Whether reporters of local newspapers may be
allowed to see the judgment ? No
2. To be referred to the reporters or not? No
3. Whether the judgment should be reported in
the digest? No
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K. Kannan, J (oral).
1. The writ petition challenges the order of rejection
of reference sought at the instance of the workman. The contention of the
workman was that he had been employed as a Baledar since 1.11.1988 to
31.3.1990 when his services were illegally terminated. The workman
examined himself to speak about the period of engagement, while the
Management had two contentions to take viz. that he had not worked for a
continuous period of 240 days and that a reference was sought nearly 10
years and 9 months after the date of termination and hence the workman
who was guilty of laches is not entitled to any relief.
2. The Labour Court held that the burden of proof
was on the workman to establish the period of 240 days of continuous
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service and found inconsistency in his version that he contended that the
post of Baledar itself was permanent but he had been employed on daily
rated basis. The Labour Court found that the workman had not examined
any co-worker to discharge the burden which was heavy on the workman
relating to his period of work. The finding of the Labour Court in my view,
appears to be no correct for mere oral evidence of the workman could not
have also been found to be credible enough to uphold the claim. The best
evidence is always available with the Management and in a case where the
workman gives evidence relating to his period of engagement and he also
gives cogent evidence of the available materials with the Management and
when the Management does not produce such records the Court would be
even justified in drawing an adverse inference against the Management.
3. As regards the proposition of law that the burden
of proof is always on the workman it must be stated that the burden of
proof never shifts. The explanation of the principle shall be in the context
of how the initial burden is cast which can never shift. The onus of proof,
however, is an expression which Courts employ to see how the initial
burden is sought to be discharged when the Court looks for nature of
evidence which is adduced by the party against whom the evidence is
tendered. In such an event, it is stated that the onus shifts to the other
side. In this case, when the workman had given evidence of number of
days his engagement, he had also referred to the documents which are
available with the Management, it must be taken that the onus shifted to
the Management to adduce evidence on the number of days that he
worked. Although, the documents have been available with the
Management from November, 1988 up to March, 1990 it had not produced
evidence for the said period. In fact it was in evidence of the Management
witness that the documents had been available when the written statement
was prepared. The justification for non-production was only that the
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document was too old. He had also admitted that there was no loss or
misplacement of the records for the relevant period. It was definitely a
case where the Management was trying to conceal the best evidence
which was available.
4. The learned counsel for the respondent refers to a
decision of the Hon’ble Supreme Court in The Range Forest Officer Vs.
S.T. Hadimani reported in 2002 (3) SCTC 25 where the Hon’ble
Supreme Court was referring to a case of a party merely filing an affidavit
contending for proof of his calculation and the Court held that it was not
sufficient for determination of number of days of service. Yet another case
of Hon’ble the Supreme Court in Sriram Industrial Enterprises Ltd Vs.
Mahak Singh and others 2007 (2) RSJ 558 dealt with a situation of the
non production of registers and muster rolls when the Court held that the
best evidence was withheld and when the Court held that it was entitled to
draw an adverse inference. In my view, the fact of the case required an
application of law as explained by the Hon’ble Supreme Court in the latter
case referred to above. The rejection of the claim of the workman that the
period of 240 days was not proved was therefore, unjustified.
5. For non-compliance of provisions of Section 25-F,
the adequate relief would always be required to be examined on the basis
of particular evidence of each case. In this case, although, the workman
had pleaded that he had been illegally terminated from service on
31.3.1990, he had issued a demand notice and sought reference that was
about 11 years and 9 months from the date when the termination had taken
place. The evidence given by the workman was that he had approached
the respondent many times and requested them to reinstate him in the old
job with full back wages but that had been put off on one pretext or the
other. This statement appears to be vague. It is most artificial to say that
he was simply visiting the factory for 12 years without even making
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approach to the Court at the appropriate time. If that was the attitude, the
workman could not be granted the benefit of reinstatement. The
appropriate relief has to be considered from the point of view of number of
years of service that he has put in and the years that he was fighting for
justice. The workman had but worked for 17 months and terminated in the
year 1990. There was unexplained delay for making the claim.
Reinstatement of such a workman after nearly two decades when his
services were terminated does not in my view, appear to be appropriate.
For the period of service that he had worked the adequate relief for non-
compliance of Section 25-F in my view would be payment of Rs.35,000/-,
which amount shall be paid by the Management within a period of four
weeks from the date of receipt of copy of the order.
6. The award of the Labour Court is set aside and
modified to admit the claim of the workman as set out above. The writ
petition is allowed on the above terms. There shall, however, be no
direction as to costs.
(K. KANNAN)
JUDGE
November 3, 2009
archana