IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 2149 of 2009.
Date of Decision : February 11, 2009.
Madan Kumar. .... Petitioner.
Versus.
Presiding Officer, Labour Court, Panipat, ...Respondents.
and another.
CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present: Mr. Ravi Kant Sharma, Advocate,
for the petitioner.
AUGUSTINE GEORGE MASIH, J. (ORAL).
In the present writ petition, the challenge is to the award dated
10.11.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour
Court, Panipat, vide which the claim as made by the petitioner-workman has
been rejected on the ground that the petitioner-workman has failed to prove
that he has worked with the respondent-management for more than 240 days
in the preceding 12 months from the date of his termination and further that
the claim with regard to non compliance of Sections 25-G and 25-H of the
Industrial Disputes Act (hereinafter referred to as the Act) are also not
acceptable as the subsequent appointments have been made on regular basis
whereas the petitioner-workman was appointed on daily wage basis.
Counsel for the petitioner-workman contends that the positive
assertion was made by the petitioner-workman before the Labour Court in his
statement that he has been working with the respondent-management for the
C.W.P. No. 2149 of 2009. -2-
last two years i.e. from 01.01.1996 to 18.03.1998. After an assertion to that
effect, it was for the respondents to produce the records before the Labour
Court to show that the petitioner-workman has not worked with the
respondent-management for the period claimed by the petitioner-workman
for which the onus was on the respondent-management.
He contends that since the records have not been produced by
the respondent-management before the Labour Court, an adverse inference
should have been taken against the respondent-management whereas
respondent-management has been given benefit of non production of
records.
He further contends that it has come on record that six persons
have been appointed after the termination of the petitioner-workman by the
respondent-management but still finding has been given by the Court that
there is no violation of Sections 25-G and 25-H of the Act.
I have heard counsel for the petitioner-workman and have gone
through the records of the case as well as impugned award. The contention
of counsel for the petitioner-workman that non production of records by the
respondent-management should have been taken in favour of the petitioner-
workman rather than the Court has proceeded to give benefit to the
respondent-management for their non production of records, he relies upon
the Judgment of Division Bench of this Court in the case of Gurdaspur
Sugar Mills Limited Versus Dalbir Singh and others, 2001 (1) R.S.J. 468,
to submit that the onus of production of records was on the respondent-
management and non production thereof would be taken as a presumption
against the respondent-management. He further contends that the Judgment
states that burden of proving non completion of 240 days is on the employer
C.W.P. No. 2149 of 2009. -3-
and that have not been discharged. On the basis of non production of
records, the benefit for which the petitioner-workman was entitled to, has
not been granted to him.
This contention of counsel for the petitioner cannot be accepted
in the light of the Judgment of Hon’ble the Supreme Court in the case of
Range Forest Officer Versus S.T. Hadimani, 2002(3) Supreme Court
Cases, 25, in para-3 held as follows :-
“3. For the view we are taking, it is not necessary to go into
the question as to whether the appellant is an “industry” or
not, though reliance is placed on the decision of this Court in
State of Gujarat v. Pratamsingh Narsinh Parmar. In our
opinion the Tribunal was not right in placing the onus on the
management without first determining on the basis of cogent
evidence that the respondent had worked for more than 240
days in the year preceding his termination. It was the case of
the claimant that he had so worked but this claim was denied by
the appellant. It was then for the claimant to lead evidence to
show that he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is only his own
statement in his favour and that cannot be regarded as
sufficient evidence for any court or tribunal to come to the
conclusion that a workman had, in fact, worked for 240 days in
a year. No proof of receipt of salary or wages for 240 days or
order or record of appointment or engagement for this period
was produced by the workman. On this ground alone, the
award is liable to be set aside. “
C.W.P. No. 2149 of 2009. -4-
This judgment has further been followed by Hon’ble the
Supreme Court in the case of Rajasthan State Ganganagar Mills Limited
Versus State of Rajasthan 2004 (8) S.C.C. 161, and further in the case of
R.M. Yalleti Versus The Assistant Executive Engineer, 2006(1) S.C.C.
106.
The next contention of counsel for the petitioner-workman with
regard to violation of Sections 25-G and 25-H of the Act, also cannot be
accepted for the reason that the appointments which are alleged to have been
made after the termination of service of petitioner-workman, were all on
regular basis. It is an admitted position that the petitioner-workman was
appointed on daily wage basis and the procedure prescribed for appointment
on regular basis were not followed in the present case when the appointment
of workman was made.
Counsel for the petitioner-workman contends that nothing has
come on record that six appointments which have been made subsequent to
the appointment of the petitioner-workman was actually as per statutory
rules.
This assertion of counsel for the petitioner-workman also
cannot be accepted for the reason that there is a specific assertion on behalf
of respondent-management in the written statement and thereafter, in the
statements made before the Labour Court as well as appointment letter
which has been placed on record as Ex. M5 shows that the said
appointments are in accordance with statutory rules. The onus, therefore,
after the production of records with regard to that assertion was upon the
petitioner-workman that the said appointments were not in accordance with
statutory rules, which the petitioner has failed to prove.
C.W.P. No. 2149 of 2009. -5-
That being so, no illegality in the award dated 10.11.2008
(Annexure-P-5), passed by the Labour Court, Panipat, can be said to have
been committed which would call for interference by this Court.
In view of the above, the present writ petition stands dismissed.
(AUGUSTINE GEORGE MASIH)
JUDGE
February 11, 2009.
sjks.