JUDGMENT
S.S. Sudhalkar, J.
1. Written statement on behalf of respondent No. 1 has been filed today in Civil Writ Petition No. 16940 of 1999, in the court. Copy supplied to counsel for the petitioner. The same is taken on record.
2. In both these writ petitions, being Civil Writ Petition Nos. 16940 and 16963 of 1999, the facts are similar and the question of law to be decided is the same. They are heard together and are disposed of by this common judgment. For the sake of convenience, we shall refer to the facts of Civil Writ Petition No. 16940 of 1999.
3. Respondent No. 1 had contended that he had worked upto 1989 when his services were terminated. The Labour Court has drawn adverse inference because according to it, relevant records regarding service of respondent No. 1 was not produced. The contention of respondent No. 1 is that he had worked for more than 240 days in the calendar year prior to his termination.
4. Learned counsel for the petilioner argued that record for the year 1987-88 was produced. Respondenl No. 1 had come out with the specific case of having worked upto 1989. The relevant record to be produced should have been for the year 1988-89 and not of previous one. Counsel for the petitioner argued that he had not worked in the year 1988-89. This could have been proved by the petitioner by producing the record of relevant year.
5. Counsel for the petitioner argued that petitioner was not called upon tor producing the record. We do not accept the argument that he should have been called upon to produce the record. In the case of Gopal Krishnaji Ketkar v. Mohamed Haji Lalit and others, reported as AIR 1968 SC 1413, it has been held by the Supreme Court that a party in possession of best evidence, which would throw light on the issue in controversy, withholds it, the Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on the party. It is further held by the Supreme Court that the party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.
6. In view of this clear law laid down by the Supreme Court, we do not find that the Labour Court has erred in coming to the conclusion against the petitioner. The Labour Court has observed as under :-
“8. Learned Authorised Representative of the management has no doubt urged that the workman is not entitled to protection of Section 25F of the Industrial Disputes Act, 1947 as he failed to prove his continuous employment for more than 240 days in a calendar year, but in my opinion, this contention gets bereft of its force on account of unclean conduct on the part of management in not producing the entire service record of the employee. The defence plea of the management was proved palpably false in the light of documents Ex. W-1, Ex. W-5 i.e gate pass, shifting duty record (for the) period of 10/89 and 11/89 of the employee indicating that the workman was in an employment of the respondent. Credit goes to the workman that somehow he managed to produce this record from the custody of the employer and the genuiness of these documents is rather admitted by the employer. It is settled principal of law as laid down in a case of our Hon’ble High Court Bal Kishan v. Presiding Officer, Labour Court, Panipat, 1996(3) SCT 548, wherein it is clearly held that burden of proof is on employer, if the disputes completion of 240 days of service of the workman. Since no record was produced by employer though it is maintained by him, no employer is supposed to pay salary to its workers without maintaining record. If the muster rolls or attendance register is not produced for controversial period of employment, the employer is guilty of withholding best evidence and the burden of proof is not discharged and objection of employer will not sustain.”
We find nothing illegal with the finding of the Labour Court.
7. Learned counsel for the petitioner argued that the workman was employed on seasonal basis and for a particular season only. However, no evidence has been shown to substantiate this plea. The best evidence for this argument has with the petitioner which was not produced. The above principle in the law laid down in the case of Gopal Krishnaji Ketkar (supra) will also apply to this plea.
8. Learned counsel for the petitioner argued that the establishment was taken over by the petitioner from Punjab Khand Udyog Limited which was a company registered under the Companies Act and that the respondent was worker of that company. He also argued that the company was taken over in May, 1991. However, he is not able to show that such a plea was taken before the Court below.
9. Learned counsel for the petitioner further argued that the back wages ought not to have been given. In the case of workman-Dalbir Singh, the Labour Court has awarded 50% back wages and in the case of Sowaran Chand, the back wages awarded are 75%. He has argued that for daily wager, the back wages at this rate should not have been awarded. We do not find any reason for not granting the back wages to the respondent-workman in view of the decision in the case of Hari Palace, Ambala City v. The Presiding officer, Labour Court and another, 1979 PLR 720. It may be noted that full back wages have not been given by the Labour Court.
As a result, we find that these writ petitions are without merit. They are hereby dismissed.
10. Petitions dismissed.