High Court of Punjab and Haryana, Chandigarh
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State of Punjab v. Karnail Singh & Anr - LPA-2824-2001  RD-P&H 619 (7 February 2006)
State of Punjab V. Karnail Singh and another Present: Shri A.S.Grewal, Additional Advocate General, Punjab, for the petitioner for the appellant.
Shri R.S. Sharma, Advocate for respondent No.1.
The judgment of the learned Single Judge dated August 21,2001, has been challenged by the management through the present Letter Patent Appeal .The learned Single Judge through the aforesaid judgment had set aside the award of the Labour Court dated November 3,1999 and consequently directed the reinstatement of the respondent-workman with full back wages from the date of the termination till the date of reinstatement.
Respondent-workman, Kanail Singh, raised an Industrial Disputes claiming that his service had been terminated on September 1,1993, without following the procedure of Industrial Disputes Act and, that he had served for a period of 252 days as a Guage Reader. Besides contesting the status of the respondent-workman as a Guage Reader, it was claimed by the management that he was working as a helper to Beldar on Letters Patent Appeal No.2824 of 2001 2
daily basis and had worked only for 134 days. However, the Labour Court found that the workman had not completed a period of 240 days within 12 preceding months prior to his termination and consequently the reference was answered against the workman.
The award of the Labour Court was challenged by the workman through a writ petition before this Court.The learned Single Judge held that total number of working days of the workman could be taken to be 218 days. It was further held by the learned Single Judge that the management was not coming forth with clean hand and has not presented complete record before the Labour Court. Accordingly, relying upon the judgment of the Apex Court in Gopal Krishnaji Ketkar V. Mohamed Haji Latif and others A.I.R. 1968 SC 1413. an adverse inference was drawn against the management. Consequently, it was taken that the workman had completed more than 240 days prior to the date of his termination.
Consequently, the writ petition filed by the workman was allowed and the award of the Labour Court was set aside. The workman was ordered to be reinstated with full back wages. The management has now challenged the judgment of the learned Single Judge and, therefore,the present Letters Patent Appeal.
Letters Patent Appeal No.2824 of 2001 3
We have heard Shri A.S.Grewal, learned Additional Advocate General,Punjab for the appellant and Shri R.S. Sharma, learned counsel appearing for respondent No.1 and with their assistance have also gone through the record case.
Shri Grewal has vehemently contended that the learned Single Judge has wrongly inferred that the workman had worked for 218 days, prior to his termination. It has been pointed out that the workman had been terminated with effect from September 1,1993 and it was not shown by him that he had worked for the months of July and August,1993. It has also been pointed out that even as per the finding recorded by the learned Single Judge, at the most the workman had worked for a period of 218 days only.
On that basis, it has been argued that no adverse inference could have been drawn by the learned Single Judge against the management for non production of the record, inasmuch as it was for the workman to prove that in fact he worked for a period of 240 days within 12 preceding months prior to the date of his termination. In support of the aforesaid contentions the learned counsel has placed reliance upon two judgments of the Hon'ble Supreme Court of India in the cases of Range Forest Officer V.
S.T.Hadimani A.I..R. 2002 Supreme Court 1147 and Municipal Letters Patent Appeal No.2824 of 2001 4
Corporation, Faridabad V. Siri Niwas 2004(8) S.C.C. 195. On the strength of the aforesaid judgments it has been argued that the burden of proving that the workman had worked continuously for 240 days in the preceding one year prior to the retrenchment was upon the workman and no adverse inference could be drawn against the management for non-production of any record until and unless an application for production of the aforesaid record was made by the management. On the other hand, Shri R.S.Sharma, learned counsel appearing for the workman has supported the judgment of the learned Single Judge and has argued that a false plea had been taken with regard to the working days of the workman by the management and,therefore, the learned Single Judge has rightly placed reliance upon Gopal Krishnaji Ketkar's case (supra) and drawn adverse inference against the management.
We have duly considered the aforesaid contentions of the learned counsel. In our view the present appeal is liable to be accepted.
From the perusal of the judgments of the Apex Court relied upon by the learned counsel for the appellant, it is apparent that the onus of proof that the workman had, in fact , worked for 240 days in a year lies upon the workman alone and the mere statement of the workman in this Letters Patent Appeal No.2824 of 2001 5
regard was not sufficient to prove the aforesaid fact. There is nothing on the record to show that any application for production of any record was filed by the workman before the Labour Court. In these circumstances, the management was not obliged to produce any record and for such non- production of record, no adverse inference could be drawn against the management. Even as per the finding of fact recorded by the learned Single Judge, at the most, it could be taken that the workman had worked for 218 days, although the aforesaid inference is still doubtful. In any case, there is nothing on the record to show that the workman had completed 240 days in preceding 12 months prior to the date of his retrenchment. Thus, we find that the learned Labour Court was wholly justified in answering the reference against the workman.
Consequently, the present appeal is allowed. The judgment of the learned Single Judge is set aside and the award of the Labour Court is restored.
( Viney Mittal )
October 4,2005 ( H.S. Bedi )
Letters Patent Appeal No.2824 of 2001 6
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