Punjab-Haryana High Court
Ajit Sharma vs Presiding Officer Industrial ... on 10 July, 2024
Neutral Citation No:=2024:PHHC:086489
CWP-2668-2017 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
211
CWP-2668-2017
Decided on : 10.07.2024
Ajit Sharma
. . . Petitioner(s)
Versus
The Presiding Officer, Industrial Tribunal-cum-
Labour Court, Panipat and another
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Ms. Abha Rathore, Advocate
for the petitioner(s).
Mr. Jatinder Nagpal, Advocate
for respondent No.2.
****
SANJAY VASHISTH, J. (Oral)
1. Petitioner - Ajit Sharma (workman) has filed the present writ petition by challenging the award dated 25.07.2016 (Annexure P-9), passed by learned Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat (for brevity, 'learned Tribunal'), whereby, Reference No.590 of 2010, under Section 10(1)(C) of the Industrial Disputes Act, 1947 (in short, 'ID Act'), has been answered against him, by declining the relief claimed through the demand notice.
2. Pleaded case through the demand notice-cum-claim statement of the petitioner - workman is that he worked with respondent No.2 - Management (M/s Mittal International) w.e.f. 01.03.2000 to 24.10.2007, as Fabric Cutter with a monthly salary of Rs.3640/-. While working in the factory, he suffered 20% disability due to an accident. After recovering from 1 of 10 ::: Downloaded on - 24-07-2024 02:13:15 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -2- the injury, workman performed his duties from 15.05.2008 to 30.12.2009. However, on 30.12.2009, services of the workman were orally terminated, without any notice or pay in lieu of notice and even without payment of any retrenchment compensation. Thus, workman alleged that the termination is in violation of Section 25-F of the ID Act, despite completion of 240 days in the preceding one year of his termination. Besides, workman has also pleaded the violation of Sections 25-G and 25-H of the ID Act.
Thus, he claimed his reinstatement with continuity in service along with full back wages and other consequential benefits.
3. In the written statement filed by the Management (respondent No.2 herein), it is pleaded that the workman had submitted his resignation himself and same was accepted. In paragraph No.5 of the reply, it is pleaded in specific by the Management that the workman had tendered resignation and taken full and final dues in the year 2007. Therefore, since the workman was not in service, no action was contemplated by the Management on 31.12.2009. Consequently, no occasion arose to dispense with his services on 31.12.2009.
Further pleaded that none of the provisions of the ID Act i.e. Sections 25-F, 25-G and 25-H of the ID Act, has been violated.
4. After filing of the written statement, vide order dated 15.11.2011, following issues were framed by learned Tribunal:-
"1. Whether the termination of services of workman Shri Ajit Sharma is legal and valid. If not so, to what relief, the workman is entitled ? OPW
2. Relief."
5. Workman himself appeared as WW1, and filed his affidavit as 2 of 10 ::: Downloaded on - 24-07-2024 02:13:16 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -3- WW1/A, wherein reiterated his version given in the demand notice-cum- claim statement. It was specifically pleaded that he suffered 20% disablement from the injury due to an accident while working in the factory. Therefore, after the first set of working period w.e.f. 01.03.2000 to 24.10.2007, he was again allowed to join the work from 15.05.2008 to 30.12.2009 by the Management. Further he stated that Management had obtained his signatures on some blank papers on the pretext of reopening his case. There is a specific denial by workman of submitting any resignation, as well as denial that he ever received the dues in full and final form from the Management.
Still learned Tribunal relied upon the resignation letter dated 19.01.2019 and the settlement of the dispute vide Ex.M-2 and receipt of full and final dues vide Ex.M-3 and therefore, answered reference against the workman and in favour of the Management.
In fact, factual story put-forth by the workman is ruled out and the story put-forth by respondent No.2 - Management is held to be true.
6. For reversing the findings, learned counsel for the petitioner - workman refers to the contradiction in the stand taken by respondent No.2 - Management and submits that in paragraph No.5 of the reply, respondent No.2 - Management states that on tendering the resignation, full and final settlement was done in the year 2007. For convenience, relevant paragraph No.5 is reproduced here-under:-
"5. That averments of para No.5 are incorrect and are denied. The working days of workman are not to be considered in view of fact that he tendered resignation and taken full and final dues in the year 2007. So no action was contemplated by respondent on 31.12.2009 as alleged and wrongly pleaded."
3 of 10 ::: Downloaded on - 24-07-2024 02:13:16 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -4- Thereupon, Ms. Abha Rathore, Advocate for the petitioner - workman, refers to the receipt dated 21.01.2009, prepared on token No.256 (Ex.M-3) and submits that as per the said receipt, an amount of Rs.21,044/- being full and final payment, was received in October, 2007 by the petitioner
- workman. Surprisingly, said receipt was prepared on 21.01.2009 and not on the alleged date of submission of resignation or nearby that date. Thus, preparation of receipt clearly indicates that some fraud has been committed against the workman. For reference, correct/relevant extracted version of the receipt dated 21.01.2009 (Ex.M-3) is reproduced here-under:-
" RECEIPT RECEIVED WITH THANK A SUM OF RS.21044.00 BEING THE FUL AND FINAL AMOUNT DURING THE MONTH OCTOBER 2007 AFTER SUBMITTING MY RESIGNATION TO M/S MITTAL INTERNATIONAL G.T. ROAD SEWAH, PANIPAT.
FURTHER I HAVE RECEIVED ALL MY DUES AND I WILL NOT GO TO THE COURT OF LAW TO TAKE ANY LITIGATION PROCEEDINGS AGAINST THE COMPANY.
SD/-
(AJIT SINGH)"
7. Ms. Abha Rathore, Advocate for the petitioner - workman further refers to the statement of WW2 - Balram (HR Manager) and submits that despite there being a judicial order for production of the summoned record i.e. muster roll from 2007 to 2009 and Bonus record from 2007 to 2009, same was not produced. Said witness even admitted that gratuity is paid, workman has completed 5 years of service and he can produce the record of the workman, if any named. Relevant statement dated 05.03.2013 of WW2 - Balram (HR Manager), is reproduced here-under:-
4 of 10 ::: Downloaded on - 24-07-2024 02:13:16 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -5- "Statement of WW-2 Bal Ram (......... HR Manager) ............... Stated that the summoned record i.e. muster Roll from the year 2007 to 2009 and bonus record from 2000 to 2009 are not available with respondent establishment, due to which I cannot produce them. Bonus record for subsequent period is available. I can produce the same. Grauity is paid to workman who has put in 5 years of service. If you name any workman I will produce.
XXXX deferred 5.3.20113"
Thus, counsel submits that adverse inference is required to be drawn against the Management, which learned Tribunal has failed to do so.
8. I have examined the facts and circumstances of the case as well as complete record of the case and also the referred documents.
9. First of all, the receipt (Ex.M-3) relied upon by respondent No.2
- Management, appears to have been prepared mischievously on 21.01.2009.
Even respondent No.2 - Management has not produced any relevant document to show that the resignation was submitted in the year 2007.
Once, it is specifically pleaded case that resignation was tendered in the year 2007 (paragraph No.5 of the reply), said fact was required to be proved with the receipt prepared in the year 2007. This fact is also in contradiction with the fact disclosed during the cross-examination by WW2 - Sh. Balram (HR Manager), who works in the office of respondent No.2 - Management. Said witness stated that workman had submitted resignation Ex.M-1 on 19.01.2009 and issue was settled on 21.01.2009 (Ex.M-2). The mentioned date of submitting of the resignation on 19.01.2009, is in contradiction with the date mentioned in the reply, wherein, it is pleaded that the resignation was tendered in the year 2007.
5 of 10 ::: Downloaded on - 24-07-2024 02:13:16 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -6- Furthermore, by moving an application dated 08.05.2012, workman requested the Court to summon certain witnesses along with record. The relevant part of said application is reproduced as under:-
" Ajit Sharma s/o Devi Chand
versus
M/s Mittal Industrial Plot No.275, Sector-29, HUDA, Panipat.
Application for summoning of W/M witness.
Madam, The aforesaid reference case is fixed on 22.5.2012 further evidence of the workman before this Hon'ble Court.
That the workman wants to summon the following witnesses in its support.
Concerned clerk of M/s Mittal Industrial Plot No.275 Sector-29, HUDA, Panipat through its Manager alongwith
1. Mustrol w.e.f. 2007 to 15.8.2009.
2. Gratuity record paid to workman by cheque no., date, and name of the bank and account in respect of workman Ajit Sharma with effect from 2000 onwards.
3. Bonus record showing the payment made to the workman w.e.f. 2000 to date.
It is, therefore, humbly prayed that the said witness be ordered to be summoned through Court for the date fixed i.e. 22.5.2012.
Sd/-
Date: 8.5.2012 Workman"
10. It is thereafter that the statement of official witness of the Management i.e. WW2 - Balram (HR Manager) was recorded, who admitted that he can produce the record of the workman, who served for 5 years in the office, if any, named. However, he failed to give any substantial reason as to why the record, which is summoned through him, has not been produced by him.
Even no material or instruction has been produced by the Management to show that in compliance to a specific instruction and on a particular date, the record pertaining to the petitioner - workman, had already been destroyed.
Regarding the date of resignation, there is another contradictory
6 of 10 ::: Downloaded on - 24-07-2024 02:13:16 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -7- stand. WW2 - Balram (HR Manager) when appeared in the witness-box, though he admitted the working of the petitioner - workman with the Management, yet submitted that the resignation letter was submitted on 19.01.2019 and on 21.01.2009, claimed to enter into settlement vide Ex.M-
2.
11. From the said statement, another impression that the Court can draw is that after suffering injury, in October 2007, the workman reported in the office of respondent No.2 - Management and something happened in the year 2009 only. Thus, pleaded fact in the written statement that the resignation letter was tendered in 2007, appears to be an unsuccessful attempt to prove that the workman never worked in the office beyond 24.10.2007 i.e. first set of his working. Even the salary and EPF record have not been submitted despite being summoned by the learned Tribunal.
12. To examine the said situation, this Court is guided by the law laid down by this Court (Punjab and Haryana High Court) in the case of The Divisional Forest Officer (Social Forestry Project), Bhiwani, now the Divisional Forest Officer (Territorial), Bhiwani v. Smt. Roshni Devi and another, 2010 (4) S.C.T. 271 : Law Finder Doc Id #215465 , wherein, in para Nos. 5 and 6, following observations have been authored:-
"5. The contention of counsel for the petitioner/Management that the adverse inference can only be drawn against the Management, if the Management fails to produce the relevant records before the Labour Court cannot be accepted in the case in hand. The Worklady being a daily wager was neither issued appointment letter nor termination letter. The Management is the custodian of the records. The onus to prove that the Worklady had completed more than 240 days in service in the 12 preceding months from the date of her termination is on the Worklady and for discharging that onus, the Worklady was fully dependent on the Management for production of the records. She had, therefore, moved an application before the Labour Court, calling upon the Department to produce the relevant records, which were spelt out in the said 7 of 10 ::: Downloaded on - 24-07-2024 02:13:16 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -8- application. The said application was allowed by the Labour Court and the records were summoned. Shri Ramesh Kumar/WW-2, Clerk, o/o Divisional Forest Officer (Territorial), Bhiwani, initially appeared on 10.03.2006, when he stated before the Labour Court that he had not brought the complete summoned records because the records have been sent to other courts in cases and he would produce the complete records on the next date of hearing. Accordingly, examinationin-chief of the Witness was deferred to 13.11.2006. Shri Ramesh Kumar, appeared as a witness (WW/2) on 13.11.2006 and in examination-in- chief, he had deposed as follows:-
"xxxxx I have not brought the muster rolls and muster roll Issue register from 1/99 to 12/99. These muster rolls are not available. Therefore, I have not produced this record in future."
As per contention of the Worklady, her services were terminated on 31.12.1999. Thus, 12 preceding months, which were relevant for proving as to whether the Worklady had worked with the Management for more than 240 days in the 12 preceding months was from January, 1999, to December, 1999. These records were not produced by Shri Ramesh Kumar (WW-2), Clerk, o/o Divisional Forest Officer (Territorial), Bhiwani, who had been summoned by the Court on an application moved by the Worklady to produce the records. Not only did he state that he has not brought the muster rolls and muster roll issue register from January, 1999, to December, 1999, as the same were not available, rather he had further stated that he would not be able to produce the same in future as well. In such a situation where, although, on an application moved by the Workman/Worklady, a witness is called for production of records and who deposes on the basis of available records, it cannot be said that he would be deposing as an interested witness as far as the Workman/Worklady is concerned because he is not making a statement before the Labour Court on the basis of his personal knowledge, but on the basis of the records. When he states something on the availability or non availability of the records, there is no reason or justification why the Labour Court would not take it to be correct, when the same has not been contested or rebutted by the Management. Adverse Inference was not drawn because witness deposed for the Worklady or for the Management, but it was because of non production of the records, which has further been stated to be not available and cannot be produced in future. In these circumstances, the contention of counsel for the Management that adverse inference can only be drawn in case the Management Witness fails to produce the records, cannot be accepted and is hereby rejected.
6. The records were summoned as the onus was on the Worklady to prove her assertion that she had completed 240 days in service in the 12 preceding months from the date of her termination and it would be her responsibility to prove the same, therefore, she made an application for production of the records and if the official, who is summoned to produce the records in possession of the Management, does not produce the same and further states that it is not available and will not be available in future as well, adverse inference which is drawn by the Labour Court cannot be said to be without any basis or not in accordance with law. The adverse inference drawn by the 8 of 10 ::: Downloaded on - 24-07-2024 02:13:16 ::: Neutral Citation No:=2024:PHHC:086489 CWP-2668-2017 -9- Labour Court in the given facts and circumstances of the case is fully justified and does not call for any interference by this Court." Similar is the ratio of judgement rendered in the case of Ambika Prashad v. Punjab Urban Planning and Development Authority, Chandigarh, 2001(3) S.C.T. 1132 : Law Finder Doc Id # 11129 , and the observations made in paragraphs Nos. 3 & 4 thereof, reads as under:-
"3. The payment and attendance registers, and logbook could have thrown light on the issue in dispute as to whether the workman had worked for the period as alleged. It is not open for the person having best evidence, to dodge the order of the Court and then to say that the burden of proof is on the other side. In case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others, AIR 1968 Supreme Court 1413, it has been observed by the Supreme Court that a person in possession of the best evidence has to produce the same and if not produced adverse inference can be drawn against the said party irrespective of the fact that onus of proof does not lie on him and that he was not called upon to produce the same. This principle directly applies to the facts of the present case and adverse inference can be drawn against the respondent. Therefore, there is no reason as to why it should not be hold that the petitioners have completed 240 days of services as alleged by them.
4. In these cases, apart from not producing the best evidence, themselves, the respondents have chosen to defy the orders of the Labour Court also when the Labour Court asked the evidence to be produced. Therefore, these cases are on much better footing than that of Gopal Krishnaji Ketkar case (supra)."
13. If the ratio of the said judgements is applied to the facts and circumstances of the present case, conduct of non production of the summoned record i.e. muster roll and bonus record for the period 2007 to 2009, on the application of the petitioner, is in conformity and also at an equal pedestal.
14. In view of the reasons recorded here-above, this Court finds that the findings recorded by learned Tribunal, are not satisfying the parameters required for its conclusion, and therefore, by quashing the impugned award dated 25.07.2016 (P-9), present writ petition is allowed and the final conclusion of the reference is answered in favour of the petitioner -
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Neutral Citation No:=2024:PHHC:086489
CWP-2668-2017 - 10 -
workman, by observing that he is entitled for reinstatement with continuity in service.
Regarding back-wages, no specific evidence of working of the employee has been brought on record, still this Court assumes that the petitioner - workman being a skilled worker was not sitting idle, and therefore, might be earning something during this period. Thus, he is held entitled for 50% back-wages.
Finally, it is ordered that petitioner - workman be reinstated from the date of his termination with its continuity in service along with 50% back-wages. Any other claim, if raised in the demand notice-cum- claim statement, let the same be also awarded to the petitioner - workman.
Writ petition is disposed of accordingly. However, there shall be no order as to costs.
(SANJAY VASHISTH) JUDGE July 10, 2024 J.Ram Whether speaking/reasoned: Yes/No Whether Reportable: Yes/No 10 of 10 ::: Downloaded on - 24-07-2024 02:13:16 :::