Divisional Forest Officer vs Chameli and Others

Ranjit Singh, J.—The Divisional Forest Officer, Bhiwani, has filed this writ petition to impugn the award dated September 25, 2008 passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak. Through the impugned award, the Labour Court concerned has decided the reference made to it in regard to termination of service of late Jai Narain in his favour by setting-aside the order of termination. Since the concerned workman had expired, his wife, who is now impleaded as a Respondent, was allowed 50% back wages from the date of demand i.e. January 8, 2002 till the death of the deceased workman on November 17, 2006. Aggrieved against this, the State has filed the present writ petition.

The deceased workman was engaged as Baildar-cum-Mali by the Petitioner-management on July 15, 1991. He continuously worked till March 31, 2000. As per the claim made in the demand notice, the deceased workman was not allowed to join duties w.e.f. April 1, 2000. Alleging that the services of the deceased workman were terminated without notice and payment of any retrenchment compensation, the deceased workman had raised an industrial dispute. The dispute was accordingly referred to the Labour Court with the following terms of reference:

Whether termination of services of Sh. Jai Narain is justified and if not to what relief he is entitled to? On the basis of pleadings made before the Labour Court, following issues were framed:

When this termination of services of workman is justified and if not, to what relief he is entitled to?

Whether this Deptt., does not fall within the definition of Industry.

Relief.

Both the parties led evidence. The main issue requiring consideration was whether the late workman had completed continuous service of 240 days in the year preceding his alleged termination or not? The management had examined Sh. Kamal Singh, Range Officer, as M.W.1, who produced and proved muster rolls, Exhibit M-2 to M-29. The witness, however, admitted that he had not brought the muster rolls of June 1994, August 1994, September 1994, October 1994, November 1994, December 1994, January 1995 and February 1995, as these were statedly summoned in some other cases. The witness further stated that he would not be able to produce the aforesaid muster rolls in future also. Muster Roll Exhibit M1 showed that late workman had worked upto the year 1999 but had not completed 240 days in the proceeding year of his termination. The late workman, however, had appeared as his own witness and deposed that he had continuously worked from July 15, 1991 to March 31, 2000, when his services were illegally discontinued, amounting to his termination. He also examined Dharam Pal, Forester, (WW2), who stated that the workman had worked for 141 days in the year 1992, 271 days in 1993, 253 days in the year 1994 and 170 days in the year 1995. As per the witness, muster rolls for the years 1977-98 and 1999 were not available as they had been produced in some other Courts. As per the witness, he would not be able to produce record in future as well.

While appreciating the above noted evidence, the Labour Court came to take a view that the management had not produced the complete summoned record regarding the employment of the deceased workman. The Court accordingly drew adverse inference against the Petitioner-management for not producing the summoned record. As a result thereof, the Labour Court held that the deceased workman had worked continuously for more than 240 days and, thus, his termination was in violation of the provisions of Section 25-F of the Industrial Disputes Act. The order of his termination was accordingly set-aside and the direction was issued for payment of 50% of back wages, as already noticed.

Mr. D.S. Nalwa would refer to the muster rolls now placed on record to urge that even if adverse inference was to be drawn against the management for not producing the complete record, still it can not be said that workman had completed 240 days of service in the year preceding the date of his termination. The submission as made by learned Counsel for the Petitioner can not be accepted, being without merits.

The consequence of the adverse inference drawn perhaps is not being properly appreciated by the counsel while pursuing this line of submission. As per Section 114 of the Indian Evidence Act, the Court may presume the existence of any fact, which it thinks likely to have happen, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. By way of illustration (g) under this Section, it is provided that the Court may presume that the evidence which could be and is not produced, would if produced, be unfavorable to the person who withholds it. The evidence which was required to be produced was the muster rolls. Once the complete muster rolls were not produced, the Court was fully justified to draw an adverse inference that the complete muster rolls, if produced, were unfavorable to the management. The resultant effect of this would be that it could be legally presumed that the deceased workman had worked for more than 240 days in the year preceding to his termination and the muster rolls were not produced as these would have been unfavorable to the management, if produced. Once this legal presumption was open to be drawn, then the State counsel would not be justified in now making submission that if the entire muster rolls are produced, these would not show that the deceased workman had worked for 240 days in the year preceding the date of termination. In the absence of evidence to the contrary, the evidence given by the workman that he had continuously worked from July 15, 1991 upto March 31, 2000 could not have been ignored. There is, thus, no cause or justification made out to interfere in the view taken by the Labour Court while answering the reference and setting-aside the order of termination.

It has also to be borne in mind that the workman has died fighting this reference and the Court has only allowed 50% of the back wages to his wife left behind alone to fend for herself in life.

There is no merit in the writ petition and the same is accordingly dismissed.