Gurbachan Singh vs M/s. Jagyasu Re-Rolling Mills

S.S. Sudhalkar, J.—This writ petition is filed by the workman whose claim for reinstatement and back wages has been rejected by the Labour Court vide its award dated 20.4.1987 (Annexure P/3).

The case of the petitioner is that he joined the services of the respondent and his services were termi- nated on 26.7.1983 after he had worked for one and a half years. He issued a demand notice which is dated 18.8.1983. It is in the record of the Labour Court. Respondent No. 1 has taken up a plea that the petitioner joined service on 22.11.1982 and left on 26.7.1983 as he stopped coming and absented himself.

The counsel for the petitioner argued that the petitioner has completed 240 days of service. Counsel for the respondent states that he did not work for all the days and that he had served from 22.11.1982 only, he cannot be said to have completed 240 days of service.

The workman of course had not stated the date of joining service either in the demand notice or in the Claim statement. However, in the claim statement, he has mentioned that he has rendered service for more than 1-1/2 years and he was terminated on 26.7.1983. The last day of his working with the respondent is not in dispute.

Counsel for the petitioner has stated that oral evidence has been led by the petitioner. Counsel for the respondent has relied on the oral evidence of respondent''s witnesses. The Time Office Incharge, Santokh Kumar Sharma has stated in his deposition that the petitioner joined service on 22.11.1982. Shri P.O. Shukla, Time Keeper in his deposition, which is an R/1, has stated that the respondent joined service on 22.11.82.

The petitioner has stated in his deposition that he joined on 1.1.1982. The dispute is, therefore, for the period from 1.1.1982 to 22.11.1982. Regarding this, the best documentary evidence was with the respondents. Though the petitioner has not stated the date of joining in his Claim statement or demand notice, it is specifically stated in the claim statement that he has worked for 1-1/2 years. When this is the position, the duty was cast on the person having the best evidence i.e. the respondent to produce the same. The respondent-employer could have produced the muster rolls and other documents to show that before 22.11.82, the petitioner was not in their employment. This is not done. Therefore, in view of the principle laid down in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, adverse inference has to be drawn against respondent No. 1. Therefore, I do not find any hesitation in holding that the petitioner had worked for 1-1/2 years before the last date of his service i,e. 26.7.1983.

The next question is regarding abandonment of service by the petitioner. The respondents have taken up a plea in the written statement filed before the Labour Court that the petitioner left the service on 26.7.1983 by absenting himself from duty. The respondents have tried to corroborate their say by the notices, alleged to have been issued to he petitioner. Copies of these notices are at Ex. MW-1/1 and MW-1/2 dated 27.7.83 and 3.8.83. One receipt from Post office for registered cover has been produced along-with MW-1/1 and alongwith MW-1/2 the postal cover which has been received back, has been produced. The witness Santokh Kumar has stated in the cross-examination that the A.D. receipt is not received back.

Counsel for the respondent has tried to argue that though A.D. receipt is not received back, the earlier notice can be deemed to hav" been served. This argument cannot be accepted. If the notice was sent with Registered post A.D. and the A.D. receipt is not received back, presumption of its having been served cannot arise. On the contrary, presumption can be otherwise. Regarding the other notice, it is not the say of the petitioner''s witness that the envelope which has been received undelivered was refused by the petitioner. It is, therefore, clear that the respondent has not been able to show the service of these notices on the petitioner. Moreover, the date of demand notice is also material in this case. The demand notice is dated 18.8.1983, i.e. given in the very next month or to say within a period of one month from 26.7.83 which is alleged to be the date of termination or the last day of petitioner''s work with the respondent. This circumstance goes to show that the petitioner has not abandoned the service.

Looking to the fact that the workman had rendered a short period of service before his alleged termination, the back wages which can be allowed to the workman in this case, according to my opinion, should be 50% from the date of demand notice.

As a result, this writ petition is allowed.

Respondent No. 1 is directed to re-instate the workman with 50% back wages from the date of demand notice.

Writ petition allowed.