Hans Raj vs The Municipal Council, Sanaur

S.S. Sudhalkar, J.—By this writ petition, the workman is challenging the award of the Labour Court dated 3.8.1999 (copy annexure P/4) vide which the Labour Court declined the reference against the petitioner.

The case of the petitioner is that he was appointed as Plumber on 1.6.1992 and worked upon 31.3.1995 with the respondent and his service was terminated on 1.4.1995 without serving any notice or holding any enquiry or payment of any retrenchment compensation.

The respondent has taken a plea that the petitioner has not completed 240 days continuous service in a calendar year. It is contended that the petitioner was removed from the service and thereafter a resolution was passed to engage him again. The same was not approved by Deputy Director, Local Self Government. The terms and conditions of daily wages Beldars were acceptable to him and he had worked on different posts different works. It is further contended by the respondent that the petitioner was removed from service in July, 1993 and thereafter a resolution was passed to engage him but the same was not approved and that he was not engaged after 30.7.1903.

I have heard learned Counsel for the parties.

The Labour Court has considered the deposition of the petitioner who appeared as WW3. He has admitted that he was engaged on daily wage basis. The Labour Court has considered that he was not engaged on the basis of his qualifications. Counsel for the petitioner has drawn my attention to the deposition of MW1 Mr. Vijay Kuinar, copy of which has been produced at Amiexure P/3. In the cross-examination this witness has stated that it is correct that if the period of both the service is calculated, it comes to 240 days even with breaks. He has also stated that the petitioner was appointed on daily wages as Beldar against different posts on different sanctions. Therefore, it cannot be said thai the petitioner had not completed 240 days of service when there is specific admission by the witness of the respondent.

The question which now comes for my consideration is whether the petitioner worked upto 16.7.1995 or only upto 31.7.1993. The petitioner has come with a specific case that he had worked upto 16.7.1995. The Labour Court has observed that there is no motive established on the part of the management to withhold any documentary evidence against the workman in this case. The question is not of any motive. Motive may be there or may not be there but an inference has to be drawn regarding the existence of certain things in certain cases. The management obviously has not produced any document upto 16.7.1995 to show that the petitioner was not working after july, 1993. When this is the position, as decided in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, , a duty was cast upon the respondent-management to produce the evidence which was in its possession even if the burden of proof was not upon them and they were not called upon to produce the same.

One more evidence also can be considered. There is on record copy of the order in the writ petition No. 1327 of 1994 filed by the petitioner. The order is dated 25.3.1995. In that petition, the prayer was for direction for regularisation. In the order, it is. mentioned that the case of the petitioner is that he is working as plumber with the respondent. It is further mentioned that the stand of the respondent is that he does not fulfil the requisite conditions for regularisation. The petitioner had filed that petition because there was an advertisement given for the posts of plumber. That advertisement was withdrawn by the respondent. A Division Bench of this court disposed of that writ with the direction that the petitioner may make a representation for regularisation and if any such representation is made, the same shall be considered expedi-tiously. This shows that the respondent had not taken a stand that the petitioner''s service had already stood terminated in July, 1993.

Considering all these factors, I find that the award of the Labour Court cannot be upheld. Regarding back wages, learned Counsel for the petitioner has conceded that only 50 per cent back wage may be awarded. Nothing is shown from which I can come to the conclusion that the petitioner was gainfully employed.

As a result, this petition is allowed. The award of the Labour Court is set aside and the petitioner is ordered to be reinstated with continuity of service, and 50 per cent back wages from the date of demand notice.

Petition allowed.