M/s Fas Pack Industries, 18/1, Mathura Road, Faridabad v. Industrial Tribinal-cum-Labour Court & Anr.

CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Ms. Abha Rathore, Advocate, for the petitioner. Mr. Suvneet Sharma, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present petition is for quashing of the award dated 30.08.1996 (Annexure P-10) passed by the Industrial Tribunal-cum- Labour Court, Faridabad, whereby the reference has been answered in favour of the workman holding him entitled to reinstatement in service with CWP No.4984 of 1997 2 full back wages and all other benefits including the benefit of continuity of service. Counsel for the petitioner contends that the onus to prove that the service of the workman-respondent No. 2 was terminated by the Management not in accordance with law, was on the workman. Nothing has been produced on record which would justify the contention, as raised by the workman in his demand notice. The Management has produced the complete records pertaining to the period, during which the workman had alleged that he had worked with the petitioner-Management i.e. from the year 1985 till 1990. Not only the attendance register but also the E.S.I. and the P.F. records were produced but in none of the documents, the name of the workman-respondent No. 2 Rajender Verma existed. The compete records having been produced by the Management, the workman merely making a bald statement before the Labour Court would not weigh over the documentary evidence produced by the Management. That apart, the document, which has been relied upon by the Labour Court to come to a conclusion that Rajender Verma-respondent No. 2 was an employee of the petitioner, is not an admitted document. This document was a leave application allegedly submitted by the workman which pertained to the period 26.06.1987 to 20.07.1987. The noting thereon was that he was granted leave for 20 days. The signatures on the document have been denied by the Management witness as the signatures of Surinder Mishra do not tally with the records available with the Management. Ex. M-1 is the advance given by the Management to the workman which is dated

10.07.1989 and Ex. W-1 is the document which is also admitted by the Management which shows the return of the advance given to the workman which is dated 11.07.1989. She further submits that the signatures on CWP No.4984 of 1997 3 these documents are admitted by the workman in his cross-examination which goes to show that the workman had taken an advance on

10.07.1989 and the same was returned by him on the very next day i.e.

11.07.1989. On this basis, she submits that none of the documents, which have been relied upon by the Labour Court to hold that the workman- respondent No. 2 was an employee of the Management, can be accepted which would justify the findings given by the Labour Court. That apart, she submits that the onus having not been discharged by the workman that termination of the services of the workman was not in accordance with the Industrial Disputes Act, the award, on this point alone, deserves to be set aside. On the other hand, counsel for respondent No. 2-workman submits that the workman was not in a position to produce all the documents except the documents, which he has produced before the Labour Court. One was a receipt Ex. W-1, which has been admitted by the Management and the other was the leave application, which contained the noting of Sh. Surinder Mishra granting him leave for 20 days w.e.f.

26.06.1987 to 20.07.1987. He submits that once it has been, on the basis of these documentary evidence supported by the statement of the workman, proved that the workman was an employee of the Management, the Management having the records with it has manipulated the records by not mentioning the name of the workman and, therefore, the award given by the Labour Court is fully justified and in accordance with law. I have heard the counsel for the parties and have gone through the records of the case. It goes without saying that the primary onus is on the workman to prove the assertion, as has been made by him in his demand notice. It CWP No.4984 of 1997 4 is understandable that the workman may not have the documents with him because they are being maintained and are in possession of the Management. What is expected of a workman is for requesting the Labour Court to direct the production of the records but in case, the Management itself produces the complete records, the same can be taken into consideration for coming to a conclusion as to whether the provisions of the Industrial Disputes Act have been complied with or not while terminating the services of the workman.

In the present case, it is an admitted position as is apparent from the statement of Ravinder Chawla MW-1 (Annexure P-8) that the Management had produced the records of the Company from the year 1985 to 1990 as also the E.S.I. and P.F. records. The name of the workman-respondent No. 2 was neither mentioned in the attendance register nor any other documents pertaining to E.S.I. and P.F. indicated that respondent No. 2-workman was an employee of the Management. Ex. M-1, which is the advance given by the Management to the workman which is dated 10.07.1989 and Ex. W-1 is the document which is also admitted by the Management which shows the return of the advance given to the workman which is dated 11.07.1989. These two documents do not suggest that the workman was indeed an employee of the Management as the same have been explained out by the Management by stating that it was an advance given to the workman for paying all the amount which the workman wanted to give to his earlier employer to join the Company which the workman returned on his being given a jump in the wages by his earlier employer.

The leave application, which is one of the documents, which has been made the basis for returning the finding that respondent No. 2- workman was employed with the Management-petitioner, again does not CWP No.4984 of 1997 5 hold the field for the reason that the signatures, which have been put on the document by Sh. Surinder Mishra, have been denied by the Management' witness on the basis that the same do not tally with the records of the Company which were available before the Court on the said date. None of the documents, as have been relied upon by the Labour Court for holding that the workman was an employee of the Management passed the test of scrutiny of they being genuine and in favour of the workman, the findings as recorded by the Labour Court cannot be sustained. All documents, which have been produced by the Management which were relevant for the period for which the claim has been made by the workman, do not indicate that the workman was employed with the Management.