Savitri v. Presiding Officer Labour Court & Ors.

CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Suresh Ahlawat, Advocate, for the petitioner. Mr.D.S.Nalwa, Addl.A.G., Haryana, for respondents No.2 to 4. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside the Award dated 20.4.2009 (Annexure P-3) passed by the Industrial Tribunal-cum- Labour Court, Hisar whereby it has rejected the claim of the petitioner- workman of reinstatement in service with all consequential benefits and in lieu of reinstatement, has granted only compensation amounting to Rs.70,000/-. Counsel for the petitioner contends that the petitioner would restrict his grievance in regard to inadequate compensation which has been granted to the petitioner. He contends while referring to para 20 of the Award that the work-lady had worked from 15.2.1988 to 6.9.2004 i.e. more than 15 years. He contends that grant of Rs.70,000/- as compensation for more than 15 years' service is inadequate which needs to be enhanced in the C.W.P.No.15853 of 2009 -2- given facts and circumstances of the case. Accordingly, he prays that in lieu of reinstatement, the amount of compensation be increased from the one granted by the Labour Court. On the other hand, counsel for the respondent vehemently argues while referring to para 10 of the Award that the work-lady has failed to prove before the Labour Court that she has completed 240 days in service in the 12 preceding months from the date of her termination. He contends that the Labour Court has not given such a finding but still has proceeded to grant compensation to the work-lady. Even while referring to para 20 of the Award, he contends that the Labour Court has not said that the work- lady had continuously worked from 15.2.1988 to 6.9.2004 and, therefore, he states that no interference by this Court is called for by this Court in the Award. I have heard counsel for the parties and have gone through the records of the case. The onus to prove that the work-lady had completed 240 days in service in the 12 preceding months from the date of her termination is on the work-lady herself and in case the work-lady had taken all relevant steps essential to prove that fact and if the Management failed to produce the records as it is the depository of the record especially in case of daily wage employee, the Labour Court ought to have given the benefit to the work- lady. It cannot be disputed that a daily wage employee is neither given an order of appointment nor an order of termination. Such an employee, therefore, is fully dependent upon the Management for maintaining the records with regard to the days and the period of work she has put in service with the Management. In the present case, after the Management had been C.W.P.No.15853 of 2009 -3- proceeded against ex parte, the petitioner moved an application to summon the records from the Management. Accordingly, Sh.Sahi Ram, Forester, office of the DFO, Bhiwani, appeared before the Labour Court as WW-3. He produced the original muster rolls, issue Register and the muster rolls upto 1998. The relevant record, as far as the claim of the petitioner was concerned, was of the year 2004 since it was alleged that her services were terminated on 7.9.2004. The records pertaining to the calendar year 2004 was not submitted by Sh.Sahi Ram, Forester, on the ground that the same was not available. A poor work-lady by mere statement of the official, who was required to produce the records as summoned by the Court, cannot be put to disadvantage when no justifiable reason has been given by the witness for non-production of such record. Mere statement on the part of the official witness that the said record is not available, should not go against the work-lady and no conclusion can be drawn that it was the fault of the work-lady for non-production of the records. Under this situation, the benefit has to be given to the work-lady who has acted diligently and with all care and caution for summoning the relevant record to prove her claim that she had completed 240 days in service in the 12 preceding months from the date of her termination. In the present case, due to non-production of records by the Management witness who is an official and has been specifically summoned to produce the records by the Court on an application moved by the work-lady, it cannot be said that the work-lady has not discharged the onus placed upon her. All efforts have been made by the work-lady to discharge her onus and having done so, the Labour Court, on account of non-production of records by the Management, ought to have given a finding that the work-lady had completed 240 days of service in C.W.P.No.15853 of 2009 -4- the 12 preceding months from the date of her termination. The conclusion, thus, is inevitable that the work-lady had completed 240 days in service in the 12 preceding months from the date of her termination i.e. 7.9.2004 because of non-production of the records by the Management despite the same having been summoned by the Court on an application moved by the work-lady. A specific finding has been given by the Labour Court that the work-lady had worked from 15.2.1988 to 6.9.2004 i.e. more than 15 years. Keeping in view the findings as have been recorded by the Labour Court, the grant of compensation for the period the work-lady had put in with the Management, is inadequate and, therefore, deserves to be enhanced. Accordingly, keeping in view the length of service rendered by the petitioner-work-lady with the respondent-Management, and also keeping in view the fact that she had to approach the Court for the claim on account of termination of her services without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 as there was no notice given nor pay in lieu of notice nor payment of any retrenchment compensation, the amount of compensation is enhanced to Rs.1,25,000/-. The present writ petition is allowed and the impugned Award dated 20.4.2009 is modified to the extent that the petitioner-work-lady is held entitled to compensation of Rs.1,25,000/-. The Management is directed to release the amount of compensation as assessed by this Court within a period of three months from the date of receipt of certified copy of this order. March 23, 2010 poonam ( AUGUSTINE GEORGE MASIH ) JUDGE