IMPORTANT POINT
Burden is upon workman to show that he had completed 240 days in work in preceding year of his alleged retrenchment.

JUDGMENT

S.B. Sinha, J.-Both these appeals involving similar questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.

2. The factual matrix of the matter, however, is being noticed from Civil Appeal No. 1851 of 2002.

3. The Appellant is in appeal before us being aggrieved by and dissatisfied with the judgment and order dated 3.5.2001 passed by the learned Single Judge of the Punjab and Haryana High Court in CWP No. 624 of 2000 whereby and whereunder the writ petition filed by the respondent herein, questioning an Award dated 13.8.1999 passed by the Industrial Tribunal, Faridabad, was allowed.

4. The basic fact of the matter is not much in dispute. The respondent herein allegedly worked with the Appellant herein from 5.8.1994 to 31.12.1994 as Tubewell Operator. He allegedly further worked from 1.1.1995 to 16.5.1995 at Sector 37, Old Zone II. His services were terminated on or about 17.5.1995 whereupon an industrial dispute was raised.

5. The Government of Haryana made a reference before the Presiding Officer, Industrial Tribunal-cum-Labour Court I, vide Haryana Government Endst. No. 32410-15 dated 7.10.1995, in exercise of the power conferred by Clause (c) of Sub-Section (1) of Section 10 of the Industrial Disputes Act, 1947 in the following terms:

"Whether there is justification in the termination of the services of Sh. Shri Niwas and if not, to what relief he is entitled to."

6. The case of the respondent before the Tribunal was that as he had completed working for 240 days in a year, the purported order of the retrenchment is illegal as conditions precedent therefor as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with. The contention of the Appellant herein, on the other hand, was that the said respondent had worked only for 136 days during the preceding twelve months on daily wages and had no lien over the said job.

7. The Tribunal upon considering all the materials placed on records by the parties to the dispute came to the conclusion that the total number of working days of the workman was 184 days and, thus, he having not completed 240 days of working in a year was not entitled to any relief. The learned Tribunal noticed that neither the Management nor the workman cared to produce the muster rolls with effect from August, 1994 which was their joint liability. It was further observed that the workman even did not summon the same although the Management had not produced the muster rolls.

8. The respondent being aggrieved by and dissatisfied with the said Award filed a writ petition before the Punjab and Haryana High Court which was marked at CWP No. 624 of 2000. Before the High Court the respondent produced certain documents which do not appear to have been taken on records.

The High Court opined:

"...Be that as it may, respondent in their written statement has accepted the fact that the petitioner was kept on 1.1.1995 and he worked upto 16.9.1995. This span of working period as mentioned by the respondent is of course more than 240 days. The question is whether the petitioner has actually worked for this period or not."

9. The High Court, however, was of the view that as the Appellant herein did not produce the relevant documents before the Industrial Tribunal, an adverse inference should be drawn against it, as it was in possession of the best evidence and, thus, it was not necessary for the first respondent herein to call upon the Appellant to do so. The High Court furthermore was of the view that the burden of proof may not be upon the Appellant but in case of non-production of the documents, an adverse inference could be drawn against him. Only on that basis the writ petition was allowed holding that it could be presumed that the respondent had worked for 240 days. Consequently the respondent was directed to be reinstated in service with 75% back wages from the date of demand.

10. Mr. Praveen Kumar Rai, the learned counsel appearing on behalf