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2004 Supreme(Raj) 827
Supreme Court
Honble N. SANTOSH HEGDE & S. B. SINHA, JJ.
Municipal Corporation, Faridabad - Appellant
Versus
Siri Niwas - Respondents
Civil Appeal No. 1851 of 2002 (with C.A. No. 4563 of 2002)
Decided On : September 06, 2004
Praveen Kumar Rai, Ms. Kavita Wadia, J.P. Dhanda, D.K. Thakur, B.K. Jha, Debasis Misra, Advocates
Headnote:Evidence Act, 1872, Sec. 114 read with Industrial Disputes Act, 1947, Sec. 25(F) and 25-B – Applicability of provisions of Evidence Act in case of Industrial Disputes – Presumption as to adverse inference – Order of retrenchment of a workman would not be effective unless the conditions precedent as stipulated u/Sec. 25(F) are satisfied – Non production of muster rolls – Held – High Court committed a manifest error in setting aside the award of the Tribunal only on the basis of adverse inference drawn against the employer (Appellant) for not producing the muster rolls – Provisions of Evidence Act perse are not applicable in an industrial adjudication, the general principles of it are, however applicable. (Paras 13 to 15)
A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, in not obligatory because notwithstanding the intentional non- production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the Respondent. (Para 15)
(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 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.
(9). 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."
(10). 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.
(11). Mr. Praveen Kumar Rai, the learned counsel ap
