Hon’ble Amitava Lala, J.—This is an appeal of the defendants, appellants herein, from the judgment and order dated 29th March, 2008 passed by the concerned Commissioner, Moradabad, appointed under the Workmen’s Compensation Act, 1923 (hereinafter called as the ‘Commissioner’) awarding a sum of Rs. 1,87,182/- on account of injury sustained by the claimant/respondent herein, alongwith penalty of Rs. 93,000/-. Learned Counsel appearing for both the contesting parties agreed about hearing of the appeal on the informal papers at the stage of admission, accordingly the Court has proceeded.

2. The question arose before the Commissioner about master-servant relationship between the appellants-employer and the respondent-employee, who became injured by the cause of accident. The claimant asserted that he was under the employment of the appellants for last ten years, which the appellants have refused. In such circumstances, the Commissioner called upon the appellants to produce attendance registers and salary registers of the years 2005 and 2006 alongwith those of the relevant year, but the appellants avoided the same and produced the document only for the relevant period to establish that on the date and time of the accident the injured/claimant was not in the employment. The Commissioner disbelieved the statement of the appellants based on the solitary document and discarded their conduct for non-production of the documents, and drew an adverse inference.

3. By preferring this appeal, the appellants contended that onus to prove employment is primarily lying with the employee not with the employer. Therefore, they are not supposed to produce the documents, as such their refusal to produce the documents is appropriate and no adverse inference can be drawn by the Commissioner.

4. Factually, the claimant was working as a mechanic of a machine, which was suddenly stopped from functioning. The claimant became curious to know the cause of non-functioning in order to repair it, when the machine suddenly started functioning but he got no opportunity to escape and met with the accident, which caused loss of his four fingers. The Commissioner determined the disability and loss of earning on the basis of materials available before him and arrived at the aforesaid amount of compensation. However, the quantum of compensation is not the question hereunder but the master-servant relationship.

5. Learned Counsel appearing for the appellants relied upon various judgments in this regard. Relying upon AIR 2006 SC 110, Surendranagar District Panchayat v. Dahyabhai Amarsinh he contended that it is necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. Since no proof of receipt of salary or wages or any record or order in this regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted, it is improbable that the workman, who claimed to have worked with the employer for such a long period, would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Ultimately, it has been held by the Supreme Court that the Courts below have wrongly drawn an adverse inference for non-production of the records for ten years by the employer. He has also relied upon AIR 2004 SC 1639, Workmen of Nilgiri Co-op. Mkt. Society Ltd. v. State of Tamil Nadu and others, where interpretation of burden of proof is given, as follows:

“47. It is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.

48. In N.C. John v. Secretary, Thodupuzha Taluk Shop and Commercial Establishment Workers’ Union and others, 1973 Lab IC 398, the Kerala High Court held :

“The burden of proof being on the workmen to establish the e