Tarsem Kumar vs Presiding Officer, Labour Court Ambala and others

Rajiv Narain Raina, J.

C.M. No. 5053 of 2011

For the reasons mentioned in the application, which is supported by an affidavit, delay of 7 days in re-filing the appeal is condoned. C.M. stands

disposed of.

C.M. No. 5054 of 2011

C.M. is allowed subject to all just exceptions.

C.M. No. 5055 of 2011

For the reasons mentioned in the application,which is supported by an affidavit, delay of 462 days in filing the appeal is condoned. C.M. stands

disposed of.

This Letters Patent Appeal arises out of the order passed by the learned Single Judge dated 15.3.2011, upholding the award of the Labour

Court, Ambala dated 21.8.2008. The Labour Court on a reference u/s 10(1)(C) of the Industrial Disputes Act in Reference No 187 of 2003 has

negatived the claim of the appellant-workman for reinstatement to service with the respondent. The workman had claimed in his statement of claim

filed before the Labour Court that he had served the respondent-department as a Tubewell Operator from January 2000 on a monthly salary of `

2200/- and that he had worked as such up to June 2004 when his services were brought to an end by an alleged verbal order.

The respondent-department in its reply before the Labour Court in the industrial reference emphatically denied the averment of the appellant and

took the categorical stand that the appellant had as a matter of fact never been appointed to service and therefore, the question of termination of

his services did not arise. Accordingly, the management maintained that the question of completion of 240 days of service ex facie did not arise in

the present proceedings therefore no violation of Section 25F and G of the Act could be complained of.

The evidence was led by both the sides and upon consideration of such evidence, the Labour Court, Ambala turned down the prayer of the

appellant for reinstatement and declined the reference inasmuch as it found that no evidence was brought on record by the workman upon whom

the burden rested to prove that he had worked for the period claimed. The appellant-workman in his support produced two witnesses.

Unfortunately, both these witnesses in their cross-examination could not establish on record facts asserted by the appellant that he had in fact

actually worked for the period claimed.

WW2 Gurdial Singh stated that he had never worked with the petitioner nor did he remember the date when the petitioner was appointed or

removed by the respondent-department. He also did not remember when the petitioner was appointed. The statement of WW3 Tej Ram was in

the same tone and tenor and could not be read as coming to the rescue of the appellant. Both the statements have been found to be vague and of

no probative value to establish service qualifying for industrial rights. The Labour Court by its award answered the reference against the workman.

Aggrieved by the award of the Labour Court, the appellant filed Civil Writ Petition No.17238 of 2009 to challenge the award.

We have heard learned counsel Sh Rajiv Kumar Saini for the appellant at considerable length and dwelt on the records of the case as

presented. He argued that there had been mis-appreciation and non-consideration of documents Mark ""A"" to Mark ""I"" as evidence which marked

documents were allegedly signed by some Foreman being log books of the Tubewell and some documents sought to be placed on record through

the cross-examination of MW-1/M.R. Gandhi, SDO. Learned counsel when asked pointedly was unable to support as evidence a marked

document, not duly exhibited on record and that too being photocopies of the alleged originals. In the absence of primary evidence, it is not

possible to accept secondary evidence without proof of loss of primary material. Even though the evidence Act may not apply strictly to

proceedings before the Labour Court and Industrial Tribunals, yet its fundamental and cardinal underlying principles cannot be brushed aside.

Although, it is not required by an Appellate Bench to call for further evidence in support of a claim of the kind made in this matter, we however,

went ahead to suggest to the learned counsel that if there was any other direct material or evidence upon which his claim could be sustained he was

still free to show it. He was unable to answer as there was none.

In the present case, burden of proof was on the workman to substantiate his case. When service for the period claimed remains unproved the

question of having put in 240 days in the preceding 12 months or not would not arise. The hapless appellant remains denuded of any industrial

rights. The appellant has miserably failed to discharge the burden either to the satisfaction of the Labour Court or at the regular hearing before the

learned Single Judge or in the present appeal. In our view the judgment and order passed by the learned Single Judge suffers from no error. The

workman appellant has failed to discharge onus and prove that he served the respondent Government department from 2000 to 2004. We uphold

the judgment and order of the Learned Single Judge and maintain the award passed by the Labour Court, Ambala.

Consequently, the appeal is dismissed at the threshold with no order as to costs.