9911796707
TMI Blog2004 (9) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arked 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." 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective unless the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment : (i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof; (ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months. For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25-B of the Act. In terms of sub-Section (2) of Section 25-B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, is 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the documents might have favoured the respondent's case." Yet again in Smt. Indira Nehru Gandhi vs Shri Raj Narain (AIR 1975 SC 2299), law has been laid down by this Court in the following terms : "The third and the last and a subsidiary submission on behalf of the election petitioner, on election expenses was that Shri Dal Bahadur Singh not having been produced by the original respondent, some sort of presumption arises against the original respondent. I do not think that it is possible to shift a burden of the petitioner on to the original respondent whose case never was that Shri Dal Bahadur Singh spent any money on her behalf. The case of M. Chyenna Reddy vs Ramchandra Rao, (1972) 40 Ele LR 390 at p. 415 (SC) was relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed copies of some muster rolls before this court. If he was in possession of the said documents, it betrays one's imagination as to why the same had not been produced before the Tribunal. As indicated hereinbefore, he filed some documents before the High Court but the same were not accepted. The High Court, therefore, proceeded to pass the impugned judgment only on the basis of the materials relied on by the parties before the Tribunal. The High Court, in our opinion, committed a manifest error in setting aside the award of the Tribunal only on the basis of adverse inference drawn against the Appellant for not producing the muster rolls. For the foregoing reasons the impugned judgments are not sustainable in law and they are set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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