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2007 DIGILAW 2087 (RAJ)

M. D. S. University, Ajmer v. Kailash Chand

2007-10-29

J.M.PANCHAL, MOHAMMAD RAFIQ

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JUDGMENT 1. - The instant appeal is directed against judgment dated May 8, 2007 rendered by the learned single Judge in SBC WP No. 7357/2006 by which the prayer made by the appellant to set aside award dated January 9, 2006 made by the Labour Court, Ajmer in LCR No. 37/99 directing the appellant to reinstate the respondent in service with 10% back wages, is refused. 2. The respondent-workman was appointed on April 18, 1988 on daily wage basis. He served the appellant University upto January 4,1989. His services were orally terminated. Therefore he raised dispute regarding validity of the order by which his services were terminated. The dispute was referred to the Labour Court, Ajmer for adjudication. The respondent riled his statement of claim on July 7, 1999. On October 12, 1999, the appellant University was represented by its lawyer before the Labour Court. However, on May 3, 2000, another lawyer i.e. Mr. L.S. Mathur filed appearance on behalf of the appellant University. Again on October 16, 2004, yet another lawyer i.e. Mr. K.G. Joshi filed his appearance on behalf of the appellant University but no reply was filed by the appellant University at all, though, the statement of claim was submitted by the respondent on July 7, 1999. Having regard to the facts of the case, the Labour Court closed the right of the University to file reply by an order dated March 18, 2002. Thereafter, the respondent workman submitted his affidavit dated October 30, 2002 in support of the averments made in the statement of claim. In spite of several opportunities having been offered, the University did not take any steps to cross-examine the respondent-workman regarding the facts which were mentioned by him in his affidavit. Therefore, on November 27, 2004, the right of the appellant to cross-examine the workman on his affidavit was closed. 3. The Labour Court thereafter directed the University by an order dated June 22, 2005 to produce certain documents, in spite of specific direction, the University did not produce the documents demanded by the Court. Therefore, by an order dated September 22, 2005 the opportunity to furnish documents was closed with a direction to the appellant University to submit affidavit with regard to the documents. The appellant University submitted affidavit of One Mr. D.L. Verma on November 21, 2005. Mr. Therefore, by an order dated September 22, 2005 the opportunity to furnish documents was closed with a direction to the appellant University to submit affidavit with regard to the documents. The appellant University submitted affidavit of One Mr. D.L. Verma on November 21, 2005. Mr. D.L. Verma was cross-examined on behalf of the respondent-workman on December 14, 2005. In his cross-examination, the witness could not produce better particulars in support of what was stated in his affidavit which was filed on November 21, 2005. 4. After appreciating the evidence adduced by the parties, the Labour Court by award dated January 9, 2006 directed the appellant University to reinstate the respondent-workman in service with 10% back-wages. Thereupon, the appellant invoked extra ordinary jurisdiction of this Court by filing SBCWP No. 7357/2006 and claimed the relief which is referred to earlier. The learned single Judge has dismissed the petition by judgment dated May 8, 2007 giving rise to the instant appeal. 5. This Court has heard the learned Counsel for the parties and considered the' documents forming part of the petition. 6. The plea that the respondent-workman had failed to adduce any evidence to establish his claim that he had worked for 240 days or that he had worked on holidays including closed Saturdays as well as Sundays, and therefore adverse inference should not have been drawn against the appellant, cannot be accepted. As observed earlier, the respondent-workman had submitted his affidavit on October 30, 2002 in support of the averments made in the statement of claim which was filed on July 7, 1999. In spite of several opportunities having been offered, the appellant did not cross-examine the respondent-workman at all. Therefore, what' was stated by the workman in his affidavit remained uncontroverted. In absence of, any reply to the statement of claim submitted by the respondent-workman, the only reasonable presumption which would arise is that the appellant University had admitted the claim of the workman. Further, the Labour Court by an order dated June 22, 2005 had directed the appellant University to produce the documents. In spite of several opportunities having been given, the appellant University did not produce the documents before the Court for the reasons best known to it. Therefore, the opportunity to produce documents was also closed by the Labour Court vide order dated September 22, 2005. 7. In spite of several opportunities having been given, the appellant University did not produce the documents before the Court for the reasons best known to it. Therefore, the opportunity to produce documents was also closed by the Labour Court vide order dated September 22, 2005. 7. On the facts and in the circumstances of the case this Court finds that onus upon the respondent to prove that he had worked for 240 days shifted to the appellant and the appellant had failed to discharge the said onus by producing necessary documents for perusal of the Court. 8. The plea that the holidays and Sundays should be excluded while counting 240 days, cannot be accepted in view of the Division Bench decision of this Court reported in the case of Ram Kishan Gurjar v. State of Rajasthan and Anr. 2006-IV-LLJ (Suppl)-342 . 9. On the facts and in the circumstances of the case, this Court is of the firm opinion that: the Labour Court did not commit any error in directing the appellant University to reinstate the respondent in service with 10% back wages, more particularly, when it was satisfactorily established by the respondent-workman that he had continuously worked for more than 240 days and that the appellant University had committed breach of provisions of Sections 25-H and 25-G of the Industrial Disputes Act, 1947 read with Rule 77 of the Industrial Disputes Rules. The learned Counsel for the appellant has failed to persuade this if Court to take a view different than the one which is taken by the learned single Judge on appreciation of evidence, and therefore the appeal which lacks merits, deserves dismissal. 10. For the foregoing reasons, the appeal fails and is dismissed.Writ appeal dismissed. *******