GHAI RUBBER INDIA Vs. DEV RAJ

JUDGEMENT

(1.) IN the present writ petition, the challenge is to the award dated June 2, 2004 (Anneuxre-P-1), passed by the Labour Court, jalandhar, wherein the reference was answered in favour of the respondent/workman holding him entitled to 40 per cent back wages, continuity of service and all other consequential benefits.

(2.) COUNSEL for the petitioner firm contends that the onus to prove that the respondent-workman was an employee of the petitioner firm was on the respondent-workman and further to prove that he had completed 240 days with the petitioner firm in the preceding 12 months from the date of his alleged termination. The respondent-workman has not produced any evidence except for his statement claiming therein a piece rated worker with the petitioner firm nor any supportive evidence in the form of documents or oral evidence has been produced by the respondent-workman which would show that he has as a matter of fact worked with the petitioner firm. On the other hand, he contends that the respondents have examined Shri varinder Kumar, Partner of the petitioner firm who brought the attendance and wage register, e. S. I. Register from 1994-95 to 1997-98 which have been exhibited before the Labour Court which shows that the respondent-workman was never employed with the petitioner firm. In the e. S. I. Return, the name of the respondent-workman does not find mention. He contends that an adverse inference has been wrongly drawn by the Labour Court against the petitioner without there being a specific prayer on behalf of respondent workman to produce the records. There is no clear finding that the workman has worked with the petitioner firm. It was for the respondent-workman to produce some cogent evidence to show that he has worked with the petitioner firm.

(3.) COUNSEL for the respondent/workman submits that there is a delay of two years in filing the present writ petition which would be fatal for the petitioner firm as no cogent reason for filing the delayed writ petition has been given. He further contends that the best evidence which was available with the petitioner but the petitioner has failed to produce the same before the Labour Court and therefore, the Labour Court has rightly drawn an adverse inference and proceeded to decide the reference in favour of the workman.