JUGAL KISHORE Vs. PRESIDING OFFICER,LABOUR COURT,GURDASPUR

JUDGEMENT

(1.) The writ petition challenges the order of rejection of reference sought at the instance of the workman. The contention of the workman was that he had been employed as a Baledar since 1.11.1988 to 31.3.1990 when his services were illegally terminated. The workman examined himself to speak about the period of engagement, while the Management had two contentions to take viz. that he had not worked for a continuous period of 240 days and that a reference was sought nearly 10 years and 9 months after the date of termination and hence the workman who was guilty of laches is not entitled to any relief.

(2.) The Labour Court held that the burden of proof was on the workman to establish the period of 240 days of continuous service and found inconsistency in his version that he contended that the post of Baledar itself was permanent but he had been employed on daily rated basis. The Labour Court found that the workman had not examined any co- worker to discharge the burden which was heavy on the workman relating to his period of work. The finding of the Labour Court in my view, appears to be no correct for mere oral evidence of the workman could not have also been found to be credible enough to uphold the claim. The best evidence is always available with the Management and in a case where the workman gives evidence relating to his period of engagement and he also gives cogent evidence of the available materials with the Management and when the Management does not produce such records the Court would be even justified in drawing an adverse inference against the Management.

(3.) As regards the proposition of law that the burden of proof is always on the workman it must be stated that the burden of proof never shifts. The explanation of the principle shall be in the context of how the initial burden is cast which can never shift. The onus of proof, however, is an expression which Courts employ to see how the initial burden is sought to be discharged when the Court looks for nature of evidence which is adduced by the party against whom the evidence is tendered. In such an event, it is stated that the onus shifts to the other side. In this case, when the workman had given evidence of number of days his engagement, he had also referred to the documents which are available with the Management, it must be taken that the onus shifted to the Management to adduce evidence on the number of days that he worked. Although, the documents have been available with the Management from November, 1988 up to March, 1990 it had not produced evidence for the said period. In fact it was in evidence of the Management witness that the documents had been available when the written statement was prepared. The justification for non-production was only that the document was too old. He had also admitted that there was no loss or misplacement of the records for the relevant period. It was definitely a case where the Management was trying to conceal the best evidence which was available.