S.S. SudhalKar, J. - (1.) THIS writ petition is riled by the workman challenging the award of the Labour Court dated 21.1.1999 (copy annexure P/1) vide which his prayer for reinstatement with consequential benefits was declined. The petitioner contends that he was appointed as a Painter by respondent No. 1 in the year 1983 and his services were terminated on 1.10.1992 without any notice, charge -sheet or payment of any compensation. He has further stated that at the time of tenninafion of his service, he was getting Rs. 56/ - per day as daily wages. He served a demand notice. Conciliation proceedings took place and since reconciliation was not possible, the case was sent to the Labour Court. The Labour Court came to the conclusion that the petitioner has not completed 240 days of service; that he had left the job of his own and that the petitioner was daily wager and was not entitled to the protection under the Industrial Disputes Act (hereinafter referred to as the "Act").
(2.) SO far as completion of 240 days of service is concerned, the Labour Court has come to the conclusion that the petitioner has worked for 175 days (the mention of figure 275 days appears to be a typographical mistake). However, it can be seen that the relevant record regarding the attendance was not produced by the respondent. The translated version of statement of MW1 is produced at annexure P -2/T in this case. MW1 on 21.1.1995 was directed to bring the muster roll to be produced on record. The cross -examination of the witness was adjourned for production of the same. On 22.2.1966, the cross -examination proceeded further when MW1 has stated that on the last date he was directed to produce the muster rolls of the said gaps but he has not brought the same today i.e. on 22.2.1996. The muster rolls were called for just to show what was the real position of alleged gaps in the period of working as mentioned in Ex -W2/1 produced before the Labour Court. Ex.W2/1 is nothing but a statement of facts. Therefore, for explaining the gaps, no reason is shown as to why this muster roll was not produced by the witness. Moreover, his cross - examination was deferred for the same. Counsel for the respondent has relied on the statement of MW2 Mr. Shiv Sharma. According to his statement, he has produced the record which is Ex.WW/1 and whatever record was available was brought by him. As stated earlier WW2/1 is only a statement and not the original record. This shows that the respondent has deliberately withheld the record which would have gone to show the real position and the conclusion that can be drawn is that had the record produced, it would have gone against the respondent. The Labour Court has observed that the management witness has stated that the details of working days produced on record was prepared as per the government record i.e. muster rolls. However, no reason is shown as to why the muster rolls are not produced. The Labour Court has observed that the department was not required to produce the record which was non -existent. However, it is not stated by the witness of the respondent as to which record was not -existent. Moreover MWI was directed to produce the muster roll which has not been produced. Therefore, finding of the Labour Court regarding the inference which can be drawn regarding the non -production of record is not correct. Actually a party in the possession of the best evidence should produce it though the burden of proof may not be upon that party or that he was not called upon to produce the same. Here in this case MW1 was even called upon to produce the muster rolls and still he has not produced the same and what is produced by the another witness is only a statement. Hence, for not producing the relevant record which is in possession of the respondent, adverse inference can be drawn against it. I am supported in my view by the judgment in the case of Gopal Krislinaji Ketkar v. Mohamed the finding of the Labour Court that the petitioner did not complete 240 days of service cannot be accepted and on the contrary it is held that the respondent's contention that he did not complete 240 days cannot be said to be correct because of withholding of the necessary record which was in the possession of the respondent. The next question is regarding the leaving of job by the petitioner himself. In the conciliation proceedings, the petitioner was asked to join at Mukerian. At the time of termination of his service, the petitioner was working at Hoshiarpur. The learned counsel for the respondent has argued that the petitioner voluntarily left the job. It is difficult to accept this argument. Only because the petitioner in the conciliation proceedings refused to go to some other place of posting, it cannot be said that he left the job on his own.
(3.) THE next point is that the petitioner was not a workman as he was a daily wager and his case is not covered by the provisions of the Act. The Labour Court had, in this regard, relied on the case of Himan -shu Kumar Vidyarihi and others v. State of Bihar and others, 1997(3) RSJ 29S. However, there is subsequent judgment of the Supreme Court in the case of State of U.P. and another v. Rajendra Singh Butola and another in which contrary view has been taken by the Supreme Court.;