- (1.) The petitioner has preferred this writ petition claiming following reliefs:- ...[VARNACULAR TEXT UMIITED]...
(2.) The petitioner was appointed on the post of daily wage cattle guard on 1.7.1986 and he claimed that he remained in service upto November 1992 when his services was unlawfully brought to an end. The matter was referred to the labour Court after unsuccessful conciliation proceedings and the labour Court has passed an order against the workman-petitioner on 26.12.2000 primarily on the ground that the petitioner was unable to prove 240 days regular employment preceding service coming to an end.
(3.) Counsel for the petitioner Shri M.F.Baig has submitted that there was an application for calling for the muster rolls which would have categorically answered the question of the learned Court below regarding the continuity of the services of the petitioner for 240 days preferred on 18.11.2005 and it is on record of page No.45 of paper book. Counsel for the petitioner further submitted before this Court that the application was allowed vide order dated 5.3.2009 passed by the learned labour Court but in spite of calling of the muster rolls, the respondents could not bring it on record and filed an affidavit that the same was not available with them. Counsel for the petitioner submits that when such stand has been taken by the respondents that they could not produce the muster rolls, then it is to be adversely inferred against the employer. To support his submission, the Counsel for the petitioner has referred to the judgment of the Supreme Court in Gauri Shanker Vs. State of Rajasthan- (2015) 12 Supreme Court cases 754. Relevant para 20 is reproduced as under: - "20. It is not in dispute that the workman was employed with the respondent- Department in the year 1987 and on the basis of material evidence adduced by both the parties and in the absence of the non- production of muster rolls on the ground that they are not available, which contention of the respondent-Department is rightly not accepted by the Labour Court and it has recorded the finding of fact holding that the workman has worked from 1.1.1987 to 1.4.1992. The Labour Court has drawn adverse inference with regard to non-production of muster rolls maintained by them, in this regard, it would be useful to refer to the judgment of this Court in the case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif and Ors.[6] wherein it was held thus: "5. .........Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, Lord Shaw observed as follows: "A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition." This passage was cited with approval by this Court in a recent decision-- Biltu Ram and Ors. v. Jainandan Prasad and Ors. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh :- "But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents." ;