WRIT PETITION 2712 of 2006 on 21 October 1984

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDENAGPUR BENCH, NAGPUR

LETTERS PATENT APPEAL NO. 339 OF 2011

IN

WRIT PETITION NO. 2712 OF 2006

Vishranti Vithoba Dukare Vs. Executive Engineer P. W. D. Wardha

........................................................................................................................................................................Office Notes, Office Memoranda of Coram,appearances, Court orders or directions Court's or Judge's Orderand Registrar's orders

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Shri M. P. Jaiswal Adv for appellant.Shri M. K. Pathan AGP for respondent.

CORAM: B. P. DHARMADHIKARI &P. D. KODE JJ.

DATED: 22[nd] DECEMBER, 2011.

The services of appellant as claimed here were on daily wages from 21.10.1984 to 30.09.1985. A reference challenging that termination was sought practically after 10 years. Labour Court delivered award on 18.01.2005 and granted her relief of reinstatement with continuity without back wages. This award was questioned by respondents in Writ Petition No. 2712 of 2006. Learned Single Judge of this Court by judgment dated 08.02.2011 had allowed that writ petition.

Shri M. P. Jaiswal with Shri Harkare learned counsel for petitioner contends that services of appellant were on daily wages 2212lpa339.11

and no appointment order was issued to her. There is no need to issue any notice to produce any document in welfare jurisdiction. He fairly point out that respondent-employer had urged that as per P.W.D. Manual, records are not preserved after five years. He, therefore, contends that in absence of those documents, the Labour Court has correctly accepted oral evidence of appellant which was cogent and convincing. According to him when department claimed that it had no records, its oral evidence had no value and could not have been looked into. He is relying upon some judgments to substantiate his contention that in such situation as best possible evidence namely documents were in custody of respondents and same were not produced, the finding of labour Court that on completion of 240 days will have to be upheld. In the alternative and without prejudice he states that said finding of completion of 240 days is not relevant for and a finding of breach of Section 25-G of Industrial Disputes Act reached independently needed to be sustained.

Learned AGP is supporting the impugned order of learned Single Judge. He contends that when reference was sought almost after 10 years, it is clear that the learned Single Judge has correctly appreciated the controversy and by relying upon Rule 272

of PWD Manual has allowed the petition.

The appellant before this Court has not shown that records were available and still the respondent avoided to produce it. Respondent pointed out that it had a Seniority List published in the year 1986 and in it name of present appellant did not figure. It is obvious that if the present appellant was terminated on 30.09.1985, her name could not have figured in that list. But then burden was upon the appellant to show completion of 240 days and also independently violation of Section 25-G. If records are destroyed, the respondent employer is put to prejudice because its officers are then not in a position to verify the assertions of present appellant. In this situation the argument of Shri Jaiswal about liberal approach or then about burden of proof are misconceived. In para 5 learned Single Judge has correctly appreciated the controversy. We do not see any jurisdictional error or perversity. Letters Patent Appeal is rejected.

JUDGE

JUDGE