9911796707
TMI Blog2004 (9) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the Respondent. No reason has been assigned by the High Court as to why the exercise of discretional jurisdiction of the Tribunal was bad in law. In a case of this nature, it is trite, the High Court exercising the power of judicial review, would not interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s he had completed working for 240 days in a year, the purported order of the retrenchment is illegal as conditions precedent therefor as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with. The contention of the Appellant herein, on the other hand, was that the said respondent had worked only for 136 days during the preceding twelve months on daily wages and had no lien over the said job. The Tribunal upon considering all the materials placed on records by the parties to the dispute came to the conclusion that the total number of working days of the workman was 184 days and, thus, he having not completed 240 days of working in a year was not entitled to any relief. The learned Tribunal noticed that neither the Management nor the workman cared to produce the muster rolls with effect from August, 1994 which was their joint liability. It was further observed that the workman even did not summon the same although the Management had not produced the muster rolls. The respondent being aggrieved by and dissatisfied with the said Award filed a writ petition before the Punjab and Haryana High Court which was marked at CWP No.624 of 2000. Before the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof; (ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months. For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25-B of the Act. In terms of sub-Section (2) of Section 25-B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17.5.1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5.8.1994 to 16.5.1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents in his possession. Some documents which could have thrown some light on the question under determination have not been produced. It is true that the defendant- respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that, therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent's case." Yet again in Smt. Indira Nehru Gandhi vs Shri Raj Narain (AIR 1975 SC 2299), law has been laid down by this Court in the following terms : "The third and the last and a subsidiary submission on behalf of the election petitioner, on election expenses was that Shri Dal Bahadur Singh not having been produced by the original respondent, some sort of presumption arises against the original respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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