1. Heard Sri Radhey Shyam Dwivedi, learned counsel for the petitioner and learned Standing Counsel for the respondents-State.
2. The petitioner is aggrieved by the order dated 21.09.2021 passed by the respondent No.1/Presiding Officer, Labour Court, U.P., Firozabad directing the petitioner-employer to produce the following documents.
I. The attendance register being maintained at the establishment, Form No.-12 from 12 December, 2002 to 2016;
II. Bonus disbursal register being maintained by the petitioner-establishment from the year 2010 to 2016;
III. Wage payment register being maintained by the petitioner-establishment from the year 2010 to 2016;
IV. Form No.14 being maintained by the petitioner-establishment from the year 2010 to 2016.
3. The learned labour court in the impugned order dated 21.09.2021 has found for the workman by holding that the production of the documents demanded by the workman in his application is essential to enable him to establish the fact of his employment in the petitioner-establishment.
4. The respondent No.3-workman has taken a specific pleading that he was employed in the petitioner-establishment and was working as a packager. His services were illegally terminated on 13.12.2016. The respondent No.3-workman in this case does not have various documents in his possession which can establish the fact of his being employed in the petitioner-establishment. This Court finds that the documents being summoned by the learned labour court are not only most relevant to the case but also that the said documents are liable to be in possession of the petitioner-establishment. Reluctance of the petitioner-establishment to produce the aforesaid documents clearly shows that the petitioner-establishment is not willing to tender the best evidence before the court.
5. In these circumstances, it is also open for the learned labour court to draw an adverse inference against the petitioner-establishment as per law.
6. The concept of adverse inference was inserted in the statute and evolved by the Courts to protect the interests of workmen which are sought to be defeated by circuitous methods employed by unscrupulous employers. The documents in question are required to be maintained by every employer/establishment under the relevant statutory provisions.
7. Reliance placed by Sri Radhey Shyam Dwivedi, learned counsel for the petitioner-establishment on the judgement of Delhi High Court rendered in Bliss Refrigeration Pvt. Ltd. Vs. Naseeb Alam, reported at 2016 (148) FLR 124 is distinguishable on facts. In Bliss Refrigeration Pvt. Ltd. (supra), the Court had found that the workman had not worked for 240 days, hence attendance register or the wage register is not required. Here the workman claims that he has worked continuously for more than 240 days. The facts of this case are different.
8. The Delhi High Court judgement in Automobile Association of India v. P.O. Labour Court-II, reported at 2006 (3) LLJ 929 supports the case of the workman and fortifies the judgement of the learned labour court. In Automobile Association of India (supra), the liability of producing various employment related records was placed upon the employer by holding thus:
"11. ....Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave records, deposit of Provident Fund contribution and Employees' State Insurance contributions etc. The same can be produced and proved by the workman or he can call for and caused the same to be produced and by calling for witnesses who are required to bring and prove these records. The workman should make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman."
9. The contention that till the workman fully establishes his case that he is employed in the establishment, no document from the employer can be summoned, is misconceived. It is well settled the principle of evidentiary jurisprudence that documents have to be produced by a party which is in possession of them. In the instant case, the documents which are mentioned in the impugned order viz wage register and other registers etc. are liable to be in the possession and custody of the employer. It is noteworthy that the employer has not given any opportunity to the workman to access in the aforesaid documents. The burden of producing the said documents lies squarely on the petitioner-establishment. Failure to do so would invite to the necessary consequences in law.
10. Contention that the documents are liable to be preserved only for three years after the close of the year is yet again misconceived. Rule 78(4) is related only to the provisions of Uttar Pradesh Factories Rules, 1950. The provision of Rule 78(4) of the Rules, 1950 is extracted hereunder:
"Rule 78(4). The register shall be preserved for three years after the close of the year to which they relate."
11. The aforesaid statutory provision of preserving documents for three years shall apply, only when no industrial dispute has been raised as regards the aforesaid documents prior to three years. In case an industrial dispute is raised within the aforesaid statutory period of three years, the employer is under an obligation of law to preserve such documents till the industrial dispute is finally decided by the courts.
12. In case the employer proceeds post haste to destroy the documents, it would amount to destroying critical pieces of evidence. This again would not reflect poorly on the employer and necessary legal consequences will follow.
13. Moreover, this provision is not applicable to all documents required to be submitted by the petitioner-establishment.
14. There is no infirmity in the impugned order dated 21.09.2021 passed by the respondent No.1/Presiding Officer, Labour Court, U.P., Firozabad.
15. The writ petition is liable to be dismissed and is dismissed.
Order Date :- 23.10.2021 Ashish Tripathi