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CASE NO.: Appeal (civil)  9668 of 2003

PETITIONER: Surendranagar District Panchayat and Anr.                                        

RESPONDENT: Jethabhat Pitamberbhai                           

DATE OF JUDGMENT: 25/10/2005

BENCH: S.N. Variava & P.P. Naolekar

JUDGMENT: J U D G M E N T  

P.P. Naolekar, J.

       The State of Gujarat had referred the industrial  dispute to the Labour Court, Surendranagar for  adjudication as to whether Shri Jethabhai Pitambarbhai  is to be reinstated at its original position with full  payment of salary.  The dispute arose as the appellant  herein had terminated the services of the respondent.   After notice the workman-respondent filed his claim  contending therein that he had been in employment  with appellant for last three years as a Daily Wager and  was drawing an amount of Rs.22.70 per day; that on  1.4.1991, he was given an oral notice and was  discharged from service.  At the time of his discharge  he was not given any written notice or payment in lieu  thereof.  His seniority had not been considered, and  employees who were junior to him were continued in  service whereas he was terminated.  It was also alleged  that after the termination of his service, fresh  recruitments were made.  In response, the employer  had filed its reply and contended that the respondent  was called for work, which depended upon the  availability of the work and funds.  The respondent had  never completed 240 days in any of the year right from  the beginning; that the services of the respondent was  orally terminated due to non availability of work  and  there was no retrenchment or termination within the  meaning of the Industrial Disputes Act 1947  (hereinafter to be referred to as the ’Act’).         Both the parties led evidence.  It is recorded by  the Labour Court in Paragraph 4 of its Judgment that  Exhibit 8 is the details pertaining to the attendance of  applicant, which has been produced with application.   The xerox copy of attendance register and muster  register has been produced at Ex.10.  On the basis of  the oral evidence, the Labour Court came to the  conclusion that the workman proved his case that he  had worked with the employer for the last 10 years and  the last wages drawn by him was Rs.22.50 and that he  was discharged on 1.4.1991.  That being the case,  there was non compliance of the provisions of law and  therefore set aside the termination order dated  1.4.1991 declaring it illegal.  The workman was  awarded 25% amount of his salary from 20.6.1996  onwards.         The Department had unsuccessfully challenged the  order of reinstatement before the High Court.  The High

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Court held that the finding of the Labour Court that the  employee had completed more than 240 days in a year  on the basis of the deposition of the employee was not  controverted by showing any reliable evidence, and the  statement showing the year wise presence in the  Attendance Register without proving it from the original  record, couldnot be relied upon. The High Court held  that the employee had completed more than 240 days  in a year and that it was not open for it to go beyond  the findings arrived at by the Labour Court.         From the tenor of the Judgment of the Labour  Court and the High Court, it is apparent to us that the  judgment has proceeded on the premises as if the  burden of proof lies on the employer to prove that the  employee had not worked with him for 240 days in the  preceding year immediately the date of his termination.   Even if we assume that the burden of proof lies on the  employer, we find from the record that the employer  has filed a Xerox copy of the Attendance Register and  the Muster Roll which indicate that in the year 1984 the  workman has worked for 38 days, in the year 1985-not  a single day, in 1986- 72 days, in 1987-25 days, in  1988- not a single day, in 1989-92 days, in 1990- 82  days, and in 1991 not a single day. The Attendance  Register and the muster roll clearly indicate that in  none of the years from 1984 to 1991 the workman ever  worked in the Department of his employer continuously  for a year to constitute continuous service of one year.   The claimant, apart from his oral evidence has not  produced any proof in the form of receipt of salary or  wages for 240 days or record of his appointment or  engagement for that year to show that he has worked  with the employer for 240 days to get the benefit under  Section 25F of the Industrial Disputes Act.  It is now  well settled that it is for the claimant to lead evidence  to show that he had in fact worked for 240 days in a  year preceding his termination.         In Mohan Lal  vs. Management of M/s. Bharat  Electronics Ltd., (1981)  3 SCC 225, it is said by  this Court that before a workman can claim   retrenchment  not being in consonance of Section 25F  of the Industrial Disputes Act, he has to show that he  has been in continuous service of not less than one  year with the employer who had retrenched him from  service.           In  Range Forest Officer vs. S.T. Hadimani,  (2002) 3 S.C.C. 25 - (At Page 26, Para 3), this  Court held that "In our opinion the Tribunal was not  right in placing the onus on the management without  first determining  on the basis of cogent evidence that  the respondent had worked for more than 240 days in  the year preceding his termination.  It was the case of  the claimant that he had so worked but this claim was  denied by the appellant.  It was then for the claimant  to lead evidence to show that he had in fact worked for  240 days in the year preceding his termination.  Filing  of an affidavit is only his own statement in his favour  and that cannot be regarded  as sufficient evidence for  any court or tribunal to come to the conclusion that a  workman had, in fact, worked for 240 days in a year.   No proof of receipt of salary or wages for 240 days or  order or record of appointment or engagement for this  period was produced by the workman.  On this ground  alone, the award is liable to be set aside."         More recently, in Rajasthan State Ganganagar

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S. Mills Ltd. vs. State of Rajasthan & Another ,  (2004) 8 S.C.C. 161; Municipal Corporation,  Faridabad  vs. Siri Niwas, (2004) 8 S.C.C. 195 and  M.P. Electricity Board vs. Hariram,  (2004) 8  S.C.C. 246, this Court has reiterated the principal that  the burden of proof lies on the workman to show that  he had worked continuously for 240 days in the  preceding one year prior to his alleged retrenchment  and it is for the workman to adduce an evidence apart  from examining himself to prove the factum of his  being in employment of the employer.           On the face of the aforesaid authorities, the  Labour Court and the High Court committed an error in  placing the burden on the employer to prove that the  workman had not worked for 240 days with the  employer.  The burden of proof having been on the  workman, he has to adduce an evidence in support of  his contention that he has complied with the  requirement of Section 25B of the Industrial Disputes  Act.  In the present case, apart from examining himself  in support of his contention the workman did not  produce any material to prove the fact that he worked  for 240 days.  In fact the employer had produced  before the Labour Court the Attendance Register of the  workman  and the muster roll clearly showing that the  workman had not worked continuously in the preceding  year with the employer or that he had worked with the  employer for 240 days in the preceding 12 months  prior to his alleged retrenchment.  In the absence of  evidence on record the Labour Court and the High  Court have committed an error in law and fact in  directing reinstatement of the respondent-workman.   That being the case, the award of the Labour Court and   the judgment of the High Court, are set aside.  The  appeal is allowed.  However, in the circumstances of  the case, there shall be no order as to costs.  If the  workman has been reinstated in pursuance of the order  of the Labour Court, salary and other emoluments paid  to him shall not be recovered.