Surendranagar District Panchayat & ANR Vs. Jethabhat Pitamberbhai  Insc
594 (25 October 2005)
S.N. Variava & P.P. Naolekar 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
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 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
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 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
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.