SURENDRANAGAR DISTRICT PANCHAYAT Vs. JETHABHAI PITAMBERBHAI

JUDGEMENT

(1.) 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).

(2.) 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/ could not 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.

(3.) 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.