PARMAR SATISHKUMAR MANGUSINH Vs. DEPUTY EXECUTIVE ENGINEER

JUDGEMENT

(1.) Heard learned advocate Mr. J. V. Japee on behalf of the petitioner. In the present petition, the petitioner has challenged the award passed by the Labour Court, Himathnagar in Reference (LCH) No. 815/1996 dated February 23, 2001 wherein the reference raised by the petitioner workman has been rejected. Learned advocate Mr. J.V. Japee has submitted that petitioner had worked 240 days continuous service with the respondent, even though that aspect has not been taken into account by the Labour Court and came to contradictory finding from the record. He also submitted that bill of Petrol or Diesel wherein there was a signature of the petitioner which has not been taken into account by the Labour Court and Labour Court has committed gross error in relying upon the evidence of the other side and not relied upon the evidence of the petitioner workman. Therefore, according to him, interference by this Court is necessary.

(2.) I have considered the submissions made by learned advocate Mr. J.V. Japee on behalf of the petitioner workman. It is the own admission of the petitioner workman vide Exh. 26 in cross- examination that whatever days he worked with the respondent, he received the salary of those days. There is a clear finding of the Labour Court that workman has not made any claim in respect to the other days over and above 150 days. The Labour Court has considered that petitioner workman had worked for 22 days in March 1991, for 28 days in April 1991, for 25 days in May 1991, for 27 days in June 1991, in July, August and September 1991 he has not worked with the respondent and in October 1991, he has worked for 25 days and for 21 days in November 1991. In all, petitioner workman has worked with the respondent for about 152 days as stated by the respondent in his written submission at page 25. After appreciating the oral evidence, the Labour Court has come to the conclusion that the petitioner was not a permanent driver and he was working on a daily wages and as per the bill sanctioned by the respondent, the wages were paid to the petitioner workman and in each bill, the payment was made to the petitioner workman wherein the signature of the workman is there. Therefore, after relying on the cross-examination of the petitioner respondent that whatever days the petitioner workman had actually worked, he received the salary.

(3.) The burden to prove the actual 240 working days before the Labour Court is upon the employee. If the petitioner workman failed to discharge this burden, then it is not the duty of the respondent before the Labour Court to satisfy the Labour Court that petitioner workman has not completed 240 days of continuous service. This aspect has been examined by the Apex Court in the case of Range Forest Officer v. S. T. Hadimani reported in 2002-I-LLJ-1053, wherein it is observed that burden lies upon the claimant to show that he had in fact worked for 240 days in a year - in absence of proof of receipt of salary or back wages on record of appointment. Merely by filing affidavit is not a sufficient evidence to prove that he had worked continuously for 240 days in a year prior to his termination. Therefore, considering the observations made by the Apex Court and this Court, it has been recently considered by the Apex Court in subsequent decision in case of Essen Deinki v. Rajiv Kumar reported in 2003 SCC (L&S) 13 : 2002-III-LLJ-1111. In this case also, where workman has not completed 240 days continuous service and not proved these facts before the Labour Court, then there is no need to comply with Section 25-F by the employer. This aspect has been again examined by this Court in the present decision. Therefore, considering these observations made by the Apex Court in two above referred judgments and considering the facts of the present petition and after perusing the entire evidence, Labour Court has rightly appreciated oral evidence which is on record and there was no proof produced by the petitioner to satisfy the Labour Court that he had worked 240 days continuous service. On the contrary, whatever days the workman has worked, the relevant documents of payment made to the petitioner workman has been produced by the respondent. After all, these are the findings of fact. While appreciating the oral and documentary evidence, this Court cannot interfere with such findings of the Labour Court. Therefore, according to my opinion Labour Court has not committed any error which require any interference while exercising the powers under Arts. 226/227 of the Constitution of India. As there is no substance in the present petition, present petition is dismissed.