PORT OFFICER Vs. KANAKSINH AJITSINH JEDEJA

JUDGEMENT

(1.) Heard the learned Advocate, Ms. Sejal K. Mandavia, appearing on behalf of petitioner and learned Advocate, Mr. U.T. Mishra, appearing on behalf of respondent.

(2.) In the present petition, the petitioner has challenged the award passed by Labour Court, Rajkot in Reference No. 717 of 1990 dated 28.2.2006, whereby, the Labour Court, Rajkot has set aside the termination order and granted the reinstatement with continuity of service with 20% back wages of interim period.

(3.) Learned Advocate, Ms. Mandavia, heavily relied upon the decision of the Apex Court in case of Surendranagar District Panchayat v. Dahyabhai Amarsinh. She relied upon Heade Note-A and Para.6 of the said decision. She submitted that Labour Court has committed gross error in drawing adverse inference against the petitioner for non-production of documentary evidence on record. She also submitted it is burden upon the workman to prove 240 days continuous service and it is not the burden upon the employer. She also submitted that workman has not produced any documentary evidence to justify his case of completion of 240 days continuous service. She submitted that at Page-26, presence of workman noted for the year 1989 but, looking to the record of the Labour Court, the specific observation has been made vide Exh.27 that petitioner has produced muster roll from November, 1982 to December, 1988. The submissions made by Ms. Mandavia cannot be accepted on the ground that the Court should have to consider the award as it is and no new document can be examined by this Court when legality and validity of award is under challenge. If according to petitioner, any mistake has been committed by the Labour Court, then, they should have to first approach the Labour Court to correct the mistake by giving such application. No such application was given by petitioner before the Labour Court to correct the said mistake, if it is a mistake according to petitioner. She also submitted that Labour Court has committed gross error in granting 20% back wages of interim period. Except that, no other submission is made by learned Advocate, Ms. Mandavia and no decision has been relied by her.