DY EXECUTIVE ENGINEER Vs. DHOLAKIA GORDHANBHAI KARSANBHAI

JUDGEMENT

(1.) In the present matter, the respondent-workman was terminated on 1st July, 1986, as alleged by the petitioner, though the present petitioner-employer said that the workman left of his own accord. Be that as it may. In the reference, the workman was examined and he stated before the Court that he had worked for more than 240 days in the calendar month just preceding the date of retrenchment or termination, however, the records/muster rolls for the months of July to September, 1985 were not produced in the Court.

(2.) Shri Premal R. Joshi, learned Counsel for the petitioner, submits that the learned Court below was absolutely unjustified in not appreciating that the burden to prove that the workman had worked for 240 or more days in twelve calendar months just preceding the date of retrenchment was upon the workman and that no duty was cast upon the present petitioner-employer to produce the muster rolls. He placed his strong reliance upon a Division Bench judgement of this Court in the matter of The Executive Engineer (Mechanical) vs. Shri Chetan P. Oza, 2005 2 GLH 742. It is contended that if the petitioner failed in proving that he had worked for 240 or more days in twelve calendar months just preceding the date of retrenchment, then, the order for reinstatement or payment of wages from the date of retrenchment/termination could not be made.

(3.) Shri T.R. Mishra, learned Counsel for the respondent-workman, however, submits that controverting the oral statement made by the present workman, the petitioner-employer did not make any statement before the learned Labour Court, therefore, the Labour Court was justified in relying upon the oral statement of the workman and further justified in holding that the workman had proved that he worked for 240 or more days in twelve calendar months just preceding the date of retrenchment. His further submission is that the defences raised by the petitioner-employer cannot be taken into consideration, especially, when the defences were not proved by asking any witness to step in the witness box.