STATE OF M. P. Vs. CHUNNILAL

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India the petitioner is challenging the order dated 27.2.2007 (Annexure P-3) passed by the Labour Court, Khandwa in Case No. 9/051.D. (Reference) by which the Labour Court has directed reinstatement of the respondent without back wages.

(2.) BRIEFLY stated on failure of the reconciliation proceedings in exercise of powers under S. 10 of the Industrial Disputes Act (for short 'the Act') a reference was made by the State Government to the Labour Court, Khandwa for adjudication of the dispute as to whether the respondent's application filed on 15.2.2003 after about seven years is tenable? If yes then whether the termination of the respondent in the year 1996 is legal and proper? If not then to what extent the respondent is entitled to get the relief.

(3.) SHRI Sanjay Joshi, learned DGA placing reliance on the Judgment of the Supreme Court in case of Surendranagar District Panchayat v. Dahayabhai Amarsingh (AIR 2006 SC 110) has contended that the respondent who claimed to have worked for more than five years as daily wager apart from the oral evidence did not produce any evidence, to prove the fact that he has worked for 240 days during the period of 12 calendar months preceding the date of termination of his services in the circumstances the order of the Labour Court in the absence of such proof is not sustainable. He also placed reliance on the Judgment of Supreme Court in case of Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25 in which it has been held that "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". He also relied on Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, 2004 (8) SCC 161, Faridabad v. Siri Niwas, 2004 (8) SCC 195 and M.P. Electricity Board v. Hariram, 2005 (2) Vidhi Bhasvar 123 = 2004 (8) SCC 246 in which it has been held that 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. He submits that the respondent having not produced proof of receipt of salary or wages or any other wages the Labour Court should have shifted the burden on the petitioner.