SBCWP3719/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.3719/1997 {Mangilal Vs. The Judge, Labour Court, Kota and the Executive Engineer, Irrigation Division, Irrigation Department, Baran} Date of Order ::: 04.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Nadeem Mazahir for Shri Bhanwar Bagri, Counsel for petitioner Shri S.D. Khaspuria, Additional Government Counsel and Shri Hemant Mathur, Deputy Government Counsel for respondent No.2 Department #### By the Court:- This writ petition has been filed by petitioner Mangilal against Award dated 27.02.1997 of the Labour Court, Kota, holding that termination of petitioner-workman on 01.01.1986 from service by respondent Department was legal and valid and he was not entitled to any relief. Learned counsel for petitioner-workman has argued that respondent Department did not produce complete record of employment regarding petitioner-workman. They admitted that the petitioner worked for 196 days starting from September, 1984 to April, 1986, whereas they SBCWP3719/1997 // 2 // did not at all produce any record in respect of remaining working days in the month of January, March, April and May of 1985, and, February, March and April of 1986; they have also not produced on record muster-roll No.5053/1986 in order to show his working days. The petitioner also worked in August and September 1985 and hand-receipts of wages received were obtained by respondent on vouchers, which are available with the respondent Department. This question was put to Assistant Engineer, appearing as a witness on behalf of respondent Department, in cross-examination, but he did not deny this fact and gave evasive reply. The petitioner also submitted an application on 03.09.1996 praying for summoning complete muster-rolls from 01.09.1984 to 30.04.1986 but the respondent Department did not produce the same on the record. The claim petition has wrongly been rejected. Violation of provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short, 'the ID Act') was fully proved. The respondent Department did not comply with the mandatory requirement of Rules 76 and 77 of the Industrial Disputes (Central) Rules. They did not produce any seniority list prepared prior to terminating services of SBCWP3719/1997 // 3 // petitioner. It is, therefore, prayed that writ petition be allowed and the impugned Award be set-aside. Learned Additional Government Counsel, appearing for the respondent Department, has opposed writ petition and submitted that entire record that was available with respondent Department with regard to working days of petitioner, was produced before the Labour Court. He referred to Para 6 and 7 of Award of Labour Court and submitted that evidence that was adduced by respondent Department before learned Labour Court clearly proved that petitioner did not work for 240 days in a calendar year preceding the date of his retrenchment. The learned Labour Court clearly held that there was no violation of Section 25- F of the ID Act. The learned Additional Government Counsel cited judgment of Hon'ble Supreme Court in The Chief Soil Conservator Punjab & Others Vs. Gurmail Singh – 2009 (5) Supreme 385, and argued that onus to prove the employment of 240 days lies on the workman. Having heard learned counsel for parties and perused the impugned Award especially the finding recorded by the Labour Court in Para 7 thereof and also considering number of days SBCWP3719/1997 // 4 // which petitioner has asserted in Para 5, for which the respondent did not produce the record, still the petitioner does not complete 240 working days in a calendar year preceding the date of retrenchment i.e. 01.05.1986. The burden of proof, in view of decision of Hon'ble Supreme Court in The Chief Soil Conservator Punjab & Others Vs. Gurmail Singh (Supra), was indeed on the workman but he utterly failed to discharge his onus. I, therefore, do not find any merit in this writ petition and the same is accordingly dismissed. (Mohammad Rafiq) J. //Jaiman//