HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.2256 of 2008 (M/S) Dayanand Mamgai S/o late Chandramani Mamgai … Petitioner Versus Manager, M/s Sadaram Rubber Industries … Respondents Dated:- 10th May, 2010 Hon’ble Tarun Agarwala, J. Heard Sri Yogesh Pacholia, the learned counsel holding brief of Sri Navnish Negi, the learned counsel for the petitioner and Sri Subhash Upadhyaya, the learned Brief Holder for the State. The petitioner has challenged the validity and legality of the award dated 04.09.2008 passed by the Labour Court, Dehradun in Adjudication Case No.103/2005, by which the claim of the petitioner has been rejected. The brief facts leading to the filing of the writ petition is that the petitioner had alleged in his written statement that he was appointed as a Foreman / Chemist in the respondent company w.e.f. 27.11.1995 and continued to work without any break in service till 21st August, 2004 when his service was arbitrarily dispensed with. The workman in his written statement has categorically contended that he had worked for more than 240 days in a calendar year and that the retrenchment compensation was not paid to him. It transpires that inspite of notice being issued, the employer did not appear before the labour court and the labour court accordingly proceed ex-parte against the employer. Inspite of the written statement of the workman remaining unrebutted, the labour court has rejected the claim of the petitioner on the ground that he was unable to prove that he had worked for more than 240 days in a calendar year. The petitioner, being aggrieved by the said award, has filed the present writ petition before this Court. Notice was issued to the employer and inspite of notice, the respondent has failed to appear. Having heard the learned counsel for 2 the petitioner, this Court is of the opinion that the order of the labour court cannot be sustained in view of the provision of sub-clause (8) & (9) of Rule 12 of the U.P. Industrial Disputes Rules, 1957 (hereinafter referred as Rules of 1957). For facility, the said provisions are quoted hereunder:- “12. Proceedings before the Labour Court or Tribunal. – (8) The written statement filed by the union or the workmen shall state the grounds on which the claim of the concerned workman is based and the written statement shall be accompanied by affidavit in which the consents of the written statement are sworn to. (9) If the affidavit accompanying the written statement of the union or the workmen is not rebutted by the employers, the Labour Court or the Tribunal, as the case may be, shall presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement.” A perusal of the aforesaid provision indicates that the written statement of a workman should be filed on an affidavit, which in the present case has been done and that the written statement of the petitioner filed before the labour court is supported by an affidavit. Sub-clause (9) of Rule 12 of the Rules of 1957 also indicates that if the written statement of a workman remains unrebutted, the labour court will presume the contents of the written statement to be true and make an award accepting the facts stated in the written statement. Since the averments made in the written statement of the workman remain unrebutted, the labour court had no choice, but, to proceed and presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement. Consequently, the labour court committed an error arrear in holding that the petitioner could not prove that he had worked for more than 240 days in a calendar year, which is against paragraph 7 of the written statement. In the light of the aforesaid, the award of the labour court cannot be sustained and is hereby quashed. The matter is remitted to the 3 labour court to decide the matter afresh in the light of the observations made above. (Tarun Agarwala, J.) Dated 10.05.2010 LSR