1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.1623/2002. : : State of Rajasthan & Anr. Vs. Shri Radha Kishan & Anr. : : Date of Order 30.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Zakir Hussain, Addl.Govt.Counsel for the petitioners. Mr. D. P. Pujari for respondent No.1. Heard learned counsel for the parties. 2. This writ petition has been filed against the award dated 30.3.2001 by which reference was made to Labour Court with regard to termination of services of respondent- workman, which has been answered in terms that his removal by petitioner was not valid and he would be entitled to reinstatement with continuity of service, but without any back wages. 3. Shri Zakir Hussain, learned Additional Government Counsel appearing for the petitioner-State contended that specific contention raised by petitioner before Labour Court was that respondent-workman never worked for 240 days in 2 any calendar year, inasmuch as particulars of his working furnished before Labour Court showed that he worked only for 74 days in the year 1980, 94 days in 1981, 195 ½ days in 1982 and for 9 days in February, 1983 even though Labour Court passed an order requiring petitioner to produce on record and file affidavit whereas these facts were very much incorporated in reply to statements of claim. Affidavit of witnesses on behalf of Management was also produced. Initial burden of proof was on the workman to show that he has actually worked for 240 days in a calendar year immediately preceding the date of retrenchment. Learned counsel submitted that aspect of delay with regard to retrenchment made on 30.6.1985 and reference was made on 6.9.1996 was not at all examined by Labour Court. If the delay is taken from the year 1983 when the respondent lastly worked with petitioner, the delay would be 13 years and otherwise, if the delay is taken from 30.6.1985, delay is of 11 years. Learned counsel relied on judgment of Supreme in Director Food & Supplies, Punjab & Anr. Vs. Gurmit Singh : 2007 (5) SCC, 727 and argued that Supreme Court in that case remanded the matter merely on the ground that Labour Court failed to consider the plea that claim was made after 9 years without any explanation. 3 4. Shri D. P. Pujari, learned counsel for the respondent-workman opposed the writ petition and submitted that Labour Court passed a specific order on 2.8.1989 requiring the petitioner to produce on record as on what basis they contended that petitioner was working till 1983 only, but no such record was produced and, therefore, Labour Court was justified in drawing adverse inference against petitioner and holding that respondent worked with them from the year 1979 to 30.6.1985 continuously. There was thus violation of Section 25-F of Industrial Disputes Act. Labour Court taking note has already moulded the relief while denying the back-wages to respondent and now respondent-workman has already been with petitioner since 2004. It was contended that respondent-workman had no record in his control and, therefore, it was for petitioner- management to prove by producing relevant record that respondent actually did not work with them for 240 days preceding the date of his retrenchment. It is, therefore, prayed that this writ petition be dismissed. 5. Upon hearing learned counsel for the parties and perusing the material on record as also the statement of claim and reply thereto, I find that petitioner has all long 4 insisted that he worked till 30.6.1985 and which fact is submitted by an affidavit. The petitioner in reply to statement of claim gave particulars of the dates for which the respondent-workman worked and obviously such particulars were based on their records. They also pleaded with regard to delay and stated that since the claim has been raised after an enormous delay, therefore, this clearly showed that it was a false claim. Labour Court has proceeded on the assumption that workman was not required to prove that he worked for 240 days in a calendar year immediately preceding the year and it was for the Management to prove that he did not work for 240 days in a calendar year. The aspect of delay has not at all been examined which was necessary in point of the fact that delay would obviously create a difficulty for the management to produce all the records. Contention that Labour Court has already taken note of aspect of delay and has moulded the relief by denying back wages to respondent-workman, is not substantiated from the findings recorded and discussions made in the award. On the contrary, the Labour Court has observed that possibility of workman earning his livelihood elsewhere during the period he was out of employment cannot be denied and, therefore, he was not entitled to back wages. Labour Court has not, 5 therefore, passed its direction to deny back wages for reason of delay, but findings as regards the violation of Section 25-F have not at all been specifically recorded. 6. Having regard to the facts of the case, I am therefore, persuaded to hold that petitioner has made out a case for remand the impugned award. In the result, this writ petition is disposed of. The impugned award dated 30.3.2001 passed by Labour Court No.2, Jaipur is set aside. The matter is remanded back to Labour Court No.2, Jaipur with direction to grant particular to the parties if they desire to adduce fresh evidence and decide the same in accordance with law as expeditiously as possible, but not later than one year from the date certified copy of this judgment is produced before it. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.27.