1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3838 OF 2009 (Madhukar G. Karluke vs. Dy. Conservator of Forest & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 23, 2009. Heard finally Shri Jagdale, learned counsel for the petitioner and Shri Khubalkar, learned counsel for the respondents. Shri Khubalkar, learned AGP has requested for adjournment to produce before this Court attendance registers or records pertaining to services for the period from 1.1.1992 to 18.08.1993. However, in present facts, the production before this Court is not going to help the respondents. The short question is whether the period of absence from service from 1.1.1992 to 18.8.1993 could have been treated as period of service and retrenchment compensation needed to be calculated accordingly. Labour Court has found that admittedly present petitioner entered the service on 09.05.1988 and was terminated on 30.06.2003. It has further found that present respondents did not bring on record any material to show the treatment given to services of the petitioner from 1.1.1992 to 18.8.1993. It, therefore, 2 held that said period also needed to be counted as period of continuous service and retrenchment compensation ought to have been calculated accordingly. The learned Member of Industrial Court in Revision filed by State Government held that said period needed to be ignored. It further held that if said period is ignored, compensation paid to the petitioner is corrected and as juniors are not shown to have been retained, his complaint before Labour Court was misconceived. It, therefore, dismissed that complaint. Shri Jagdale, learned counsel before this Court has urged that as there was nothing on record to show the treatment of period from 1.1.1992 to 18.8.1993, said period has been correctly treated as period of continuous service in view of provisions of Section 25B in Chapter VA of Industrial Disputes Act. He wants to rely upon certain judgments to support his contention. The learned AGP contends that burden to show this was upon the petitioner and that burden has not been discharged. He further states that the department has only accepted that he was given work again on 19.08.1993 and continued up to 30.06.2003. The initial entry of the petitioner into service is on 09.05.1988 and that date is admitted by the respondents. In these circumstances, the respondents have also accepted that they have not taken any action 3 against the petitioner for the period from 1.1.1992 to 18.8.1993. Shri Jagdale, learned counsel has stated that even today the petitioner is in service as daily wager. All these necessitate a fresh look in to the matter by the Labour Court to find out whether the respondent has treated the petitioner as in service from 1.8.1992 to 18.8.1993 or then he was allowed to join on 19.08.1993 as fresh employee. Merely because the respondents have not passed any order regarding said period, that may not tantamount to his continuing in service for said period. The basic burden to show the service during that period was upon the petitioner. The petitioner claims to have discharged it by pointing out his earlier service and his later service. The respondents have not produced on record any material like attendance register or musters during said period to show whether the name of the petitioner was continued as employee during all this period or then after 31.12.1991 his name appeared on Muster for the first time on 19.08.1993. I find that in this situation going by concept of burden of proof may not be very relevant. The petitioner as also respondents ought to have adduced necessary evidence. Considering the impact of said finding, it is appropriate to quash and set aside the judgment of the learned Industrial Court dated 21.7.2009 in Revision No. 52 of 2007 as also judgment 4 of Labour Court dated 30.04.2007 in ULP Complaint No. 45 of 2003. The proceedings in ULP Complaint No. 45 of 2003 are restored back to the file of Labour Court, Yavatmal, for taking fresh decision on the lines as mentioned above in accordance with law after due opportunity to the parties. As the matter is being sent back, Labour Court to attempt to decide said matter as early as possible and in any case by 30th June 2010. As the respondents have continued the petitioner in service as daily wager, status quo as on today shall be maintained till the Labour Court decides the complaint. Writ Petition is disposed of. Rule accordingly. No order as to costs. Certified copy expedited. JUDGE *GS.