1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5324 OF 2009. ( Sub Divisional Officer and another -: versus :- Gautam Pundlik Sardar ) 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. DATED : DECEMBER 9, 2009. Heard finally by consent of learned A.G.P. for petitioners and Mrs. A. Joshi, learned counsel for respondent. The respondent had worked between 1986 to 1992 and he has been given reinstatement with continuity, but without back wages by impugned award dated 07.11.2008 delivered by the Labour Court, Yavatmal. The learned A.G.P. for petitioner states that, though notice to produce document was given, the relevant records could not be produced within time before the Labour Court and hence inference of completion of 240 days has been drawn. According to him mere non production of document could not have resulted in drawing of such inference and the positive burden in this respect needed to be discharged by respondent. Without prejudice to this submissions and in the alternative learned A.G.P. states that if the matter is 2 remanded back to Labour Court, petitioners will produce the necessary documents, if available, before the Court to substantiate their contentions. Mrs. Joshi, learned counsel for respondent is strongly opposing the request. She points out that a person on daily wages is never given any appointment order and there no documents with him to show that he has worked for any particular duration. The documents are always with the management and hence respondent has called upon his employer to produce the documents. Inspite of said notice, documents were not produced and hence Labour Court has accepted the statement on oath made by the respondent and found that he has completed service of 240 days. She therefore, contends that in such circumstances, if alternative arguments of learned A.G.P. is granted, it would amount to permitting government to fill in lacunae. I find that as per the findings recorded in award, the respondent has worked from 1986 to 1992 i.e. only for a period of about 6 years. Admittedly, he was on daily wages and relevance of this service with the relief of reinstatement because of subsequent judgment of Hon’ble Apex Court needs to be looked into. That exercise has not been undertaken by the Labour Court. In any case, the employment with petitioners is Public Employment and for relief of any reinstatement in it, the respondent employee has to show his entitlement. The documents of his work with petitioners cannot be fabricated and if available, will throw light on his entitlement to such relief. The respondent in that situation will be in a position to point out not only completion of 240 days, but also violation of Section 25[g], by bringing on 3 record positive evidence. It is no doubt true that the petitioners are getting second opportunity, but considering the nature of employment, in present matter I am inclined to grant that opportunity. The prejudice to respondent can be taken care of by directing petitioner to provide work on daily wages as before, to him during the pendency of the proceedings before the Labour Court. Acceptance of said work shall not affect any rights or contentions of present respondent and also shall be without prejudice to the rights and contentions of present respondent and also shall be without prejudice to the rights of petitioners in the matter. Thus, the arrangement to provide work shall be purely provisional arrangement. The impugned order dated 07.11.2008 delivered by the Labour Court, Yavatmal in Reference IDA No. 31/1997 is quashed and set aside. Said Reference proceedings are restored back to the file of Labour Court with direction to it to proceed further with trial in accordance with law, after giving parties opportunity to file documents and to amend their pleadings, if necessary. As the matter is old, the Labour Court shall attempt to decide the proceeding as early as possible and in any case by 31.12.2010. The petitioner shall however, pay cost of Rs. 3000/- to respondent before Labour Court by 15.01.2010. If the costs are so paid, the court below shall permit them to produce necessary documents and shall proceed further with the adjudication. If the costs are not paid, the impugned judgment shall revive. The petitioner shall during the pendency of the 4 proceedings before the Labour Court provide work as before to respondent without prejudice to the right of parties as mentioned above. Writ Petition is allowed in the aforesaid terms. Rule accordingly. No costs. JUDGE Rgd.