1 D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1468/2007 State of Rajasthan Vs. Duli Chand & Anr. Date of Judgment :: August 06, 2008. HON'BLE THE CHIEF JUSTICE MR.NARAYAN ROY HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. S.S. Sharma, Govt.Counsel for the appellant(s). Mr. D.C. Gupta for the respondent no.1. *** This appeal is directed against the judgment of the learned Single Judge dated 27.7.2007 dismissing thereby the writ petition filed by the appellant. In the writ petition, the appellant had challenged the award dated 6.6.2000 passed by the labour court, Bharatpur. The Appropriate Government made a reference to the labour court on the question whether termination of the services of the respondent-workman by the appellant with effect from August 1985 was valid or not and if it not, what relief was he entitled to. The learned labour court by the award dated 6.6.2000 answered the reference in the terms that termination of the services of the respondent- workman by the appellant was made in violation of Section 25-F of the Industrial Disputes Act and accordingly held him entitled to reinstatement with continuity in service and 1/3rd of the back-wages from 24.4.1993. Learned counsel for the appellant has argued that the learned labour court was not justified in drawing inference against the appellant on the premise that they had not produced muster-roll for November 1984, March 1985 and May 1985, particularly when the muster- rolls for the period from September 1984 to August 2 1985 except these three months were produced. The burden of proof as to how many number of days the respondent-workman worked lay on the respondent and not on the appellant. The respondent-workman has simply filed his affidavit and did not adduce evidence. The appellant submitted that whatever muster-rolls were available with them had been produced and since the muster-rolls of the other three months were not available, they could not be filed. Subsequently, the muster-roll of March 1985 became available which did not indicate that the respondent was engaged on any day. The learned Single Judge was also not justified in upholding the award of the learned labour court without considering all these aspects of the matter. Learned counsel for the respondents opposed the appeal and submitted that question whether the respondent-workman worked for 240 days or not was essentially a question of fact and when the labour court as also the learned Single Judge found this fact proved, no interference can be made by this Court, particularly when there is no perversity in findings recorded by the labour court. It was argued that when the appellants were able to produce all muster-rolls from September 1984 to August 1985 except these three months, the labour court was justified in drawing inference against them because if they had been produced, the appellants working for 26 days in each of these months would have been proved. Having heard learned counsel for the parties and perused the award as also the impugned judgment of the learned Single Judge, we find that the labour court on the basis of nine muster-rolls for the relevant period, which were produced, found that working days of the respondent came to 194 days and by drawing 3 adverse inference against the appellant for three months included 26 days for each of the three months, thus, came to the conclusion that the respondent workman worked for a total of 272 days. It was on that basis that the learned labour court held that there was violation of Section 25-F of the Industrial Disputes Act. We are not persuaded to uphold the arguments that the burden of proof entirely lay on the respondent- workman that he worked for more than 240 days. When the respondents could produce the muster rolls of nine months, non production of the muster rolls for three months in question was certainly a factor which weighed against them and the appellants also could not give satisfactory explanation for non-production of these muster rolls. Learned labour court, in our view, was therefore justified in drawing adverse inference against the appellant to come to the conclusion that there was violation of Section 25-F of the Industrial Disputes Act. We further find that the learned Single Judge has already modified the award on the question of back wages and directed that the respondent-workman shall not be entitled to any back wages for the period prior to the date of award. We, therefore, do not find any infirmity in the award passed by the learned labour court as also in the judgment passed by the learned Single Judge so as to warrant interference by the Division Bench. This appeal, which lacks merit, is accordingly dismissed. (MOHAMMAD RAFIQ),J. (NARAYAN ROY),CJ. Skant/-