1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3717 OF 2009 Ashok s/o Jaidrath Dhiware, R/o-Ellora, Tq-Khultabad, Dist-Aurangabad. ...PETITIONER. VERSUS 1) The Senior Executive Regional Office, Maharashtra Tourism Development Corporation Ltd., Holiday Resort, Station Road, Aurangabad, 2) The Manager, ITDC Limited, C/o- Maharashtra Tourism Development Corporation Ltd., Holiday Resort, Station Road, Aurangabad. ...RESPONDENTS. ... Mr. R.V. Gore Advocate for Petitioner. None present for Respondent No.1. Mr.V.N. Dankh Advocate for Respondent No.2. ... CORAM: K.K. TATED, J. DATE : 16TH SEPTEMBER, 2009. PER COURT : 1. Heard learned counsel for the Petitioner and for Respondent No.2. Though the Respondent No.1 is served, 2 no one appeared on behalf of them when the matter called out for hearing. 2. By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner - original complainant challenges the order dated 20th May, 2009 passed by Member, Industrial Court, Aurangabad in Revision (ULP) No.33 of 2008 arising out of the Judgment and order dated 19th March, 2008 passed by Judge, Labour Court, Ahmednagar in Complaint (ULP) No.414 of 1993. 3. It is the case of the Petitioner that he worked with Respondents for more than 240 days and therefore he is entitled to continue in service. It is the case of the Petitioner that without considering these facts, the Respondents terminated his services by letter dated 13th July, 1984. He further submitted that both the Courts below failed to appreciate that the Petitioner completed continuous service of 240 days in each calendar year and this fact remained unchallenged. On the basis of these submissions, learned counsel for the Petitioner states that impugned orders passed by both the Courts below are liable to be set aside and his Complaint under Section 3 28 of the M.R.T.U. and P.U.L.P. Act, 1971 to be allowed. 4. On the other hand learned counsel for Respondent No. 2 states that the Petitioner worked with them only for 20 days in the year 1984 on daily wages basis. Thereafter as the Petitioner's services were not required by Respondent No.2, they issued letter dated 13th July, 1984 discontinuing the Petitioner from their services with effect from 14th July, 1984. Learned counsel for Respondent No.2 submitted that the Petitioner failed to produce any cogent evidence on record showing that he worked with them for more than 240 days continuously. He specifically pointed out from Para 11 of the order passed by the Labour Court, in which the Labour Court categorically held that the Petitioner failed to produce any cogent evidence on record to justify his claim. Not only that, the Industrial Court, after going through the record and proceedings, held that the Petitioner failed to produce any evidence on record to show that he worked for more than 240 days with Respondent No.2. Learned counsel for Respondent No.2 states that as the Petitioner failed to produce any evidence on record about completion of 240 4 days continuous work, he is not entitled to any reliefs. In support of his submissions, learned counsel for Respondent No.2 relied on the following Authorities: 1) R.M. Yellati vs. Executive Engineer, reported in A.I.R. 2006, Supreme Court, Page 355, 2) Krishna Bhagya Jala Nigam Ltd. vs. Mohammed Rafi, reported in 2007 (1) A.I.R. Jhar R. Page 301, 3) Sitaram and others vs. Moti Lal Nehru Farmers Training Institute, reported in 2008 A.I.R. S.C.W. Page 2256, 4) Hindustan Photo Films vs. H.B. Vinobha and another, reported in 2009 (II) C.L.R. Page 517, 5) Khashaba K. Jadhav vs. S.H. Kelkar and Company and another, reported in 2007 (1) C.L.R. Page 1006, 6) Sub Divisional Engineer, Irrigation Project, Yavatmal vs. Sarang Marotrao Gurnule, reported in 2008 L.I.C. N.O.C. Page 933 (Bom), 5 7) Khadi and Village Industries Commission, Thane vs. Jagdish Balkrishna Patil and another, reported in 2009 (1) Bom. L.C. Page 251 (Bom), 8) Dhara vs. Presiding Officer and another, reported in 2007 LAB. I.C. Page 1487, 9) Dy. Executive Engineer, Gujarat Water Supply & Sewerage vs. Sultankhan Mohabat Khan Baloch Care of Mahendra Kadiya, reported in 2007 LAB. I.C. Page 4248 10) U.P. Power Corporation Ltd. and others vs. Presiding Officer, Labour Court, U.P., reported in 2007 (6) A.L.J. Page 102. 5. In the matter of R.M. Yellati vs Assistant Registrar (supra) the Apex Court categorically held that it is the duty of the worker /claimant to show that he worked for 240 days in a given calendar year. Following observations are relevant to the present case from this Authority, which reads as under: "Analyzing the above decisions of this 6 court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the afore stated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the 7 claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case." 6. In the above mentioned facts and circumstances, it is crystal clear that the Petitioner has not made out any case for interfering in the orders passed by both the Courts below and therefore, Writ Petition is dismissed summarily. [K.K. TATED, J.] asb/SEPT09/wp3717.09