1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No.3884/2010 Awdhut B. Mandape Vs. The Executive Engineer, P. W. D. and another Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. N. R. Saboo, Adv. for petitioner. Ms. R. Deshpande, AGP for respondents 1 and 2. CORAM : B.P. DHARMADHIKARI, J. DECEMBER13, 2010. This Court issued notice for final disposal. Short contention of Advocate Saboo is that petitioner has proved continuous service for more than 240 days and he also sought production of records from employer. Then employer malafide came up with a plea of absence of such records petitioner adduced evidence and in cross-examination though availability of records is established, the Labour Court has overlooked that evidence. Learned AGP states that Labour Court has rightly considered the dispute about date of entry into service and also about continuation and as burden upon the petitioner, the finding has been correctly recorded. According to her, petitioner has failed to show that he had worked continuously for 240 days prior to his termination. Perusal of impugned award shows that the notice to produce documents i. e. original muster roll, payment voucher and seniority list was given as per Exhibit 22. Labour Court has passed order and employer denied availability of documents and 2 contended that workman has to prove existence and possession of those documents. The Labour Court has found that in his evidence workman remained silent about existence and possession of those documents with employer. Because of this material and application of mind, it has recorded finding that completion of 240 days has not been established. It is also noticed by it that at one place workman stated that he has joined on 1/4/1985 while in his evidence he stated that he joined on 17.10.1983. The reference was about termination from 1.4.1987. There is also some dispute about that date on record. However, date of entry is not relevant because after 1.4.1985 also till 30.4.1987 the petitioner could have put in 240 days continuous service. Similarly, cross-examination of respondent employer's witness shows that after going through the records of employer, petitioner's working from 1.4.1987 to 30.4.1987 was admitted by him. He has further stated that workman was working on daily wages at the time of his termination and he was being paid salary in every week. However, date of entry is not relevant because after 1.4.1985 also till 1.4.1987 the petitioner can complete 240 days continuous service. Respondent's witness has further stated that no salary was paid for Sunday. The non-publication of seniority list is also accepted by him. The petitioner gave three names in reference as junior still retained and in oral evidence has added some more names. Those names of alleged juniors were put to this witness and witness has expressed ignorance about their employment. In this situation, it is apparent that this cross- 3 examination or its effect is overlooked by Labour Court. It is also apparent that respondent-employer had with it relevant documents and those documents were malafidely suppressed by the employer. However, because of confusion created by petitioner himself, I am inclined to give respondent an opportunity to produce those documents before the Labour Court. The respondent employer shall produce documents revealing payment of salary and also attendance register in which attendance of petitioner was marked before Labour Court by 31st January 2011. The Labour Court shall permit parties to lead additional evidence, if any, after such documents are produced and thereafter shall decide the reference proceedings afresh in accordance with law. Award dated 27.11.2009 delivered by Presiding Officer of Labour Court, Amravati in Reference (IDA) No.230/1995 is quashed and set aside for said purpose. Proceedings are restored back to its file for its fresh decision as mentioned above. Rule is made absolute accordingly. No costs. JUDGE Ambulkar