1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5749 OF 1996 Devidas s/o. Madhavrao Dhadve, Age 35 yrs., Occu. Unemployed, R/o. Nanded. C/o. Trade Union Centre, Mahavirnagar, Nanded. ....Petitioner. Versus 1. The Executive Engineer, Purna Jal-wapar Project, Division, Anandnagar, Nanded. 2. The Executive Engineer, Purna Patbandhare, Basmathnagar, Dist. Parbhani. 3. State of Maharashtra, Mantralaya, Bombay. (through G.P. High Court.) ....Respondents. Shri. G.M. Jadhav, Advocate for the petitioner. Shri. S.K. Kadam, AGP for the respondent Nos. 1 to 3. CORAM : R.K. DESHPANDE, J. DATE : 21st November, 2009 ORAL JUDGMENT : 1. This petition challenges the award dated 28.6.1996, passed by the learned Judge of the Labour Court, Jalna in Reference IDA No. 44/90. The Reference is answered in the negative and hence, the present Writ Petition has been filed. 2. The Labour Court has recorded a finding that the employee has failed to establish that he has been continuously working for 240 days preceding one year from the date of termination of his service and 2 therefore, the question of attracting the provisions of Section 25 (F)(G) (H) of the Industrial Disputes Act, does not arise. 3. The learned counsel for the petitioner, Shri. Jadhav has contended that the employee has been working continuously from 6.10.1985 to 6.8.1987 and from 7.8.1987 his services were terminated. The employee has entered in the witness box and stated that he was working continuously from 6.10.1985 to 6.8.1987, without break. He further stated that although, an application was made for production of documents, no orders were passed on that. Although the respondents denied the fact of completion of 240 days continuous service, the statement produced on record by them, shows that the employee has completed 216 days. However, according to the learned counsel for the petitioner, the respondents have failed to establish their case that the employee has worked for only 216 days. The respondents have not entered in the witness box and therefore, the findings recorded by the Labour Court are perverse. Therefore, according to the learned counsel for the petitioner, the plea of the complainant, which is supported by his own statement in the affidavit, should have been accepted by the Labour Court. 4. It is well settled that the burden is upon the employee to establish his claim that he worked 240 days continuously in service without break. It is also well settled in view of the decision of the Apex Court reported in 3 AIR 1996 SC 1001 State of Rajasthan Vs. Rameshwarlal Gahlot, that merely because the employee has entered in the witness box and deposed that he has been continuously working for 240 days, is not enough to substantiate his claim. Except his own statement, there is nothing on record to establish that the petitioner has completed 240 days continuous uninterrupted service, prior to the date of his termination. Thus, the employee has failed to discharge this basic burden. 5. The contention of the learned counsel for the petitioner that the respondents have taken a stand that the complainant has completed 216 days continuous service, which is short of 240 days, is not substantiated by producing any evidence on record. The respondents have not examined any witness and they have failed to produce the muster roll and other documents, which were in their possession and the Labour Court should not have accepted the stand of the respondents, to reject the Reference. It is also well settled in view of the decision of the Apex Court reported in (2004) 8 SCC 248, M.P. Electricity Board v. Hariram that merely because an application is made for production of documents, that by itself is not enough and the employer is not under the obligation to produce such document unless the case is made out for that purpose and the order is passed by the Labour Court, directing the production of documents. If any such direction had been issued by this Court to produce the document and if the employer had failed to 4 produce such document pursuant to such direction, then the matter would be different. However, in the present case, the Labour Court has recorded a specific finding in para 9 of the judgment that the employee has not pressed for passing the order on this application, notice U-8. Be that as it may, the employee himself has to stand on his own legs and to establish his case. The employee/complainant has failed to establish his case. Therefore, the Labour Court was right in rejecting the Reference. 6. Shri. Jadhav, the learned counsel for the petitioner, has relied upon the decision of the learned Single Judge of this Court reported in 2004 (4) ALL MR 392, Nashim S. Chand V. Director, Vocational Education and Training & Anr. This was the case, where the Labour Court on the basis of the evidence led before it granted the petitioner reinstatement with continuity of service, but the backwages were denied. The Industrial Court reversed the finding of the Labour Court and came to the conclusion that the order of the Labour Court was not based on the oral and documentary evidence on record. By placing reliance upon the documents, the Industrial Court came to the conclusion that the petitioner employee had not completed 240 days in service in a calendar year and therefore, was not entitled to either notice or wages in lieu of notice or retrenchment compensation when her services were terminated. The learned Single Judge of this Court held that despite the orders of the Labour Court the respondents refused to 5 produce the muster rolls for the entire period. It was also observed that the Labour Court had also considered the fact that the witness of the respondents had no personal knowledge about the working of the petitioner and therefore, the oral evidence on behalf of respondent No. 1 could not be accepted and the muster rolls would have been most relevant for the period. In the light of this factual position, this Court reversed the findings recorded by the Industrial Court and restored the order passed by the Labour Court in respect of reinstatement of petitioner with continuity of service without backwages. This case can be distinguished on the ground that there was an order passed by the Labour Court, directing the respondents to produce the muster roll and thereafter, since the respondent employer failed to produce the muster roll, the Court had drawn the adverse inference to record a finding that the employee had completed 240 days continuous service. However, in the present case, as earlier pointed out that the Labour Court has specifically recorded a finding that although notice Exh. U-8 was filed for production of documents, workman did not press for passing the order on such notice. In view of this, the judgment is not applicable in the present case. 7. In the result, there is no substance in the present petition. The same is, therefore, dismissed without any orders as to costs. [ R.K. DESHPANDE, J. ] 6 ssc/wp5749.96