1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.948/02 State of Rajasthan & Anr. vs. Jagdish Puri & Anr. Date of order : 29/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Zakir Hussain, Addl. Govt. Counsel for the petitioner. Shri Rajesh Mootha for the respondent. ****** REPORTABLE Heard learned counsel for the parties. This writ petition has been filed challenging the award passed by the Labour Court, Bharatpur dated 25.4.2001. The Labour Court by the aforesaid award answered the reference on the question of validity of retrenchment of the respondent-workman in the terms that his removal by the petitioners from their services was illegal and therefore he would be entitled to reinstatement with 75% back wages and continuity of service. Shri Zakir Hussain, learned Additional Government Counsel for the petitioners argued that the Labour Court has held that the respondent-workman completed 240 days. It was argued that while the respondent- 2 workman did not at all produce any evidence, the order was passed by Payment of Wages Authority on 16.9.92 directing to pay to the respondent-workman wages for the month of March, 91, June, 91, July, 91, August, 91 for a total number of 123 days, was taken as a proof of his workings, whereas the fact was that the petitioners were disputing the working of the respondent and that the aforesaid order was passed by the Payment of Wages Authority because of the inability of the petitioners to defend their case and it was an ex-parte order. Even if that order attained finality, the evidence that was otherwise led or was required to be led by either of the parties would not be overlooked by the Labour Court just because the aforesaid ex-parte order was passed by the Payment of Wages Authority. It was argued that the Labour Court has also not based its findings on any evidence but has drawn adverse inference against the petitioner for non production of the muster roll of the month of April, 1991. It was argued that that total working of the respondent was just 90 days in the month of 3 December, 1990, January, 1991, February, 1991 and May, 1991. Burden of proof is also on the workman to show that he actually worked for 240 days and even if there was failure on the part of the petitioner to produce the muster roll of April, 1991 or for other month within the callender year, immediately preceding the date of retrenchment, the evidence was required to be analysed by the Labour Court independent of the order passed by the Payment of Wages Authority. Shri Rajesh Mootha, learned counsel appearing for the respondent opposed the writ petition and argued that the documents, other evidence and record relating to the working of the respondent-workman were in the exclusive possession of the petitioners and the respondent produced whatever evidence he had and also asserted in his affidavit that he worked for 240 days aforesaid. The petitioner failed to produce copy of the muster roll of April, 1991 in spite of the order and therefore adverse inference was rightly drawn against the petitioners by Payment of Wages Authority in 4 its order dated 16.9.1992, which had attained finality because that was not challenged further by the petitioners, therefore, now they cannot be allowed to say that the respondent-workman did not work with them during the aforesaid period. It is therefore prayed that the writ petition be dismissed. Having heard the learned counsel for the parties and perused the award and also other material forming part of record, I find that the affidavit of the witness Badri Prasad was produced by the management to show that respondent-workman worked only for 90 days with the petitioners. Even though the order passed by the Payment of Wages Authority would be a factor to be taken into consideration by the Labour Court, but at the same time, this has to be analysed keeping in view the fact that this was ex- parte order where the management had not adduced any evidence. In spite of ex-parte awarded passed against the management, the evidence that has now produced before the Labour Court, which is an independent proceeding, could not be overlooked and 5 brushed aside. What would be the effect of the order passed by the Payment of Wages Authority would have to be appreciated while considering the weight of evidence for the aforesaid period of 4 months. This fact has indeed weighted heavily with the Labour Court in coming to the conclusion that the respondents has worked 240 days in the callender year. Even otherwise, the Labour Court ought to have also analysed the law on the question of burden of proof and then decide as to if the burden entirely lay upon the petitioner-management to prove that the respondent worked with them for 240 days. That would in fact tantamount to requiring the petitioner-management to prove that the respondent did not work 240 days. In the facts of the case, therefore, in my considered view, the matter requires reconsideration by the Labour Court on all these aspects. The writ petition is allowed. The impugned orders are set aside and the matter is remanded back to Labour Court to decide it afresh in accordance with law. Since the termination pertains to the year 1991, the 6 Labour Court is directed to conclude the proceedings within a period of one year from the date copy of this order is produced before it without granting unnecessary adjournments to either of the parties except for justified reasons. (MOHAMMAD RAFIQ), J. RS/