1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 2233/98 State of Rajasthan Vs. Ram Lal & Anr. ......... Date of Order : 05/02/2009 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Vimal Kumar Mathur, Addl. Govt. Counsel for the petitioner. Mr. Narendra Singh Rajpurohit for the respondent-workman. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner has challenged the award Annex.5 dated 02.11.1996 passed by respondent No.2, Judge, Industrial Tribunal Cum Labour Court, Udaipur (for short 'the Labour Court' hereinafter) whereby the reference made to the Labour Court came to be adjudicated and the Labour Court held that the termination of services of the respondent workman by the petitioner employer was illegal and therefore, was not valid and the petitioner was directed to reinstate the respondent workman in service with continuity of service, payment of unpaid 2 salary and consequential benefits. I have heard learned counsel for the parties. It is contended by learned Additional Govt. Counsel for the petitioner that the respondent Labour Court fell in error in holding that the respondent workman has completed 240 days in a calendar year. According to the petitioner, the workman did not work for 240 days in a Calendar year and therefore, the award is bad in law. Learned counsel appearing for the respondent workman supported the award impugned and contended that the respondent workman was engaged on the post of Beldar with effect from 01.01.1981 and continuously worked till his services came to be terminated on 31.10.1988 and as such he has continuously worked for 240 days in a calendar year. According to learned counsel for the respondent workman, the details of the work undertook by the respondent workman have been given in the statement of claim and affidavit of the workman and the petitioner employer failed to produce the muster-roll and therefore, adverse inference is required to be drawn against the petitioner employer. Learned counsel for the respondent workman has also relied on a decision of Hon'ble Supreme Court in M.P. Electricity Board and Ors. Vs. Maiku Prasad, AIR 2009 SC 240. I have given my thoughtful consideration to the rival 3 submissions made by learned counsel for the parties. From the perusal of the award, it appears that the respondent workman came with a case that he was engaged as Beldar on 01.01.1981. As against the contention of the workman, the petitioner employer came with a case that the workman was engaged on 13.11.1982 as daily rated worker on muster-roll. Before the Labour Court, the petitioner employer filed certain muster-rolls but failed to submit the muster-rolls for the entire period for which the respondent workman claimed to have worked. According to the respondent workman, he worked from 01.01.1981 to 31.10.1988 which is indicative from the fact that the petitioner employer has filed various muster-rolls for the years 1982, 1983, 1984, 1985, 1986, 1987. This clearly goes to show that the respondent workman had worked for all those years and muster-rolls which were filed by the petitioner employer were only for few months and the petitioner employer has not filed all the muster-rolls for the period for which the respondent workman worked and in the circumstances, therefore, it was proper to draw an adverse inference for not filing the muster-rolls. Relying on the evidence produced by the respondent workman, the Labour Court held that the respondent workman has completed 240 days in a calendar year and his services have been terminated without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947. In 4 my view, the finding of fact arrived at by the learned Labour Court calls for no interference. However, in the facts and circumstances of the case, in my view, while maintaining the order of reinstatement with continuity of service, the order directing to pay the balance amount of salary and consequential benefits deserves to be modified to the extent that the respondent workman is entitled for 50% back wages from the date of reference. Consequently, while maintaining the award impugned to the extent of directing reinstatement of the workman with continuity of service, the order impugned is modified to the extent that the respondent workman is entitled for 50% back wages from the date of reference. With this modification, the writ petition is disposed of. Stay petition also stands disposed of. (H.R.PANWAR), J. rp