THE HON'BLE Ms. JUSTICE G.ROHINI WRIT PETITION No.4067 OF 1999 Dated: 10.03.2011 Between: M/s. Rolmor Chains Division ..... Petitioner And The Hon’ble Labour Court-II and others ….. Respondents The Court made the following:- THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.4067 OF 1999 O R D E R : This writ petition is filed seeking a Certiorari to call for the records relating to the award dated 03.12.1998 in I.D.No.46 of 1994 on the file of the Labour Court-II, Hyderabad and to quash the same being arbitrary and illegal The facts in brief are as under: The 2nd respondent herein (hereinafter referred to as ‘workman’) joined the services of the writ petitioner (hereinafter referred to as the ‘employer’) in the month of June 1991. Contending that his services were terminated illegally, the workman filed I.D.No.46 of 1994 under Section 2A(2) of the Industrial Disputes Act, 1947 (for short, ‘the Act’). The employer filed a counter contending that he was never issued any appointment order and that he was engaged only on casual basis depending upon the exigencies of the work and therefore discontinuance of his services was neither arbitrary or illegal. After hearing both the parties, the labour Court recorded a finding that the employer while terminating the services of the workman did not issue any notice nor paid one month wage as required under Section 25-F of the Act. Accordingly, the termination order was set aside and by award dated 03.12.1998, reinstatement as a fresh recruit was ordered. However, back wages and other attendant benefits were denied. Aggrieved by the same, the employer filed the present writ petition. This Court while directing rule nisi, by order dated 01.03.1999 granted interim suspension of the impugned award. Despite notice, the 2nd respondent/workman did not choose to appear. I have heard the learned counsel for the petitioner and perused the material available on record. It is the specific case of the writ petitioner/employer that M/s. Rolmor Chains Division was a division of M/s. Tube Investment of India Limited, which is a company registered under the Companies Act, 1956. The workman was initially appointed by M/s. Satavahana Chains Limited in the month of June, 1991. During the year 1992 M/s. Tube Investment India Limited took over the said M/s. Satavahana Chains Limited under a rehabilitation scheme formulated by the Board for Industrial and Financial Reconstruction under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 and thereafter the said unit was called as M/s. Rolmor Chains Division of Tubes Investment India Limited. Though the fact that the workman was engaged on casual basis on daily rate was not disputed, it was pleaded that his services were utilised depending upon exigencies of work till about April, 1994 and thereafter the workman himself failed to offer himself for casual engagement. The allegation that the services of the workman were disengaged had been categorically denied. It is contended before this Court that there was no disengagement of the services of the 2nd respondent and consequently, the finding that the alleged termination was illegal for non-compliance of Section 25-F of the Act was untenable. It is also contended that the 2nd respondent had not worked for 240 days continuously to make himself eligible for the benefit of Section 25-F. As could be seen from the impugned order, the workman got himself examined as WW.1 and marked Ex.W1 document before the Labour Court. On behalf of the employer MW.1 was examined and Exs.M1 to M12 documents were marked. One of the important documents filed on behalf of the employer was Ex.M12 which made it clear that the 2nd respondent/workman was engaged only a casual labour. Moreover no material could be produced by the workman to show that his services were terminated on 03.04.1994. However, as the management failed to produce the records pertaining to June, 1991 to December, 1991, the labour Court presumed that the 2nd respondent’s termination was illegal. As held by the Supreme Court in Range Forest Officer vs. S.T.Hadimani[1] since the plea of the workman that he worked for 240 days in a year was disputed by the employer, it was for the workman to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. No such evidence could be produced by the 2nd respondent/workman before the labour Court. It was also held in Municipal Council, Sujanpur vs. Surinder Kumar[2], U.P.State Brassware Corpn. Ltd. And another vs. Uday Narain Pandey [3] and State of M.P. and others vs. Arjunlal Rajak[4], that the burden of proof to establish non-completion of 240 days of work within a period of 12 months preceding the termination was on the workman, but not on the management. In the instant case, the 2nd respondent has miserably failed to discharge the burden placed on him. Apparently the findings recorded by the Labour Court were not supported by any evidence on record. Hence, the findings recorded by the labour Court cannot be sustained and consequently the impugned award is liable to be set aside on that ground alone. Since no case could be made out to show that the workman worked for more than 240 days in a year and no case could be made out to show that the employer had violated the statutory provisions of any statute or the rules made thereunder and moreover there was no material to show that he was appointed against any sanctioned post, the workman/2nd respondent herein was not entitled even for a direction for appointment as a fresh recruit. For the aforesaid reasons, the impugned award is hereby set aside and the Writ Petition is allowed. No costs. ____________ G. ROHINI, J Date: 10.03.2011 Ivd [1]( 2002) 3 SCC 25 [2] (2006) 5 SCC 173 [3] (2006) 1 SCC 479 [4] (2006) 2 SCC 711