1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5485 OF 1996 The Chief Executive Officer, Zilla Parishad, Ahmednagar ....Petitioner. Versus Shri. Dagu Rambhau Wakchaure At & Post : Brahamangaon, Tq. Kopargaon, Dist. Ahmednagar. ....Respondent. Shri. S.T. Shelke, Advocate for the petitioner. Shri. A.S. Shelke, Advocate for the respondent. CORAM : R.K. DESHPANDE, J. DATE : 11th November, 2009 ORAL JUDGMENT : 1. This petition challenges the final award dated 31.5.1996 passed by the learned Presiding Officer and Judge, IInd Labour Court, Ahmednagar in reference (IDA) No. 22/1992 whereby the reference has been partly allowed and the petitioner/first party is directed to reinstate the employee/second party in service without any backwages, but with continuity of service. The facts leading to the case are as under :- 2. In a dispute under section 10 of the Industrial Disputes Act, 1947, 2 the respondent employee filed his statement of claim dated 22.6.1992 alleging therein that he was daily wage employee in service of petition employer with effect from 31.3.1979. However, he has been discontinued from service with effect from 5.10.1979. It was alleged that the termination was only to deprive the employee confirmation in service as per the provisions of Kalelkar award and the Government Resolution dated 10.7.1974. It was alleged that the termination was without giving notice and compensation and also the principle of seniority. It was alleged that there was no inquiry held against the said employee and after his termination, several other persons were employed and the claimant was denied the employment. The employee, therefore, claimed for setting aside the termination and reinstatement with backwages in service. 3. The petitioner employer filed its written statement, denying averments made in the statement of plaint. It was the stand taken by the employer that the employee has not completed 240 days continuous service and hence, the requirement of issuance of notice and payment of compensation was not attracted. It was the stand taken that the employee was appointed as and when the work was available and for a fixed period. 4. In support of his claim, the employee filed his own affidavit at Exh. U-6 in which he has stated that he has continuously worked 3 without break since 31.3.1979 till 4.10.1989 and his services were terminated with effect from 5.10.1989. He has further stated in h is affidavit that he has worked for an average period of 20 to 25 days in a month. The claimant filed an application dated 6.5.1994 (U-4), seeking direction to the employer to produce the muster roll (NMR) for the period from 1.3.1979 to 5.10.1979. He has further asked for production of copies of NMR for the period from August 1989 to December 1989 in respect of Kopargaon Division. He has also asked for resolution of Rural Development Department dated 10.7.1974 and also the copy of the seniority list dated 31.10.1979. The learned Judge of the Labour Court passed an order on 23.11.1994 as under :- "Advocate Ravle present. No say filed by other side. Documents seem to be relevant. First party directed to produce the documents at Sr.Nos. 1 to 3 and 4." 5. The employer filed a statement at Exh. C-17 indicating the number of days for which the employee/claimant worked from 1979 to 25.12.1988. The statement produced on record does not indicate that in any particular year, the employee has completed 240 days continuous service. Thus, the employer produced the zerox copies of the muster roll for the period up to 25.12.1988. The employer examined one Vithal Vishwanath Palkar. In cross examination, the said witness has stated that the second party i.e. the employee was employed as per the availability of the work and if work was not available, the second party was not employed. He has further stated that the musters for the period 4 1.10.1988 to 4.10.1988 are available and he undertook to produce the musters for the said period. He further stated that he did not see the muster from 1.10.1988 to 4.10.1989. He says that it is not true to say that the second party has worked with the first party till 4.10.1989. He further stated in his cross examination that he cannot tell the date of appointment without referring to record. 6. The learned Judge of the Labour court took in to consideration the fact that in spite of the directions to produce the documents, the employer has failed to produce the muster roll and seniority list on record and hence, an adverse inference was drawn to the effect that the employer has completed 240 days continuous service. So far as the aspect of seniority was concerned it was held that the employer has not followed the principle last come first go as stipulated under Section 25-G of the Industrial Disputes Act, 1947 and Rule 81 of the Industrial Disputes (Bombay) Rules. On the basis of this finding, it was held that the employee was entitled to be reinstated in service, as undisputedly there was non compliance of provisions of section 25-F and 25-G of the Industrial Disputes Act. 7. The only question is, whether the respondent employee has completed 240 days continuous service in the employment preceding to the date of his termination from service. The services of the respondent employee were terminated with effect from 5.10.1989. It is no doubt true 5 that the burden to establish that the employee has completed 240 days continuous service lies on the employee. It also cannot be disputed that mere statement of employee by entering in to witness box that he has completed 240 days service, is not enough to prove the fact. The learned Judge of the Labour Court has, however, relied upon the statement at Exh. C-17 filed by the employer, the evidence of the witness Vithal Vishwanath and the fact that the documents directed to be produced by the Court, were not produced on record. It is, on the basis of this material, finding of fact is recorded that the employee has completed 240 days continuous service prior to the date of his termination from his service. At any rate, the Labour Court has refused to grant for wages and has granted reinstatement with continuity in service. The finding of fact being based on the material available on record, it is the possible view of the matter. There is no case for interference in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India. The petition is, therefore, dismissed with no order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp5485.96