IMPORTANT POINT
Burden of proof lies on workman to show that he had worked continuously for 240 days for the preceding year.

JUDGMENT

Arijit Pasayat, J. — Appellants challenge correctness of the judgment rendered by a Division Bench of the Gujarat High Court dismissing the Letters Patent Appeal filed by the appellants. By the impugned judgment the Division Bench upheld the decision of learned Single Judge.

2. Background facts in a nutshell are as follows :

3. State of Gujarat had made a reference to the Labour Court, Surendra Nagar under Section 10 of the Industrial Disputes Act, 1947 (in short the ‘Act’) basically on the question whether the alleged termination of the services of the respondents was valid. Claim of the respondents was that they had worked for various period beyond 240 days in each of the years right from the beginning and therefore, the discharge from service of the respondents by oral intimation was not valid. Appellants refuted the stand by stating that the nature of the work was purely on daily wages basis depending upon both on work and funds. They specifically pleaded that none of the respondents had completed 240 days in any of the years right from beginning. As work was not available they were orally asked not to come for work, and there was thus no retrenchment or termination.

4. There was no appearance on behalf of respondent in spite of notice.

5. The labour court noted that the details pertaining to attendance of the respondent have been produced, and zerox copies of the salary register and muster roll have also produced. The labour court came to hold that the workman’s plea in each case that he had worked for various periods for more than 240 days in a year was established and there was non-compliance of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (in short the ‘Act’) and as such termination was illegal. They were awarded back wages. The writ petitions filed were dismissed and so was the Letters Patent Appeal as indicated above.

6. It is to be noted that the Labour Court and the High Court proceeded on the basis as if the burden of proving that the concerned employee has not worked for 240 days in the preceding year immediate to the date of termination lies on the employer.

7. The view expressed by the High Court is clearly untenable.

8. In a large number of cases the position of law relating to the onus to be discharged has been delineated. In Range Forest Officer v. S.T. Hadimani (2002(3) SCC 25), it was held as follows :

“2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10.8.1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year.

3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an “industry” or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar (2001) 9 SCC 713. In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come t