ORDER

1. In this appeal the appellant management challenges an award made by the Labour Court, Akola, Maharashtra whereby the Labour Court came to the conclusion that the inquiry conducted against the respondent herein was unfair inasmuch as the charge-sheet placed against the said respondent was vague and the said respondent was deprived of an opportunity to meet his case. Based on the said finding, the dismissal of the respondent was set aside by the Labour Court. In the said proceedings on behalf of the management it was contended alternatively that assuming that the inquiry held against the respondent was not in accordance with law still the appointment of the respondent was on the basis of a casual labourer and he having not put in 240 days of continuous work in a given year it was open to the management to terminate his services, since the same was not required by the management. The Labour Court answered that question against the management holding that the management has not produced any material to show that the respondent had not worked continuously for 240 days and that he was only a temporary employee.

2. The said award of the Labour Court was challenged before the High Court of Bombay at Nagpur which affirmed the same. From the impugned order of the High Court we do not find that any argument was addressed in regard to the right of the management to terminate the services of the respondent on the ground that the appointment of the said respondent was a casual appointment and he having not completed 240 days of work in a given year it was open to the management to terminate his services.

3. When leave was granted in this appeal the same was confined to the question whether the Labour Court was justified in placing the onus of proving whether the respondent has completed 240 days continuous work in a given year on the management or not?

4. We have heard Shri Sibal, learned counsel appearing for the appellant who has contended before us that even if the finding of the Labour Court in regard to the validity of the inquiry is correct still it was open to the management to have raised the issue of the nature of employment of the respondent and to establish this question the burden was on the workman concerned to prove that he has worked continuously for a period of 240 days in a year.

5. In our opinion, this alternative issue or question does not arise on the facts of this case at all. It is the case of the management that the respondent was dismissed after a departmental inquiry held against the respondent for an alleged misconduct and based on the finding in the said inquiry he was dismissed from service and it is not the case of the management that his services were not required and he being a casual employee his services were discharged simpliciter. Since the management has taken a specific stand in regard to the dismissal of the respondent, it was not open to the management to raise before the Labour Court alternative stand that the respondent was a temporary employee. In our opinion, that question does not arise for consideration on the facts of this case.

6. Shri Sibal, relied upon two judgments of this Court in the case of Range Forest Officer v. S. T. Hadimani1 and Essen Deinki v. Rajiv Kumar2 wherein this Court took a view that when a question arises in regard to the right of an employee to claim compensation under Section 25-F of the b Industrial Disputes Act, 1947 and it is for the workman to establish and prove that he had in fact worked for 240 days in the year preceding his termination so as to claim the benefit of the said section. But in the instant case that question does not arise as specific case of the management is that the services of the respondent were terminated for the alleged misconduct which was not accepted by the Labour Court. Shri Sibal, then contended that though the issue was not directly raised but the same was relevant to be considered by the Labour Court for the purpose of granting t