important point
Onus to prove the hours for which he worked in a calendar year is on the workman.

judgment

Dr. Arijit Pasayat, J. –

1.Challenge in this appeal is to the judgment of a Division Bench of the Rajasthan High Court, Jaipur Bench, dismissing the Special Appeal filed under Section 18 of the High Court Ordinance Act, 1949 (in short the ‘High Court Act’). In the Special Appeal challenge was to the order passed by a learned Single Judge in SB Civil Writ Petition No. 3514 of 2005. The learned Single Judge had upheld the award made by the Central Government Industrial Tribunal, Jaipur (in short the ‘Tribunal’).

Background facts in a nutshell are as follows:

Respondent made grievance that his services were illegally terminated with effect from 13.10.1998. His case was that he had worked continuously from 1987 till 1998. He worked for 240 days in a calendar year. Therefore, his services could not have been terminated without complying with the requirements of Section 25-F of the Industrial Disputes Act, 1947 (in short the ‘Act’).

Appellants took the stand that the respondent was engaged on a purely temporary basis and was engaged for doing part time work on some days. The question of his having worked for more than 240 days is not therefore relevant. He was actually engaged for 2 to 3 hours a day on some days. It was pointed out that there was no such post of Safaiwala ever created and, therefore, the claim was thoroughly mis-conceived.

The following reference was made to the Tribunal:

“Whether the action of management of Telecommunication Department in terminating the services of workman Sh. Mahesh Chand w.e.f. 13.10.98 was legal and justified? If not, what relief the workman is entitled and from what date?”

By its award dated 29.9.2004 the Tribunal came to hold that the claim of the respondent was that he had worked for five hours a day and therefore was entitled to be regularized as a regular Safaiwala. Accordingly, it was held that termination of the respondent from service is illegal and he is entitled to be re-instated with continuity in service but without back wages.

Learned Single Judge of the High Court as noted above dismissed the writ petition filed.

2.Learned counsel for the appellants submitted that the casual and part time nature of the engagement is evident from the fact that some times the mother and some times the wife of the respondent was engaged. The Tribunal noted the claim of the respondent that respondent was being paid Rs.8/- per day. Even according to his own, the respondent, which has also not been accepted by the present appellants, was working for five hours a day.

3.Learned counsel for the respondent on the other hand has submitted that he was working for nearly 8 hours every day and, therefore, the orders of the Tribunal and the High Court cannot be faulted.

4.On the question of whether the respondent had worked continuously for 240 days in a calendar year the Tribunal and the High Court have wrongly placed the onus on the employer to prove the negative. This is clearly contrary to the decision of this Court.

5.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,1 (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