IMPORTANT POINT
Burden to prove that the worker has worked for 240 days in 12 calendar months before his termination lies on the worker.

JUDGMENT :

Dr. Arijit Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the Karnataka High Court allowing the writ appeal filed by the respondent. By the impugned judgment the Division Bench set aside the order passed by a learned Single Judge and the award made by the Labour Court.

3. Background facts in a nutshell are as follows:

The workman had been working as a daily wage employee with the Krishna Bhagya Jala Nigam Limited (for short the `Jala Nigam) which, at the relevant point of time was executing the Upper Krishna Project in the State of Karnataka. His services were allegedly terminated which gave rise to an industrial dispute. According to the claim made by the workman he served the Jala Nigam from 29.10.1989 to 1.4.1996. He further claimed that his services were terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act 1947 (for short the Act). A reference under Section 10(1) (c) of the Act was made to the Labour Court, Gulbarga. Several other employees had also challenged the termination of their services and other references had been made to the Labour Court and some of the employees had also filed applications before it under sub-section (4-A) of Section 10 of the Act. The reference made at the instance of the workman was contested by the Jala Nigam and on a consideration of the oral and documentary evidence led by the parties, the Labour Court recorded a finding that the services of the workman had been terminated without complying with the provisions of Section 25-F of the Act and therefore the termination was illegal. Accordingly the termination was set aside and the Jala Nigam was directed to reinstate the workman with full back wages and continuity of service. This award came to be challenged by the Jala Nigam in W.P. No.40822/1999. This writ petition was heard along with the writ petitions filed in the case of other workmen as well and all the writ petitions were disposed of by the learned single Judge by a common order. In the case of other workmen there was considerable delay in raising the industrial dispute and therefore the learned single Judge non-suited them on that ground. In the case of the workman the Labour Court observed that there had been no delay but the provisions of Section 25-F of the Act had not been complied with and therefore the termination was wrongful. The learned single Judge set aside the award of the Labour Court holding that there was no evidence before it indicating that the workman had ever been in the service of the Jala Nigam. According to the learned single Judge, the workman had not discharged the initial onus of proving that he had worked for more than 240 days with the Jala Nigam and therefore the award directing his reinstatement was illegal. The writ petition was allowed and the award of the Labour Court set aside. It is against this order of the learned single Judge that a writ appeal was filed before the Division Bench. By the impugned judgment, the writ appeal was allowed.

4. Learned counsel for the appellant submitted that the basic approach of the High Court is erroneous. It proceeded on the basis as if the period of employment/engagement of a workman has to be established by the employer. There is no appearance on behalf of the workman.

5. Learned counsel for the respondent-workman supported the judgment of the High Court.

6. 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