The burden of proof in cases of termination of services lies on the workman to show that he had worked for 240 days in a given year. The delay in seeking the reference under the Industrial Disputes Act should be reasonable and rational.

JUDGMENT :

Arijit Pasayat, J.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Punjab and Haryana High Court dismissing the writ petition filed by the appellants. By the impugned order learned Single Judge upheld the order passed by the Presiding Officer, Labour Court, Gurdaspur who held that the burden lies on the employer to prove that the workman had not worked for 240 days or more in the year immediately preceding the termination. The alleged date of termination is 13.11.1990. According to the respondent, he joined in November, 1989 whereas according to the appellant he joined in August, 1999. Demand for making the reference was made on 15.12.1999 i.e. after a long period of about 9 years. The workman was held to be entitled to full back wages from the date of demand notice i.e. from 25.2.1993 till his actual reinstatement as the termination of the services of the workmen with effect from 13.11.1990 was held to be illegal.

2. In support of the appeal learned counsel for the appellants submitted that the High Court has clearly lost sight of the fact that the claim was highly belated. No finding was even recorded by the Labour Court on this plea which was specifically raised. Further the labour court had wrongly held that it was for the employer to prove that the concerned workman had not worked for 240 days or more in the year immediately preceding the date of termination.

3. There is no appearance on behalf of the respondent.

4. 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 to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr. Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today."

The said decision was followed in Essen Deinki v. Rajiv Kumar, (2002(8) SCC 400).

5. In Rajasthan State Ganganagar S. Mills Ltd. v. Sta