The burden of proof lies on the workman to show continuous work for 240 days, and the workman must adduce cogent evidence, both oral and documentary, to discharge this burden.

K. J. ROHEE, J

1. The appellant/employer has challenged the order of the learned Single Judge dated 23.11.1998 dismissing Writ Petition No.3407 of 1998 challenging the Award passed by the Labour Court, Yavatmal on 6.1.1998 in Reference (IDA) No.11/1995 directing the appellant to reinstate the respondent/workman with continuity of service but without back wages.

2. According to the respondent/workman he was serving with the appellant in Quality Control Laboratory at Yavatmal as Helper on daily wages of Rs.20.10 Rs. From 1.5.1985. The respondent worked for more than 240 days in every year. He worked with the appellant till 2.2.1991. There was no complaint in respect of the services rendered by the respondent. However, in spite of availability of work, the appellant used to give technical break to the respondent in order to deprive the respondent of the benefit of coming on regular establishment. No reasons used to be given for the technical breaks. The services of the respondent were terminated by the appellant from 3.2.1991 by oral order. While terminating the services of the respondent, no notice or reasons were given. No seniority list was maintained. After terminating the respondent, new workers were appointed by the appellant and they are still working with the appellant. The termination of the services of the respondent is illegal and by terminating the services of the respondent the appellant has engaged in unfair labour practice. The respondent made repeated applications to the appellant in 1995 for giving him work. However, there was no response by the appellant. The matter was taken to the Conciliation Officer but the attempt of conciliation failed. The Deputy Commissioner of Labour, Nagpur referred the dispute to the Labour Court by an order dated 11.9.1995.

3. The appellant contended that the respondent was never appointed by the appellant but his services were temporarily engaged on daily wages from 1.5.1985 whenever work was available. The respondent did not work for 240 days in 12 calendar months prior to the date of his termination. The appellant denied to have engaged new workers. The appellant denied to have retained in service the persons who are juniors to the respondent. The nature of the work which respondent did was of seasonal one and the respondent did not work for 240 days. Thus the dispute was liable to be dismissed.

4. It seems that before the Labour Court the respondent alone adduced evidence. The appellant did not adduce evidence. The Labour Court held that the appellant was working continuously for more than 240 days in a year as required under Section 25B of the Industrial Disputes Act. The Labour Court further held that the termination of the respondent amounts to retrenchment as defined under Section 2(oo) of the Industrial Disputes Act. The Court further held that one month.s notice in writing indicating the reasons for retrenchment was not given to the respondent nor wages in lieu of notice were paid to the respondent, so also retrenchment compensation was not paid as required under Section 25-F of the Industrial Disputes Act. Thus the services of the respondent were terminated without complying with the provisions of Section 25-F and as such the termination of the respondent is illegal. Hence the Labour Court directed reinstatement of the respondent with continuity of service. However, as the respondent was not diligent in challenging the termination, the Labour Court refused back wages.

5. The order of the Labour Court was assailed by the appellant on the ground that there was no evidence to show that the respondent continuously worked for 240 days in the preceding year. However, in view of the fact that the Labour Court found the evidence of the respondent trustworthy whereas no evidence was led by the appellant, the learned Single Judge held that there was no reason to interfere with the order of the Labour Court. The petition was, therefore, summarily dismissed. The said order is under