The onus of proving continuous work for the last preceding 12 months lies with the workman, and casual employees cannot be thrust upon as regular employees.

( 1 ) BY this writ petition the petitioner has challenged the validity of the award dated 7/4/2004 passed by Labour Court- IX, Karkardooma, Delhi, directing the petitioner to reinstate the respondent.

( 2 ) BRIEFLY the facts are that the respondent/ workman was employed as a mali/ Beldar with ADH-CL Zone of the petitioner on 26/3/1990 as a daily wager/ casual employee. He worked for the days as and when work was available and his services were disengaged on 26/7/1991. The respondent alleged that his services were wrongfully terminated in violation of Section 25 (F) (a), (b), (c) G and H of the Industrial Disputes Act, 1947 ( for short the "act") and raised an industrial dispute which was referred by the appropriate government in following terms:-"whether services of Sh. Kishan Pal has been terminated illegally and/or unjustifiable by the management, and if so, to what relief is he entitled and what directions are necessary in this respect"

( 3 ) PETITIONER in his written statement before the Tribunal stated that respondent had not completed 240 days of continuous service in preceding 12 months and was not entitled to any benefit under the Act. He was engaged only against the specific development work for short period as and when required and when the development work came to an end, he was disengaged from the work. On the pleadings of the parties, the following issues were framed:-1. Whether the workman has completed 240 days" 2. Whether the services of the workman have been terminated illegally and/or unjustifiably" 3. Relief.

( 4 ) TRIBUNAL observed that respondent was a muster roll employee and the mcd must have maintained muster roll in respect of respondent. MCD did not produce muster roll in order to establish that workman had not worked for 240 days continuously during the last preceding year. Since the MCD has not produced muster roll so adverse inference has to be drawn against the MCD for not producing muster roll. Therefore Tribunal concluded that petitioner has worked for 240 days.

( 5 ) THE Tribunal also observed that no evidence has been produced that the respondent was employed for any specific assignment and the assignment has come to an end. The Tribunal therefore directed reinstatement of the respondent. However, Tribunal refused to grant back wages on the ground that the respondent had raised industrial dispute after two years of his termination and he had also sought several adjournments for filing the affidavit and got himself cross examined in the Court.

( 6 ) THE Award of the Tribunal is contrary to the law laid down by the Supreme court. It is settled law that a person who claims that his services were wrongfully terminated has to prove that he has worked continuously during the last preceding 12 months. This onus has to be discharged by the workman by cogent oral and documentary evidence. His self serving affidavit or his statement on oath is not sufficient to discharge this onus. One can refer to 2006 LLR 886- Chief Engineer Ranjit Sagar Dam and Another Vs. Sham Lal.

( 7 ) IN this case the respondent raised industrial dispute after two years of his alleged termination. MCD is not supposed to retain muster roll of employee who are engaged from time to time in perpetuity. Muster rolls are maintained for the purpose of disbursing salary and to keep a record of the attendance of the daily wager. Muster roll is not a service record of permanent and regular employees. No fault can be found with the petitioner if muster roll is not produced in the Court when the dispute is raised by the daily wager after a long period. The respondent in this case has raised a dispute after about two years of his alleged termination and the muster roll was asked to be produced in the Court after about twelve years of his alleged disengagement. The onus was not on the MCD to prove that the employee had worked for 240 days. The onus was on the respondent to prove that he worked for 240 days. No adverse inference could be d

Click Here to Read the rest of this document