The burden of proof lies on the workman to show continuous service for 240 days in the preceding year, as per Section 25F of the Industrial Disputes Act, 1947.

Sunita Gupta, J.

1. The challenge in this writ petition under Articles 226 and 227 of the Constitution of India is to the impugned award dated 03.10.2009 passed by the Presiding Officer, Labour Court, Karkardooma Courts, Delhi in ID No. 1066/06/04, vide which the respondent–workman was directed to be reinstated, if found medically fit, with valid driving license in the same post.

2. The factual matrix of the case which resulted in passing of the impugned award are as follows:

3. The Government of NCT of Delhi referred the dispute vide reference No. F. 24(113)/03–LaB/2699–03 dated 12.05.2004 with following terms reference:

“Whether the services of Shri Mohar Singh s/o Ghanshyam have been terminated illegally and/or unjustifiably by the management, if so, to what relief is he entitled and what directions are necessary in this respect?”

4. The respondent–workman filed his statement of claim alleging therein that he was employed as a driver with effect from 26.08.1988. His services were terminated with effect from 22.09.1989 without giving any reason against the principles of natural justice. The termination tantamount to hostile discrimination. His appeals dated 10.10.1997, 24.12.1998, 11.08.2003 and 04.11.2003 were rejected. The management did not conciliate the matter before the conciliation officer as such he prayed for reinstatement alongwith back-wages.

5. The claim was contested by the management inter alia on the allegations that the workman was appointed as R/C driver with effect from 26.08.1988. He remained absent for 57 days from August, 1988 to February, 1989 and again for 67 days w.e.f. February, 1989 to August, 1989. Another opportunity was given to the workman giving a scope for improvement for another six months. On the basis of absence, his services were dispensed with from 22.09.1989. The workman examined himself and reiterated the stand taken in the claim petition. He relied upon Ex.WW1/1 which shows that he was in the employment as Retainer-Crew-Driver and his services were dispensed with effect from 22.09.1989. On the other hand, the management examined MW-1–Mr. G.D. Srivastava, Depot Manager, who deposed that the respondent–workman was appointed on 26.08.1988 and he remained unauthorizedly absent during this period. In cross examination it had come that the respondent–workman was Retainer-Crew-Driver. He produced photocopies of the attendance register Ex.MW1/A and the Office Order No. 9 Ex.MW1/B. On the basis of evidence coming on record, the Ld. Labour Court observed that there was no dispute that the workman was a Retainer-Crew-Driver and not a permanent employee. The attendance sheet was also gone into for showing the number of days when the workman remained absent. However, the learned Labour Court relied upon the word ‘retrenchment’ in Ex.MW1/A produced by the management for arriving at a conclusion that it was a case of retrenchment and that being so, it was incumbent upon the management to follow Section 25F of the Industrial Disputes Act. In the instant case, the management has not complied with Clause (c) of Section 25F of the ID Act. As such, it was observed that the services of the workman were dispensed with without any justification and he was entitled for reinstatement. It was further held that he was not entitled for continuity of services or any consequential benefits. No back-wages were awarded. It is this award which is under challenge in this writ petition.

6. Despite service of notice, the respondent–workman did not appear to contest the matter.

7. The impugned award has been assailed by learned counsel for the petitioner inter alia on the following grounds:

(i) The workman was employed as Retainer-Crew-Driver and as per para 4(xiv) of the Executive Instructions governing the employment of Retainer-Crew-Driver, the services can be dispensed with without notice and without assigning any reason.

(ii) It was not a case of retrenchment as the respondent–workman had not completed 240