The burden of proof is on the workman to establish completion of 240 days of service and the department as an industry under Section 2(j) of the ID Act. Non-compliance with Section 25-F renders termination illegal.

( 1 ) HEARD learned AGP Ms. Archana Raval for Petitioner and Ms. Yogini Parikh, learned advocate for Respondent workman. In this petition under Article 227 of Constitution of india, Petitioner has challenged award made by labour Court, Baroda in Reference No. 461 of 1990 dated October 28, 2005, wherein Labour court has partly allowed reference. Labour court has set aside the termination order and granted reinstatement with continuity of service with 50 per cent back wages for intervening period. Labour Court also awarded cost of Rs. 1,000. 00.

( 2 ) LEARNED AGP Ms. Raval submitted that the Agricultural Department is not an industry within meaning of Section 2 (j) of the ID Act, 1947. She also pointed out about the conditions of service of the Respondent workman. She also raised contention that the Respondent was appointed a part time employee and he was being paid from the contingent fund. She also contended that the burden was upon the respondent to prove as to whether the department is covered by the definition of industry or not. She also submits that the government Resolution dated October 17, 1988 is not applicable to the workman. She also contended that it is initial burden upon the workman to prove that he has completed 240 days continuous service in preceding 12 months from the date of termination and since that burden was not discharged by Respondent, labour Court has committed gross error in granting benefit in favour of Respondent workman. Paragraph 11 of the impugned award at page 19 was read by her before this court and it was submitted that Labour Court has to examine whether the workman has completed 240 days continuous service within twelve months preceding the date of termination or not. According to her submission, this aspect was not examined by labour Court and, therefore, Labour Court has committed gross error in passing such an award. In support of her submission that it is the burden upon the workman to prove that the department is an industry, she has placed reliance on the decision of Apex Court in State of Gujarat and others v. Pratamsingh Narsinh parmar 2001 (9) SCC 713 : 2001-I-LLJ-l 118. In support of her submission that it is the burden upon the workman to prove that he has completed 240 days continuous service within twelve months preceding the date of termination, she has placed reliance upon the apex Court decision in Range Forest Officer v. S. T. Hadimani AIR 2002 (SC) 1147 : 2002 (2)SCC 25 : 2002-I-LLJ-1053 (SC) wherein it is observed by Apex Court that it is for workman to lead evidence to the effect that he had completed 240 days in the year preceding the date of termination of his service. Except the, submissions recorded hereinabove and the decisions referred to hereinabove, no further submission was made by her before this Court and no other decision was cited by her before this Court.

( 3 ) ON the other hand, Ms. Yogini Parikh, learned advocate appearing for Respondent on caveat, while supporting the impugned award, submitted that mere contention raised in written statement is not enough but that is required to be proved by the department. She also pointed out that no order was produced by the department to show that the Respondent was appointed as a part time employee. She submits that when the department comes with a positive assertion that the Respondent was appointed as part time employee and not as a full time employee, then, that part of their assertion is required to be proved by the department by producing some evidence to that effect. So, there was no positive order produced by department against workman on record and in absence of that, Labour Court was right in considering that the workman was not a part time employee. She also submits that the respondent workman was examined before labour Court vide Exhibit 11 and workman deposed at Exhibit 11 before the Labour Court about his duties which were performed by him in the department. She also submits that once e