The burden of proof on the claimant to show 240 days of work in a year and the adverse inference for non-production of documents.

1. Heard learned AGP Mr. Shivang Shukla for the petitioners.

2. Through this petition under Article 227 of the Constitution of India, petitioner has challenged the award of Labour Court, Ahmedabad in Reference No. 679 of 1997 dated 21st July, 2006 wherein the labour court has partly allowed the reference, granted reinstatement with continuity of service without back wages for interim period.

3. During the course of hearing, learned AGP Mr. Shukla raised contention that the respondent has not completed 240 days continuous service within the year as required under section 25(B) of the ID Act, 1947. He also submitted that from 21st September, 1983 to 20th March, 1984, only 120 days continuous service has been rendered by the workman and, therefore, the labour court has committed gross error in granting benefit in favour of the workman. He also submitted that the respondent has not produced any documentary evidence on record to prove completion of 240 days continuous service before the labour court and, therefore, labour court has committed gross error in granting relief in favour of the workman. He also submitted that there is no termination order issued by the petitioner but the respondent workman herself has not been reporting for work and stopped at her own from reporting duty and, therefore, it is a case of abandonment of job and, therefore, labour court should not have granted relief in favour of the workman. Except that, no other contention has been raised by learned AGP Mr. Shukla before this Court and no decision has been cited by learned AGP Mr. Shukla before this Court in support of his aforesaid contentions.

4. I have considered the submissions made by the learned AGP Mr. Shukla before this Court. I have also perused the award in question made by the labour court.

5. As per the statement of claim filed by the respondent workman before the labour court, she was performing duties as a clerk in the establishment of the petitioner since four years. On 21.4.87, on completion of maternity leave, she had gone for resuming duties but she was not taken on job and thereby she has been retrenched. As per her statement of claim filed before the labour court, while terminating her services, she has not been given notice or notice pay in lieu thereof and was also not paid retrenchment compensation. Therefore, according to the respondent workman, she remained in service for more than four years continuously and completed 240 days and section25F has not been followed while terminating her services and it is a case of termination of service and not abandonment of job and, therefore, complaint was made before the Assistant Labour Commissioner which was referred to for adjudication to the labour court wherein reply was filed by the petitioner at Exh. 11 inter alia contending that the appointment of the petitioner was not according to the rules and, therefore, respondent is not entitled back door entry in the establishment of the petitioner. Respondent was cross examined before the labour court at Exh. 13 as her evidence was cross examined by the petitioner. Before the labour court, witness for the petitioner namely Gunvantbhai Hargovinddas at Exh. 39 and his evidence was cross examined by the learned Representative for the workman. Thereafter, mater was examined by the labour court on the basis of the record where the labour court come to the conclusion that Harshaben Madhusudan Jani and Harshaben Mohanbhai Jani are one and same person on the basis of Exh. 39/2 produced by the petitioner wherein it was made specifically clear that in muster, while making payment, presence alone which is being marked in the name of a person is being examined and the name of father or husband is not being looked into. Function was to verify that the presence is not marked by any new person. Thus this letter explains that it makes no difference whether person is Harsha Madhusudan Jani or Harsha Mohanlal Jani but to see that somebody else may no