JUDGMENT :

Paresh Upadhyay, J.

Heard Mr. Dipak R. Dave, learned advocate for the petitioner and Mr. Vishal Patel, learned A.G.P. for the respondent-authorities.

2. By way of this petition, the petitioner has challenged the award dated 31.07.2006 passed by the Labour Court, Himmatnagar whereby the learned Labour Court has rejected the Reference of the petitioner workman. It is the case of the petitioner that petitioner was serving with the respondent authorities since 01.07.1989 as watchman.

3. As per the case of the petitioner, he was given quarter and he was working with the office of the respondent continuously until he was orally terminated on 30.05.1999. The respondent raised industrial dispute which came to be referred to the Labour Court, Himmatnagar for adjudication. Before the Labour Court, the respondent appeared and contested the case of the petitioner. It is the case of the respondent that petitioner was serving as daily wager as and when work was available. The respondent stated that petitioner never worked continuously and that too 240 days in any year during his service with the respondent. It is the case of the respondent that petitioner has voluntarily abandoned the service and has left the work at his own with effect from 01.10.1998. It was accordingly prayed that Reference be rejected.

4. After examining the documentary evidence and oral evidence, the Labour Court came to the conclusion that the petitioner has worked only for 194 days in a year preceding to his termination, i.e. in the year 1998. As per the case of the respondent, there is no evidence to show that after 01.10.1998 the petitioner has worked with the respondent. The Labour Court has found that after the scheme was over, along with other daily wagers, petitioner stopped coming on duty and accordingly, it is held by the Labour Court that there is no evidence to show that from 30.05.1999 the petitioner has been terminated from service and accordingly rejected the Reference.

5. Learned advocate Mr. Dipak R. Dave appearing for the petitioner has contended that undisputedly the petitioner has worked continuously from 01.07.1989 to 01.10.1998, i.e. almost for nine years. If it is the case of the respondent that petitioner has voluntarily left the services, then it was incumbent for the respondent to call the petitioner for joining the service. No letter or notice has been issued to the petitioner by the respondent calling upon him to resume duty. If at all it is the case of abandonment of service, then the respondent could not have taken any objection with regard to joining of service by the petitioner. Moreover, at no point of time, either before the Conciliation Officer or before the Labour Court, the respondent ever pleaded that they are ready and willing to provide work to the petitioner since they have not terminated the service of the petitioner. It is further contended by learned advocate for the petitioner that as per Exhibit 16, which is a summary of working days produced on behalf of respondent, in a year which precedes termination of the petitioner, i.e. 01.10.1997 to 30.09.1998, petitioner has worked for 235 days. If one includes Sundays and holidays in the said list, then easily it can be said that petitioner has worked for more than 240 days. Learned advocate for the petitioner placed reliance in this regard on the decision of Hon'ble the Supreme Court in case of Workmen of American Express International Banking Corporation v. Management, reported in (1985) 4 SCC 78. It is further contended that even otherwise also, looking to the fact that since the petitioner has put in more than nine years of continuous service, it was not required for the petitioner to show that he has worked 240 days in a year preceding to his alleged termination. The learned advocate has placed reliance on the judgment of this Hon'ble Court in the case of Gujarat State Forest Development Corporation reported in 2006 JX (Gujarat) 405 and 2000 (2) GLR 1558. It is contended