JUDGMENT :

H.K. Rathod, J.

Heard learned AGP Mr. A.L. Sharma appearing on behalf of petitioner and learned advocate Ms. Megha Jani appearing on behalf of respondent - employee.

2. In this matter, petitioner - Executive Engineer has challenged award passed by Labour Court, Surendranagar in Reference No.231 of 1994 dated 16.11.2006. The Labour Court has granted relief in favour of workman to reinstate him in original post with continuity of service without back wages of interim period.

2.1 Affidavit-in-reply is filed by respondent - workman which is at page-34. In Para.10 of said affidavit, following averments are made :

“10. I further state that services of three other labourers working in the same department as the petitioner herein, being (1) Hirabhai Thakarshibhai (2) Narsinhbhai Vitthalbhai and (3) Bhikhabhai Pethabhai were terminated along-with the present petitioner and they had also preferred Reference proceedings before the Labour Court wherein awards were passed directing their reinstatement. These persons have been reinstated and the present petitioner is discriminated against and is not reinstated till date. Hirabhai Thakarshibhai and Narsinhbhai Vitthalbhai have been reinstated pursuant to the order dated 10.7.2008 passed by Hon'ble Supreme Court in SLP (Civil) Nos. 8480 and 8481 of 2008, whereby the petition of the petitioner department herein were dismissed. A copy of the order of Hon'ble Supreme Court is annexed and marked Annexure R-3. I further state that Bhikhabhai Pethabhai has been reinstated pursuant to internal letter no.labour/court/case/549, copy whereof of annexed and marked Annexure R-4.”

3. Learned AGP Mr. Sharma has raised contentions before this Court that Labour Court has committed gross error in granting relief in favour of respondent. He also submitted that workman has not completed 240 days continuous service and workman has not produced any reliable documents before Labour Court to prove 240 days continuous service. He further submitted that workman was not appointed by petitioner on regular basis and workman was working as daily wagers with petitioner but, have not completed 240 days continuous service. For that, no sufficient material and evidence was produced on record by workman. He further submitted that burden is upon the employee to prove 240 days continuous service by leading proper evidence before Labour Court but, Labour Court has committed gross error which requires interference by this Court. He also raised contention that muster roll was produced by petitioner but, same has not been properly considered by Labour Court. Therefore, according to his submissions, interference by this Court is required in the award.

4. Learned advocate Ms. Megha Jani appearing on behalf of respondent submitted that respondent - workman has filed Civil Application No.11040 of 2009 wherein this Court has passed following order, on 4.11.2009 :

“1. The present application has been preferred by the applicant for directing the opponent to pay the regular wages as per the judgment dated 16.11.2006 passed by the Labour Court in LCS No.231 of 1994.

2. Upon hearing the learned Counsel for the applicant workman and Mr. Soni, learned AGP for the State - original petitioner, it appears that the award of the Labour Court is subject matter of Special Civil Application No.16102 of 2007. However, at the time when this Court admitted the petition there is no observations made for interim relief either to grant or to refuse the interim relief.

3. I would have further considered the matter. However, the learned AGP, under the instructions, states that without prejudice to the rights and contentions of the petitioner in the main Special Civil Application, the workman shall be reinstated in service, but the payment of back-wages may be stayed.

4. The learned Counsel for the applicant submitted that if the award is not stayed, the workman would be entitled for the back-wages.

5. It appears to the Court that considering the facts and circ