JUDGMENT :

H.K. Rathod, J.

Heard learned AGP Mr. AL Sharma on behalf of petitioner State of Gujarat, learned advocate Mr. TR Mishra appearing for respondent workman.

2. In present petition, petitioner has challenged award passed by Labour Court, Amreli in reference no. 61/99 dated 23/7/2007. The Labour Court while partly allowing reference, has granted reinstatement with continuity of service with 25% back wages of interim period.

3. This Court has issued Rule on 9/5/2008 and granted interim relief in terms of para 7 (III) subject to compliance of section 17 B of I. D. Act, 1947.

4. Learned advocate Mr. Mishra submitted that respondent workman is receiving 17 B wages during pendency of this petition and even in present also, workman is receiving last drawn wages from petitioner. He also made statement before this Court that 25% back wages, which has been granted in favour of workman. The said direction may be set aside with consent of respondent workman and this Court may only examine question of reinstatement with continuity of service, whether Labour Court has rightly granted reinstatement or not?

5. Learned AGP Mr. Sharma raised contention that Labour Court has committed gross error in deciding question of an “Industry” and also deciding 240 days continuous service proved by workman. He submitted that Labour Court has not properly appreciated evidence of petitioner's witness and because of all the relevant musters are not produced by petitioner, wrongly adverse inference has been drawn, which is contrary to law and record.

6. He also raised contention that Labour Court has not properly understood and interpreted section 25 G and H of I. D. Act, where it has been held that 240 days continuous service is not necessary to be proved by workman. He also submitted that workman was not recruited after following due recruitment procedure. Therefore, Section 25 F of I. D. Act, is not made applicable. In short, his submission is that burden was upon employee to prove 240 days continuous service, but workman has not proved it by producing relevant record before Labour Court. The statement of presence of workman produced on record by petitioner where in none of the year, workman has completed continuous service of 240 days. The details of presence of workman produced vide exh. 28 and if that detail is to be considered then 240 days is not proved. Even though, Labour Court has came to contrary conclusion from record. Therefore, present petition is preferred by petitioner.

7. Learned advocate Mr. Mishra appearing for workman submitted that Labour Court has rightly examined matter on the basis of record and workman was not received any documents from petitioner during course of employment. Therefore, it is very difficult for workman to produce any documents to prove 240 days continuous service before Labour Court.

8. He submitted that workman's evidence has been rightly accepted by Labour Court. No rebuttal evidence has been produced by petitioner. Though petitioner was having original muster roll for entire period, but said was not produced by petitioner before Labour Court. Therefore, adverse inference has been rightly drawn by Labour Court. He submitted that if workman was remained continued in service for a period of one year and in between if his service was not terminated then section 25 B subsection 1 has been satisfied by workman and in such circumstances, 240 days continuous service is not required to be established by workman under section 25 B (2) of I. D. Act. Therefore, he submitted that Labour Court has properly considered exh 28 as well as evidence of workman and evidence of witness of petitioner exh. 30 was taken.

9. In facts of present case, workman was working in Bagasara Irrigation Section for a period of 27/11/96 to 18/6/99. The workman has produced certificate before Labour Court given by one Shri. C. K. Solanki, Work Assistant, which was produced on record vide exh 31 by petitioner. The document exh 34 list of documents produc