JUDGMENT :

Jayant Patel, J.

The present petition is directed against the award dated 28.04.2005 passed by the Labour Court in Reference (LCR) No. 2225/88, whereby the Labour Court has directed for reinstatement without back wages.

2. The short facts of the case appears to be that the petitioner which was earlier Electricity Board and now Electricity Company had engaged respondent no.1 purely on temporary and adhoc basis as NMR employee in the year 1981. As per the petitioner, respondent no.1 was engaged on purely temporary basis for a shorter period intermittently as and when his services were required. Thereafter, in the year 1983, he was discontinued. A dispute was raised before the Labour Court under the Industrial Disputes Act (hereinafter referred to as the "Act"). Such dispute was referred to the Labour Court for adjudication. The Labour Court, at the conclusion of the reference, passed the above referred judgment and award. Under the circumstances, the present petition before this Court.

3. I have heard Mr. S.D. Motwani for Mr. Dipak Dave for the petitioner and Mr. H.N. Shah for Mr. Pankaj Desai for the respondent no.1.

4. It was submitted on behalf of the petitioner that the respondent workman did not work continuously for 240 days during any period including the preceding year. It was submitted that the burden is upon the workman to prove that he worked for 240 days. The Labour Court committed error in adding the days of holidays and recording the finding that the workman had worked for 240 days and therefore, there was breach of the provisions of section 25F of the Act and the reinstatement is ordered. The learned counsel submitted that even if it is considered for the sake of examination that there was breach of provisions of section 25F of the Act, then also, taking into consideration that the workman was not continuously engaged and was engaged only on temporary basis as NMR employee as daily wager and there was no regular sanctioned set-up or the post available, the Labour Court ought to have considered the matter for lumpsum compensation in lieu of the reinstatement. The learned counsel relied upon the decision of this Court in the case of Executive Engineer v. Kiritbhai N. Dave in SCA No. 23049/05 decided on 20.11.2014 and he submitted that this Court may modulate the relief and the reinstatement may not be maintained or the lumpsum compensation be awarded in lieu of reinstatement.

5. Whereas, Mr. Shah, learned counsel appearing for respondent no.1 submitted that as such, the reinstatement could be maintained since there was breach of section 25F of the Act and further, there was also breach of the other provisions of the Act. Therefore, this Court may modulate the relief already awarded by the Labour Court.

6. The perusal of the award passed by the Labour Court shows that even as per the muster roll produced for the year 1981-1982, the workman worked for 214 days, and further in the month of August 1982 he worked for 21 days, he worked for 4 days in the month of October 1982, 19 days in the month of December 1982, in the month of January 1983 for 3 days, from August 1983 to November 1983 he had worked for 62 days. Therefore, as it is, if these days are considered, it cannot be said that the period of 240 days were over for fulfilling the requirement of section 25F of the Act. Further, the Labour Court has added the days of holidays, viz., Sunday and the public holidays and the same are added by the Labour Court so as to make it 240 days. But in the evidence of the workman, he specifically stated that when he was terminated, his juniors, viz., Arjan Solanki, Natubhai Gondaliya, Naranbhai Suva were terminated. Therefore, the question of breach of provisions of section 25H may also be required to be examined.

7. Considering the facts and circumstances of the case, it appears that the important aspect that the respondent workman was working intermittently as daily wager and outside the set-up has not been properly conside