Point of Law: The initial burden of proof was on workman to show that he had completed 240 days of service. Tribunal's view that the burden was on the employer was held to be erroneous.

JUDGMENT :

1. Rule. Learned advocate Mr. Darshil Thakkar, learned advocate appearing for the respondents waives service of notice of Rule in all these petitions.

2. With the consent of the learned advocates for the respective parties, these petitions are taken up for final hearing today.

3. Heard Mr. Rishin R. Patel, learned counsel appearing for the petitioners and Mr. Darshil Thakkar, learned advocate for Mr. Ashish H. Shah, learned advocate for the respondent – Workmen.

4. In all these petitions, the employer has challenged the awards of the Labour Court, Palanpur dated 30.10.2018, by which, the respondent – workmen, by the award has been directed to be paid compensation as set out in the respective awards.

5. Before the Labour Court, the respondent – workmen had filed Statement of Claim. It was their case that they had worked for 18 years as Sweepers and were being paid Rs.131/- per day. That, they had completed 240 days in each year of service and their discontinuance from service / engagement by the petitioners was in violation of provisions of Section 25(F) of the Industrial Disputes Act. The petitioner had filed Written Statement at Exh.10 denying the statement of the workmen. It was their case that they were engaged as Contractors for a limited period of time by the Indian Oil Corporation. The workman had examined himself at Exh.12 and had produced documents at Exhs.9 to 25.

6. Mr. Rishin Patel, learned advocate for the petitioners would assail the award of the Labour Court primarily on the ground that though it was the case of the workmen that they had worked for 240 days in each year of service, no documents or evidence had come on record to prove their case of they having worked for 240 days in each year of service.

6.1. In fact, Mr. Patel would draw the Court’s attention to the cross-examination of the workmen, which clearly indicated that they had admitted that they had no evidence to suggest that they had worked continuously for 240 days in each year of service. That in the examination and the cross examination, in fact, it was their case that they were employees of the IOC.

6.2. Mr. Patel would further submit that the Labour Court committed an error when the employer had produced evidence in terms of muster rolls for the years 2007-08, 2008-09 and 2009-10, the period for which the contract was invoked clearly indicating that the respondent – workmen had not completed 240 days and the Labour Court misleading this evidence held that it was the employer who had failed to deny the case otherwise by evidence of the workmen having not worked for 240 days and the liability therefore was fasten on the employer.

7. Mr. Darshil Thakkar, learned advocate appearing for Mr. Ashish H. Shah, learned advocate for the respondent – workmen in all these petitions would extensively read the findings of the labour Court and submit that the labour Court had rightly on the basis of the documents at Exh.19 come to the conclusion that insufficient evidence was produced by the employer to deny the case of the workmen and they having completed 240 days in service. The Labour Court in Mr. Thakkar’s submission had rightly relied on a decision of the Hon’ble Supreme Court in the case of R.M. Yellatti v. Assistant Executive Engineer reported in 2006(1) SCC 106 and held that the employer had failed to produce evidence to the contrary and, therefore, the award directing the petitioners to pay compensation was just and proper.

8. Perusal of the award would indicate that it was the statement of claim of the respondent – workmen which was filed by them asserting that they were working with the Office of the employer of the petitioner for the past 18 years on Daily Wage of Rs.131/-. A statement was made in the Statement of Claim that they had completed 240 days in each year of service. The oral evidence of the workmen which is produced on record indicates that in fact it was a case of the respondent workmen that he had been working for a period of over 18 y