JUDGMENT :

1. This petition under Article 226 / 227 of the Constitution of India is filed by the employer, Executive Engineer, District Panchayat, Irrigation Department, Surat, challenging the award of the Labour Court, dated 15.02.2019. By the award in question, the Labour Court has directed that the respondent workman be reinstated in service with 30% backwages.

2. Facts in brief would indicate that the respondent who was working as a Driver with the petitioner employer, approached the Labour Court filing a Statement of Claim at exh.6. It was his case that he was working as a Driver with the petitioner since 01.03.1996 and on and from 30.04.2012 after office hours, he was told that he should not report for duty from 01.05.2012. According to the respondent workman, he was told that from 01.05.2012, the services of Driver were being outsourced and therefore he was not required to report for duty. It was his case that he was earning a daily wage of Rs.135/-. The employer petitioner filed a response by way of exh.8 denying the claim of the workman that he was working since 01.03.1996. It was the case of the department that the Driver had worked only from 01.05.2011 to 30.04.2012 on a daily wage basis. Based on a rate card, he was paid Rs.135/- as daily wage. That there was no sanctioned post of a Driver and having decided to outsource the services of a Driver, the services of the petitioner were put to an end. Evidence was led by both parties. The workman was examined at exh.13. He had produced Salary Bills at marks 12/1 to 12/12 showing the number of days that he had worked and the salary wages paid for that day. The employer also examined one Dhanjibhai Chimtabhai Gamit at exh. 23. Also was produced at exh.7 the details of the wages paid on the basis of the dates on which the workman had worked at marks 25/1 to 25/4. The employer had produced the actual number of days that the workman had worked and the allotment of a new Car from 12.01.2017. Based on appreciation of evidence, the Labour Court came to the conclusion that there was violation of provisions of Sec. 25(F) and 25(G) of the Industrial Disputes Act, 1947, and therefore, the respondent workman was reinstated with 30 % backwages.

3. Ms. Sejal Mandaviya, learned counsel for the petitioner - employer submitted that the findings of the Labour Court, more or less, were in favour of the petitioner inasmuch as, the workman was not in a position to prove that he had worked from 01.03.1996, despite which the Labour Court granted the benefit of reinstatement with 30% backwages. In fact, for the period from 01.05.2011 to 30.04.2012, the workman had not worked for 240 days but for a period of 92 days as was the evidence produced on record by way of documents at exhs.25/2 and 25/3.

3.1 Ms. Mandaviya, learned counsel for the petitioner, would submit that once it was found by the Labour Court that there was no need for the services of a driver and the services were being outsourced, the Labour Court could not have awarded reinstatement particularly also with backwages.

3.2 Ms. Mandaviya, learned counsel for the petitioner, would also submit that except for the statements which the workman had given in terms of details of Salary Slips, nothing was produced on record and therefore no adverse inference could have been drawn against the petitioner to show that the employee workman had completed 240 days in service.

4. Mr. Dipak Dave, learned counsel for the respondent workman would submit that the award of the Labour Court is just and proper. A specific and a positive finding had been arrived at by the Labour Court that the workman had for the period from 01.05.2011 to 30.04.2012 had worked for 272 days. That itself showed that in compliance with the provisions of Sec.25(D) the workman had worked for 240 days in the preceding year prior to his termination. The Labour Court, therefore, had rightly held that there was violation of Sec.25(F) of the Act.

4.1 Mr. Dave, learned advocate, would furth