JUDGMENT :

BIREN VAISHNAV, J.

1. The record indicates that on 19.09.2017, this Court (Coram: Hon’ble Smt. Justice Abhilasha Kumari) passed the following order:

“The petition has been called out thrice.

None appears for the petitioner even on the third call. The petition could have been dismissed for non-prosecution. However, in the interest of justice, it is adjourned to 03.10.2017.”

2. On 12.12.2017, this Court (Coram: Hon’ble Mr. Justice Mohinder Pal) passed the following order:

“Nobody is present on behalf of the petitioner. In the interest of justice, matter is adjourned to 28th December, 2017.”

3. On 10.01.2023, this Court (Coram: Hon’ble Mr. Justice Aniruddha P. Mayee) passed the following order:

“Even on the second call in the second session, none appears for the petitioner. Dismissed for non-prosecution.”

4. On 18.04.2023, this Court (Coram: Hon’ble Mr. Justice Aniruddha P. Mayee) passed the following order:

“Even on the second call in the second session, none appears. Dismissed for non-prosecution.”

5. However, the petition was thereafter restored vide an order dated 17.07.2023. Today also, on two calls, the petitioner - Amreli Municipality has gone unrepresented.

6. Ms. Abha Makwana learned advocate appearing for the respondent has fairly stated that on an earlier occasion, Mr. Deepak Sanchela learned advocate has sought time to file his appearance. It appears that no appearance has been filed. The petition is therefore taken up for hearing.

7. Challenge in this petition under Article 226 of the Constitution of India is to the award passed by the Labour Court, Amreli, in Reference (LCA) No. 44 of 2001. By the aforesaid award, the petitioner - Municipality has been directed to reinstate the workman with 20% back-wages.

8. Briefly stated, it was the case of the respondent- workman before the Labour Court, in the statement of claim filed at Exh.3 that he was working as a clerk with the petitioner Municipality. He joined the department on 14.10.1997 and was terminated from services with effect from 08.01.2001. At Exh.7, the Municipality filed a response to the statement of claim stating that the workman was engaged on a temporary basis by way of a stopgap arrangement and therefore his services were not continuous. That, he had not completed 240 days in each year of service. It was the case of the petitioner-Municipality that the workman was not engaged through a regular recruitment procedure and therefore, his services were no longer required once collection of octroi was stopped.

9. The Labour Court based on the evidence produced before it by the respective parties, came to the conclusion that when it was the case of the workman that he had uninterruptedly worked for the period from 14.10.1997 to 08.01.2001 and that he had filed an application at Exh.33 for a direction that the employer be directed to produce the relevant muster rolls so as to substantiate their contention that the workman had not worked for 240 days, the Labour Court found that once a production application was made by the workman and the employer failed to produce the necessary documents as the burden of proof has shifted on the employee, there was no reason to disbelieve the version of the workman.

10. Based on this finding, the Labour Court came to the conclusion that the workman had in fact worked for the period of 240 days in each year of service before his termination. It was therefore in violation of provisions of Section 25F of the Industrial Disputes Act.

11. Further perusal of the award of the Labour Court would indicate that a reference preceding the present one viz. Reference No. 155/2000 was filed by the workman prior to his termination for regularization of his services. The Labour Court found that pending the reference, if the Municipality wanted to terminate the services of the workman, they could not have done so without following the requisite procedure under Section 33 of the Industrial Disputes Act i.e. of seeking approval/permission of the Labour C