Retrenchment of a daily wage earner was declared illegal due to violation of section 25G of the Industrial Disputes Act, 1947, mandating adherence to the Last-In, First-Out principle.

Order :

(DINESH MEHTA, J.)

1. The petition in hands preferred under Article 226/227 of the Constitution of India calls in question the judgment and award dated 16.11.2002 passed by the learned Labour Court, Jodhpur, (hereinafter referred to as ‘the Tribunal’) whereby the reference made at the instance of the petitioner was decided against him.

2. According to the petitioner, he was appointed as a daily wage earner (helper) in the office of respondent No.3 on 01.12.1991 and he continued up to 15.10.1992. He further claimed that despite serving more than 240 days, the respondents had retrenched him without following the procedure as enunciated under section 25F of the Industrial Dispute Act, 1947 (hereinafter referred to as the ‘Act of 1947’).

3. Upon being retrenched, the petitioner approached this Court by way of preferring a writ petition being S.B. Civil Writ Petition No.6263/1992, which was ultimately decided by this Court vide its order dated 03.04.1995 - the petitioner was relegated to take remedies under the Act of 1947 with a corresponding direction to the State Government to make a reference.

4. Pursuant to the order dated 03.04.1995, a reference came to be made by the State Government vide notification dated 11.11.1997 interalia asking whether the action of the respondents in retrenching the petitioner from services with effect from 15.10.1992 was legal and valid and if not then, the workman was entitled for what relief?

5. The petitioner filed a claim petition before the Tribunal and asserted that he was appointed as helper on 01.12.1991 and continuously worked with the respondents upto 15.10.1992 until he was retrenched by oral orders.

6. The petitioner claimed before the Tribunal that the respondents had violated the mandate of section 25F, 25G and 25H of the Act of 1947 and therefore, he was entitled for reinstatement.

7. The reply/response was furnished by the respondents interalia contending that the petitioner has not worked for more than 240 days and therefore, he cannot be treated to be a workman having continuously served the respondents for a period of one year. A plea was taken by the respondent-State that the petitioner had worked only for 208 days (up to September, 1992), whereafter he had voluntarily stopped coming on duties.

8. The Tribunal scanned and considered the oral and ocular evidence on record and reached to the conclusion that the petitioner had failed to prove that he had worked for more than 240 days in a calender year. The Tribunal came to the conclusion that the petitioner’s contention that he had worked for 304 days with the respondents is not correct and that he had worked for less than 240 days. For this purpose, the Tribunal relied on the copies of the muster-roll, which the petitioner had produced.

9. Though it was specifically pleaded by the petitioner that the respondents had not complied with the mandate of section 25G and 25H of the Act of 1947, the Tribunal did not consider argument of the petitioner interalia for the reason that the petitioner-workman had not completed 240 days with the respondents.

10. Mr. Purohit, learned counsel for the petitioner submitted that the petitioner had produced the copies of the muster-roll, which were available with him. He argued that apart from the documentary evidence, the petitioner had filed an affidavit and asserted that he had worked for 304 days.

11. Learned counsel argued that the petitioner is an illiterate workman and he could only produce the evidence which was available with him. He added that the respondents ought to have produced the muster-roll of the relevant period during which the petitioner had worked. He submitted that since the respondents have not placed the muster-roll, adverse inference ought to have been drawn. Mr. Purohit argued that Tribunal ought to have decided the issue of continuous service for more than 240 days in petitioner’s favour.

12. Having said so, Mr. Purohit, learned counsel for the petitioner alternatively argued tha