The requirement of continuous service of 240 days under the Industrial Disputes Act, 1947 is essential for challenging retrenchment, and the burden of proof lies with the employer.

Order :

(DINESH MEHTA, J.)

1. By way of present writ petition, the petitioner has impugned the judgment and award dated 26.02.2003 passed by the learned Labour Court, Bikaner (hereinafter referred to as the ‘Labour Court’), whereby reference made by the State vide notification dated 22.03.2002 was negated.

2. The pertinent facts of the case at hands are that the petitioner was appointed as daily wages employee by the respondent-Board on 15.02.1998 for operating Electric Pumpset. According to the petitioner’s pleading, he had served the respondents up to 31.05.1999 when his services were retrenched without following the mandatory requirement of Chapter VA of the Industrial Dispute Act, 1947 (hereinafter referred to as the ‘Act of 1947’).

3. Feeling aggrieved of such retrenchment, the petitioner raised an industrial dispute and a reference came to be made by the State Government vide notification dated 22.03.2002, requiring the Labour Court to answer as to whether the petitioner was an employee in the Municipal Board, Ratangarh, District Churu and if yes, then whether his retrenchment on 31.05.1999 was valid or not? If not then, the claimant was entitled to what relief.

4. Though the petitioner asserted that he had served the respondent-Board from 15.02.1998 to 31.05.1999, however, he could produce the evidence of his serving the respondent-Board from 17.12.1998 to 25.03.1999 only.

5. The Labour Court on the basis of pleadings and evidence on record came to a conclusion that since the petitioner could prove the factum of serving the respondent-Board for the period between 17.12.1998 to 25.03.1999, he cannot be said to be an employee rendering continuous service, as the total period he served was less than 240 days.

6. Mr. Saluja, learned counsel for the petitioner argued that the Labour Court has erred in answering the reference made by the State against the petitioner.

7. While contending that the muster roll and other evidence/documents were with the respondent-Board, learned counsel for the petitioner argued that the petitioner’s oral assertion that he had served the respondent-Board from 15.02.1998 to 31.05.1999 ought to have been accepted by the Labour Court, as the burden to produce relevant evidence lay upon the respondent-Board, as entire record was in its possession.

8. Regardless of the aforesaid argument, Mr. Saluja, learned counsel for the petitioner argued that there is no requirement of completing 240 days’ of service for the purpose of invoking provision of sections 25F and 25G of the Act of 1947.

9. In support of his argument aforesaid, learned counsel relied upon the judgment of Hon’ble the Supreme Court rendered in the case of Samishta Dube vs. City Board, Etawah & Anr., reported in (1999) 3 SCC 14. Inviting Court’s attention towards Para No.7 of the judgment ibid, learned counsel argued that Hon’ble the Supreme Court has categorically held that a workman is not required to work for 240 days; and if a workman has been retrenched without following due procedure provided under section 25F of the Act of 1947, his retrenchment is liable to be held illegal.

10. Mr. Madhav Soni, associate to Mr. Paramveer Singh Champawat, learned counsel for the respondents argued that the petitioner had led evidence documentary and oral and according to such evidence, he had worked from 17.12.1998 to 25.03.1999 and total number of days he worked, if added comes to 99 days, which are admittedly lesser than the requisite period of 240 days.

11. Learned counsel argued that the petitioner’s reliance upon the judgment of Hon’ble the Supreme Court in the case of Samishta Dube (supra) is misplaced inasmuch as the provisions involved in the said case were that of UP Industrial Disputes Act, 1947 in which, provision may be analogous but not exactly the same.

12. Learned counsel further invited Court’s attention towards the additional affidavit which the petitioner had filed and submitted that even according to the documents filed with the additional affi