The burden of proof in employment disputes lies initially with the claimant to prove continuous service of 240 days in a year, and only upon the claimant providing evidence does the burden shift to the employer to disprove continuous service.

V. Periya Karuppiah, J.

This writ appeal is directed against the judgment of the learned single Judge made in W.P. No: 3064 of 1997 dated 03.01.2005 in dismissing the writ petition filed by the appellant herein seeking quashing of the order of the 1st respondent made in I.D. No: 107 of 1994 dated 09.08.1996.

2. The case before the 1st respondent was filed by the 2nd respondent herein, the workman who sought for reinstatement to the employment from which he was said to have been orally terminated on 22.09.1992 and the said case was taken up on file in I.D. No: 107 of 1994 by the Labour Court, Vellore, and the same was disposed of by the Labour Court Judge, Vellore, and an award was passed in favour of the 2nd respondent, who was the petitioner in that petition to be reinstated by the appellant with backwages and continuance of service. Against the said award, the writ petition was filed by the appellant herein in W.P. No: 3064 of 1997 which was dismissed by the learned single Judge of this Court confirming the award passed by the 1st respondent Labour Court, Vellore.

3. Learned counsel for the appellant Mr. Dwarakanathan would submit in his argument that the learned single Judge did not consider the case of the appellant that the employee alone has to prove his case initially and thereafter only the burden will shift on the appellant management to show that the employee was working as a casual labourer without any regularization for many number of years and the employer, the appellant, was under the obligation to produce the registers for attendance and wages and thereby prove its case against the canons of law and the judgment of the Hon’ble Supreme Court. He would further submit in his argument that the 1st respondent being the petitioner before the Labour Court did not even seek the appellant for production of those registers and on the failure in producing those registers, the presumption of continuity of service should have been taken note of, but no such presumption made by the 2nd respondent before the Labour Court to produce such documents. He would further submit that when the facts are such that the Labour Court had wrongly come to the conclusion that the appellant herein was under the obligation to produce those registers and on failure to produce the same adverse inference could be taken against is certainly not valid in law. He would further submit that the learned single Judge was misguided through the arguments of the 2nd respondent in the writ petition – petitioner before the Labour Court – that the appellant Management was directed by the Labour Court to produce those registers and that only the appellant had invited the award passed against it. More over, he would submit that the learned single Judge had also relied upon the arguments advanced by the 2nd respondent contrary to facts and circumstances of the case and had decided on the point that the Management has not produced the attendance register and wages register as directed.

4. He would further submit in his argument that the Supreme Court has laid down the position of law in this regard through its judgments reported in

(i) 2004 (III) L.L.J. 760 [Municipal Corp. Faridabad vs. Shri Niwas];

(ii) 2004 (4) L.L.N. 845 [Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan and another] and

(iii) 2006 L.L.R. 175 [Surendranagar Dist. Panchayat and another vs. Jethabhai Pitamberbhai]

Learned counsel would further submit that as per the judgment of the Apex Court of India, the decision of the High Court that the burden of proof that the worker had completed 240 days in a year lies on employer is purely a commission of error on the part of the High Court and it is the claimant who has to lead evidence to show that he has worked 240 days in a year in order to get the benefits. He would also submit that the 2nd respondent worker had admittedly received a sum of Rs.18/- as daily wages whenever he was called for the work and the management had