The main legal point established is that the burden of proving unfair labour practice lies on the workman, who must demonstrate malice and continuous work for more than 240 days. The court also emphasized the employer's offer of the same position to the workman.

By means of the present writ petition under Article 226 of the Constitution of India, the petitioner is challenging the award dated March 27, 1997 passed by the Presiding Officer, Industrial Tribunal, Agra in a reference made by the State Government in the matter of Industrial Dispute between Brook Bond Lipton India Limited, Tundla, District Firozabad and their workman Sri Pawan Kumar Jain son of Shri Phool Chandra Jain, Etah Road, Tundla, Firozabad. It may be mentioned here that in the writ petition, it is mentioned that Brook Bond India Limited is now known as Hindustan Lever Limited a Company incorporated under the Indian Companies Act.

2. Brief facts of the case giving rise to the present case are that Sri Pawan Kumar Jain claimed to be working from June, 1988 as a casual clerk with the employer Brook Bond India Limited. His services claimed to be terminated on February 5, 1992 and was not paid salary after February 1, 1992. He claimed that he has worked for more than 240 days in a preceding year in which his services was terminated but was not able to substantiate its claim. The Tribunal held that the workman has not worked continuously for more than 240 days in a preceding year in which he was 2 terminated. Tribunal however, having regard to the number of days since, 1988 has accepted the plea of the workman that he was employed for more than four years and his services was terminated taking advantage of a break created 2 by the employer in the year, 1992 depriving him of rights of continuous service and his claim for regular employment was unjust. Tribunal, accordingly, held that it was unfair labour practice covered under Clause (10) of Schedule V of Section 2(r-a) of the Industrial Disputes Act, 1947. The employer was accordingly, directed to take him back in service within 30 days from the publication of the award and the employers were further directed to consider him for appointment as a regular employee as Clerk-cum-Typist in normal course subject to educational qualifications on the basis of his past experience. Being aggrieved, the present writ petition is being filed.

3. OnNovember 12, 1997, the operation of the directions contained in the-impugned award for reinstatement has been stayed subject to the condition that the petitioner shall pay the wages last drawn by the respondent-workman with effect from the date of the award in accordance with Section 17-B of the Industrial Disputes Act. The aforesaid interim order was vacated on April 13, 2000 with the observation that "learned counsel for the petitioner states that interim order dated November 12, 1997 may be vacated. It has been stated that the workman is going to be reinstated by the petitioner. It has also been stated that the petitioner shall comply with the award dated March 27, 1997. It is ordered accordingly." It is claimed that thereafter the petitioner has wrote a letter for reinstatement of the workman in the same position with the same status, but the respondent has refused to join as he was claiming the employment as a regular employee?

4. Heard Sri Sudhir Chandra, learned senior advocate assisted by Sri Vivek Chaudhary, learned counsel for the petitioner and Sri Yogesh Kumar Sinha, learned counsel for the respondent-workman. Learned counsel for the petitioner submitted that the burden lies upon the workman to prove unfair labour practice on the part of the petitioner and to prove the malice. However, in the present case, the respondent-workman has failed to prove that there was any malice on the part of the petitioner and in this regard, no evidence has been adduced. He further submitted that the workman could not establish that there was any permanent vacancy and he could not be offered. He submitted that the respondent-workman was only a causal clerk and as per award, it was admitted that he was issued daily requisition slip when he was in employment. He submitted that he was not given any appointment order and has also no order term