The burden of proof in industrial disputes lies with the claimant, and the delay in raising a dispute can render it stale.

Rakesh Tiwari, J.—Heard counsel for the parties and have perused the materials given on record.

2. The petitioner has challenged the award dated 26.5.1996 passed by Labour Court (I) U. P. Kanpur in Adjudication Case No. 218 of 1997 which was enforced by publication on the notice board of the Labour Court on 19.12.1998.

3. Kanpur Electricity Supply Administration hereinafter called as K.E.S.A. is a unit of the U. P. State Electricity Board, which is a body corporate duly constituted under Section 5 of the Electricity Act. It is engaged in generation and distribution of electricity in the area of Kanpur and revenue collection for the same. The terms and conditions of its employees are governed by the Statutory regulations framed by the Board in exercise of its powers under Section 79C of the Electricity Supply Act, 1948.

4. The U. P. State Electricity Board vide its order O. N. No. 34-MP/(OS)/SEB-88-100 (2)-No/1978, dated 13.1.1988 sanctioned filling of 350 posts of coolies (including the resultant vacant posts of coolies, etc. which may fall vacant due to promotion from amongst lower categories of staff against the posts of lineman and meter reader etc. as a special case in relaxation of ban imposed vide B.O. No. 4840-NG (1)/SEB-213A/65, dated 19.9.1978. The sanction was granted subject to the condition that these vacant posts of coolie shall be filled within the sanctioned strength from amongst muster roll/retrenched muster roll employees who had continuously worked for more than 240 days in K.E.S.A. and were locally available and suitable. Those having previous experience of the job for which they are to be employed, may also be considered only when the sufficient number of muster roll/retrenched muster roll employees of K.E.S.A. are not available as stated above.

5. It is further stated by the petitioner that in order to take up emergent day-to-day works for ensuring generation in Riverside Power House and distribution of electricity and maintenance of supply, casual labour for 1 or 2 months were engaged for which no permanent record is maintained. Further it is stated that for filling in on 350 posts of coolies sanctioned by the Board as stated above, various unions demanded that recruitment may also be made from the wards of dependents of serving employees and also from the dependents of retired employees. After discussions with the various unions, it was decided that the vacant posts of coolies in the establishment will also be filled from the eligible dependents of the employees and dependents of the employees who are to retire if none of their dependent is employed in this administration.

6. The award has been challenged on the ground that respondent No. 2 was engaged on daily wages to meet the exigencies of work due to the fact that the permanent employees of the establishment had gone on an illegal strike which continued for some time and after the strike was over respondent was not engaged. It is submitted that the Labour Court has failed to appreciate that there was neither any evidence that respondent No. 2 was an employee of the U. P. State Electricity Board nor was its retrenched employee. It is also assailed on the ground that this dispute had once been raised earlier and thereafter withdrawn. Thereafter if was again raised after 8 years without any explanation of delay.

7. It appears from the record that respondent No. 2 raised industrial dispute with regard to his termination of services as temporary coolie. It was registered as C.B. Case No. 133 of 1990. The terms of the reference was as to whether the action of the employers in not giving the employment to the temporary coolie Sri Rais Khan S/o Sri Nanhe Khan on the basis of old services/experience is unjustified and illegal.

8. The aforesaid industrial dispute was referred to Labour Court (V) U. P. Kanpur, where it was registered as Adjudication Case No. 95 of 1992. This case was transferred to Labour Court (II) where it was registered as A