The dominant nature test is crucial in determining whether an employer falls within the ambit of 'industry' under the U.P. Industrial Disputes Act, and the burden of proof lies with the employer to establish non-industrial status.

TARUN AGARWALA, J.

1. The petitioner has challenged the validity and legality of the award passed by the Labour Court directing reinstatement of the workman with 50% back wages. The facts leading to the filing of the writ petition is that in 1986 the workman was appointed as a Sinchpal and that his services was terminated on 31.12.1987. In 1992, the dispute was referred u/s 4K of the U.P. Industrial Disputes Act (hereinafter referred to as the ‘Act’) with regard to the validity and legality of the order of termination. It transpires that an ex parte award dated 20.3.1993 was given in favour of the workman, but, subsequently on an application for recall filed on behalf of the employers, the ex parte award was set aside by an order dated 18.3.1994. Pursuant thereto, the employers were allowed to file the written statement.

2. The employers, as per their written statement, contended that the workman was employed on exigencies of service on a dally rate basis @ Rs.14 per day and that he worked intermittently from 1.1.1987 to 31.1.1987, from 1.6.1987 to 4.7.1987 and from 1.8.1987 to 31.12.1987. The employers contended that the workman had never worked for more than 240 days in a calendar year and therefore, the provisions of Section 6N was not applicable. The employers further submitted that the Irrigation Department is not an “Industry” as defined u/s 2(k) of the Act and, therefore, no industrial dispute could be referred to the labour court.

3. The workman on the other hand contended that he was appointed on 15.8.1986 and that he worked continuously without any break in service till 31.12.1987 and therefore, had completed 240 days in a calendar year. The workman contended that he was not given any compensation as per Section 6N of the Act nor any notice was given and consequently, the order of termination was illegal and that an order of termination was liable to be set aside.

4. On behalf of the workman, an application was filed for summoning the documents, which were in exclusive possession of the employers, namely, the muster roll register, the attendance and payment register from the date of appointment of the petitioner till the date of his termination. This application was filed in order to strengthen the ground of the workman, namely, that he had worked continuously from 15.8.1986 onwards. Inspite of repeated time being granted and several opportunities being given, the employers did not file any document. A witnesses of the employer. P.W.1, in his deposition admitted that between August, 1986 to December, 1986 the workman had worked for some period of time.

5. The labour court, after considering the material evidence on record held, that the employer, namely, the Irrigation Department of the State of U.P. is an industry as defined u/s 2(k) of the Act. The labour court, on the basis of the evidence, came to the conclusion that the workman had worked continuously for more than 240 days in a calendar year and that the termination of the services of the workman without complying with the provisions of Section 6N of the U.P. Industrial Disputes Act was wholly illegal. The labour court also came to the conclusion that juniors to the petitioner had been retained and the principle of “last come first to go” was not followed and that there was a violation of the provision of Section 6P of the U.P. Industrial Disputes Act. The labour court also drew adverse inference against the employer for not filing the documents. The employer, being aggrieved by the said award has filed the present writ petition.

6. This petition was heard and dismissed by a judgment dated 23.5.2002. The Court agreed with the finding recorded by the labour court to the effect that the workman had worked for more than 240 days and accordingly, affirmed the award. It transpires that against the judgment of the High Court, the petitioners filed a SLP before the Supreme Court of India, which was allowed by a judgment dated 31.10.2003, on the short ground that t