The central legal point established in the judgment is the requirement for compliance with the provisions of the U.P. Industrial Disputes Act, 1947 and the Uttar Pradesh Industrial Disputes Rules, 1957 in cases of retrenchment, and the burden of proof on the employer to establish the conditions for exclusion from the definition of retrenchment.

Rajiv Sharma, J.

This petition is directed against the Award dated 07.12.2011, rendered by Presiding Officer, Labour Court, Haridwar in Adjudication Case No. 492 of 2009.

2. Key facts necessary for adjudication of this petition are that respondent no.2/workman was engaged on 07.08.1995. He had worked upto 13.08.2007. He was retrenched on 14.08.2007 without following the provisions of Section 6(N) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as “The Act, 1947”) and Rule 42 of the Uttar Pradesh Industrial Disputes Rules, 1957 (hereinafter referred to as “The Rules, 1957”). He raised the industrial dispute. The matter was referred to the Labour Court after the failure report made by the Conciliation Officer. The respondent no.2/workman filed the claim petition stating therein that he had worked for more than 240 days. The reply was filed by the employer.

3. According to the averments made in the claim petition, the respondent no.2/workman had worked for more than 240 days in a calendar year. Learned Labour Court answered the reference in favour of the workman-respondent no.2 on 07.12.2011. Hence, the present writ petition.

4. Learned Counsel appearing on behalf of petitioner has vehemently argued that there is no master-servant relationship. The respondent no.2/workman had not completed 240 days in a calendar year and he was appointed under a scheme called “Samudaik Vikas Yojna”.

5. Learned counsel for the respondent no.2 has supported the Award.

6. I have heard learned counsel for both the parties and have gone through the material placed on record.

7. The respondent no.2/workman was appointed vide appointment letter dated 07.08.1995 pursuant to the recommendations made by the Principal on Page No.134 of the paper-book. The appointment of the respondent no.2/workman was not under any particular scheme.

8. The attention of this Court has drawn towards the two agreements dated 22.06.2001 and 13.10.2001. No contract/agreement has been placed on record either before this Court or before learned Labour Court showing the existence of any agreement between 1995 to 14.08.2007 except agreements dated 22.03.2001 and 13.10.2001. The appointment of the workman-respondent no.2 was on muster-roll basis. The workman has duly proved that he had completed 240 days in a calendar year. It is of no consequence whether the appointment of the workman was permanent or sanctioned. What is to be seen is whether the workman has worked for 240 days or not. The workman in his statement has duly testified that he had worked 240 days on being appointed by the Principal.

9. The averments made by the respondent no.2/workman have not been rebutted by the employer/petitioner. Thus, the statement made by the respondent no.2/workman is believable.

10. The workman has also been issued experience certificate by the Principal on 26.07.1997. Thus, there was a master-servant relationship. The workman has neither issued any notice under Section 25(F) of the Industrial Disputes Act read with Rule 42 of the Rules, 1957 at the time of his retrenchment. Thus, the retrenchment of the workman has rightly been found to be void ab initio by learned Labour Court, with the direction to treat the workman in service vide impugned Award by declaring his retrenchment illegal.

11. The workman was never apprised that he was appointed under a scheme/project for a particular period.

12. Their Lordships of Hon’ble Supreme Court in (2003) 4 SCC 27 in the case of “S.M. Nilajkar and others Vs. Telecom District Manager, Karnataka”, have held that burden to prove the ingredients of sub-clause (bb) is on employer. Employment must be shown to be under a contract which stipulates that it would come to an end with the expiry of the project or scheme and the workers must be shown to have been made aware of such stipulation at the commencement of their employment. Their Lordships further held that the workmen under the project or scheme, subject to satisfying the prescribed condi