JUDGMENT

The award of the labour court dated 4.3.2021 reinstating the workman without any back wages is under challenge on behalf of the petitioner management.

2. According to the claim statement of the respondent workman, from 2012 was holding a post of Gardner in Attukal Bhagavathy Temple Trust, Thiruvananthapuram and after having rendered 5 years of service in the month of July 2017, his services were terminated. The service during the period of employment was without any engagement or any misconduct or otherwise. The termination was against the provisions of Section 25(F) of the Industrial Dispute Act. Petitioner management contested the aforementioned claim and denied that he was not in continuous service and had not rendered 240 days in a year bringing the case within the provisions of the Industrial Dispute Act or definition of workman. In fact he was an autorickshaw driver and had been engaged on daily wages as per the exigencies. There was a crime case bearing No.1748 of 2017 was registered under Section 440, 506(ii) and and 34 of the IPC registered against the respondent workman.

3. Learned counsel appearing on behalf of the petitioner submitted that the finding of the labour court in fastening the liability of proving the continuous service of the workman ie., of having rendered 240 days and not producing records relating to the employment by drawing adverse inference is not sustainable in the eyes of law in view of the ratio decidendi culled out in R.M Yellatti v. Asst. Executive Engineer (2006 KHC 9) and Surendranagar District Panchayat v. Dahayabhai Amarsinh (2005 KHC 1955). In paragraph 12 and 17 of the aforementioned judgment, it was held that the burden is always on the workman to adduce the direct and cogent evidence that he had worked for 240 days. Drawing of the adverse inference would depend only after examination of the evidence as to what proper and appropriate steps had been taken by the parties but that cannot be a ground for fastening liability upon the management.

4. On the other hand, learned counsel appearing on behalf of the workman supported the award and submitted that the onus though is always on an employee to prove that he had worked continuously for 240 days and the documentary evidence placed on record ie., the identity card reflected that he was issued identity card of a Gardner. If at all, the employment was not continuous and had a break of one month or otherwise as per the case of management, different identity cards were required to be issued.

The criminal case registered against him resulted into an acquittal and urged this Court for upholding the award by dismissing the writ petition.

5. I have heard the learned counsel for the parties and appraised the paper book. In the cited judgment R.M Yellatti (supra), paragraph 17 is required to be extracted. The same reads thus:

Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that m