- (1.)Both the captioned petitions are cognate. They are the cross petitions arising from judgment and order dated 01.08.2014 passed by Labour Court No.5, Ahmedabad, in Reference (LCA) No. 1460 of 1998. Thereby, the Labour Court partially allowed the reference of the workman and directed the employer to reinstate him on his original post on the same terms and conditions of service, with continuity and 20% backwages; cost of Rs.1000/- was directed to be paid to the workman.
1.1 Special Civil Application No. 698 of 2015 is filed by the first party employer, seeking to challenge the aforesaid judgment and award. The second petition is by the workman, wherein he has prayed for grant of 100% backwages, feeling aggrieved that the Labour Court awarded 20% backwages only.

(2.)Being cognate and cross petitions, the facts were common, therefore, both the petitions were placed and heard together and being considered by this common judgment.
2.1 Learned advocate Mr. H. S. Munshaw for the petitioner-employer, since had been appearing in Special Civil Application No. 698 of 2015, he was asked to appear and make submissions on behalf of the respondent-employer also in the petition filed by the workman. Accordingly, he appeared in the other petition also.

(3.)The workman-petitioner of Special Civil Application No. 1554 of 2015 was employed as Farashcum- Peon with effect from 01.01.1997 under first party No.2 Granthalay (Library) run by first party respondent No.1. In the Statement of Claim at Exh.3 filed before the Labour Court, the workman stated that there were other employees about 200 in numbers were also engaged. The workman was aggrieved because of termination of service effected by the first party employer by oral order dated 13.01.1998. Invoking the jurisdiction of the Labour Court, he contended that the action of terminating the services was unjust, illegal and in violation of the Industrial Disputes Act, 1947, and it amounted to unfair labour practice.
3.1 The documents showed that the appointment of the workman was pursuant to a public advertisement in the newspaper. The workman had made application dated 23.10.1995 for being appointed on the post of Farash. He was thereupon asked in writing to remain present for the interview which was held on 01.06.1996. Those documents were produced on record with list of documents at Exh.10. The letter of appointment dated 25.06.1996 (Exh.51) showed that the workman was appointed as Farash-cum-Peon in the scale of Rs.750- 940. The Labour Court recorded the above undisputed facts emerging from the record and further recorded that the first party employer produced register of presence for the period from January 1997 to January 1998 and that from the said documentary material, the presence of the petitioner was indicative.

3.2 As regards completion of 240 days continuous service by the workman, the Labour Court considered the register of presence (Exh.53 to Exh.64) and concluded that the presence during the year was not 240 days, however at the same breath, after looking into the details of other employees-five of which were specifically mentioned by name, the Labour Court noted that none of them had completed 240 days for the reason that the library was not working for 240 days in any year. It was further observed that other employees who were recruited along with the workman as per Exh.51, were made permanent. The Labour Court proceeded to observe further that the certain documents and details about rendering of service by the workman were in the custody of the employer, which were not produced by the employer, therefore, adverse inference was liable to be drawn. The Labour Court on the basis of total evidence as above, came to a conclusion that the termination of services of the workman was without following requisite procedure required in law and was in breach of Section 25F and Section 25H of the Industrial Disputes Act. As regards backwages is concerned, the Labour Court inter alia observed that there were no clear evidence as regards as to whether the workman had earned during the intervening period. The Labour Court, in the facts and circumstances of the case, awarded 20% backwages.