Tarun Agarwala, J. - (1.) THE workman is seeking vindication of his wrongful termination with effect from 14th May, 1983 and hopefully, the matter will now be set as rest after 25 years.
(2.) IT transpires that the workman was engaged sometimes in 1997 as a daily wager in the petitioner's Nigam which is a construction agency of the State Government and was employed for the construction of the godowns of Food Corporation of India at various places. The service of the workman was dispensed on 15th May, 1983. The workman raised a dispute which was referred by the State Government in the year 1986. An award was made on 24th February, 1989 allowing the claim of the workman and directing reinstatement with continuity of service and with full back wages. The petitioner filed a writ petition No. 7197 of 1998 which was allowed by a judgment dated 23rd February, 2004. The Writ Court, while allowing the writ and setting aside the award, remitted the matter again to the Labour Court to decide and give a finding as to whether the workman had worked for more than 240 days in a calendar year or not. Upon remand, parties filed their evidence. The workman filed an application praying that the employers be directed to file the muster roll registers for the relevant period. The petitioners did not file the muster roll registers and instead filed an objection, stating that the burden of proof that the workman had worked for more than 240 days in a calendar year was upon the workman and not upon the petitioner. The Labour Court after considering the matter, drew an adverse inference against the petitioner for the non-production of the registers and held that the workman must have worked for more than 240 days in a calendar year and, accordingly, gave an award directing reinstatement with continuity of services and with back wages. The petitioner, being aggrieved, has filed the present writ petition. Heard Sri Vivek Sharma, the learned counsel for the petitioner and Sri Namit Srivastava, the learned counsel, holding brief of Sri Dhruv Narayan, the learned counsel for the respondent workman.
(3.) THE learned counsel for the respondents submitted that the finding of the Labour Court drawing an adverse inference to the effect that the workman had worked for more than 240 days in a calendar year was patently erroneous, since the burden was upon the workman to prove this fact and, such burden could not have been fastened upon the employers. In support of his contention, the learned counsel placed reliance upon a decision of the Supreme Court in the case of Surendranagar District Panchayat v. Jethabhai Pitamberbhai, (2005) 8 SCC 450 and Batala Co-op. Sugar Mills v. Sowaran Singh, (2005) 8 SCC 481, wherein the Supreme Court held that the requirement to prove whether the workman had worked for more than 240 days in a calendar year was upon the workman. There is no quarrel with the aforesaid principle laid down by the Supreme Court in the aforesaid decisions. The workman has raised a claim under Section 4-K of the U.P. Industrial Disputes Act. The burden is upon him to prove his case but, when the workman states on oath that he has worked from 1977 till 1983 in the establishment of the petitioner, the workman has discharged that burden and now the onus shifts upon the employer to discharge its burden. The workman filed an application for the production of the muster roll registers to prove that he had worked continuously which could be proved by the production of the muster roll registers which was the best evidence.;