- (1.) CHALLENGE in the present writ petition is to the award dated 22.11.2010 (Annexure P -3) whereby, the reference was decided against the workman on the ground that he had failed to prove that he had worked for a continuous period of 240 days with the respondents during the preceding 12 calendar months.
(2.) A perusal of the record would go on to show that as per the claim statement, the workman had joined on 10.09.1996 and his services were dispensed with on 01.08.2003. The plea taken was that he had completed more than 240 days in a calendar year as required and thus, was entitled to the protection under the Industrial Disputes Act, 1947 (in short 'the Act'). The junior namely Surinder Kumar had been engaged after terminating the services of the petitioner but the petitioner had not been given preference as required under Section 25 -H of the Act and the work still existed. Accordingly, reinstatement was claimed for.
(3.) IN the written statement filed to the claim statement by the Department, plea taken was that the applicant was engaged on daily basis for watch and ward without any advertisement and he had no right as he had not worked for 240 days in any calendar year and was given work on temporary and casual basis depending upon the availability of work. He used to remain absent frequently and he has, on his own, left the work in the year 2003. No junior person had been engaged for the watch and ward and there was no vacant post of Chowkidar in the said Division. The Tribunal, after taking into account the deposition of Sh. Amit Kumar Raghuvanshi, Executive Engineer, Sonepat MW1 and the statement of the workman as WW1, came to the finding that the workman, apart from his deposition, had not led any cogent evidence and neither summoned the record regarding his attendance and the record regarding payment of wages which could have settled the entire dispute between the parties. Accordingly, it was held that it was settled principle that the onus initially lay upon the workman to claim the benefit and protection under Section 25 -F of the Act. It was noticed that the workman had no appointment letter and that there is no sanction of regular post and accordingly, it was held that he had failed to prove that he had completed continuous service of 240 days. Counsel for the petitioner has vehemently submitted that he had completed 240 days and once it was admitted that the workman had worked from September 1996 to 2003 and he had stated so in his deposition, an adverse inference should have been drawn for non -production of the muster rolls.;