MISRA, J. - (1.) THE petitioner-Public Works Department has challenged the award passed by the labour Court Bharatpur dated 2. 11. 99 by which the workman-respondent No. 1 Dev Sukh's termination has been held illegal and invalid and he was ordered to be reinstated with full back wages since it was held that his termination was in-contravention of Section 25-H of the Industrial Disputes Act, 1947. THE Labour Court specifically recorded a finding that the petitioner-Department had failed to prove its plea that the respondent-workman had been engaged for a fixed period in the Famine Relief Operation as no Notification to that effect was ever produced before the Labour Court. In so far as the computation of the number of days during which the respondent-workman discharged his duties in the Department was concerned, the same could also not be disputed as the petitioner- Department had failed to produce the muster-roll to prove to the contrary and therefore, a finding was recorded that the Department had failed to prove its plea that the respondent- workman had not worked on daily wages for 240 days.
(2.) IN so far as the grant of back wages is concerned, the learned Judge of the Labour Court recorded that the respondent- workman had succeeded in proving that he was not gainfully employed else where during the period during which he was out of job and the Department neither produced any evidence to prove it otherwise nor the workman cross examined in order to demolish his plea regarding claim of back wages. The award was therefore, passed in his favour as already stated hereinbefore. The respondent-workman also succeeded in getting the award partially implemented as the Payment of Wages Authority passed an order computing his back wages and an amount of Rs. 1,11,000/- towards back waged for the period from December 1987 to August 2002 has also been paid to the respondent-workman. The counsel for the petitioner Mr. Hanuman Choudhary has reported the submissions which was advanced before the labour Court to the effect that the respondent-workman had not completed 240 days and further submitted that an inference should have been drawn by the Labour Court that the workman was gainfully employed as it would be impractical to inter that the workman would be sitting idle during which he was not in the service of the Public Works Department. The Plea regarding error in computing the number of days during which the respondent-workman discharged his duties as a daily wager is concerned, the same is difficult to be doubted since the Department had failed to produce the muster-roll before the Labour Court and the consequence therefore has to be borne by the Department itself which had further failed to produce the Notification in absence of which it cannot be allowed to be urged that the respondent-workman was engaged for a fixed period for conducting the Famine Relief Operations. The other aspect of the matter-regarding grant of back wages also the employer-department was under an obligation to prove that the respondent-workman was gainfully employed elsewhere and this Court cannot draw adverse inference against the workman if the employer failed even to cross examine the workman in this respect before the labour Court. Therefore, the plea of the petitioner's advocate that adverse inference should have been drawn taking a common sense view point that a labourer was bound to be engaged some where else during which he was out of job, is difficult to accept since the burden clearly lay upon the Department to demolish the case of the labour that he was not engaged anywhere and that he had not earned a single penny during all these years. The writ petition filed by the Public Works Department therefore, is not fit to be accepted by setting aside the impugned award by the Labour Court. The writ petition under the circumstance stands dismissed, but in the circumstance without costs. .;