JUDGMENT
Rakesh Tiwari, J.
1. I Heard Sri Gulrez Khan, Advocate, holding brief of Sri W.H. Khan, Counsel for the petitioners and Sri Siddharth, Counsel for the respondents.
2. This writ petition has been filed arising out of the award dated 4.9.2000 (published on 21.5.2001), passed by the labour Court-II, U.P. Ghaziabad in adjudication case No. 243 of 1994.
3. The undisputed facts of the case are that the workman respondent was engaged as a daily-wager in the petitioners’ establishment during the span of period 16.12.1990 to 30.9.1991. The workman was disengaged w.e.f. 30.9.1991.
4. Aggrieved by his disengagement, the workman raised an industrial dispute which was registered as C.P. Case No. 76/92. The conciliation proceedings between the employer and the employees having failed, the following matter of the U.P. Industrial Disputes Act, 1947 in exercise of power under Section 4-K by the State Government was referred to the labour Court-II U.P. Ghaziabad where it was registered as adjudication case No. 243/94.
5. The case of the workman before the Labour Court was that during the aforesaid span of his working during 16.12.1990 to 30.9.1991, he had worked for 260 days continuously in the establishment of the employers and that he had been disengaged without compliance of Section 6-N of the U.P. Industrial Disputes Act, whereas the case of the employer before the labour Court was that workmen though admittedly had worked for the aforesaid period as claimed by him but he had not continuously worked for 240 days or more, as such, Provisions of Section 6-N of the UP. Industrial Disputes Act are not applicable.
The parties led oral evidence before the labour Court but no documentary evidence was filed by either of the parties in support of their case regarding actual working of continuous service by the workman.
The labour Court relying upon the oral evidence of the workman that he has worked for 260 days held that disengagement of his service was illegal for non-compliance of Section 6-N of the U.P. Industrial Disputes Act 1947. The labour Court came to this conclusion on the basis that the employer’s witness had stated that the workman had not worked for 240 days of continuous service in 12 calender months based upon his seeing of the records but he had not brought their records before the labour Court.
Admittedly, the burden of proof of continuous working of at least 240 days or more in the establishment is upon the workman, as has been held by the Apex Court in catena of decisions. In case the employer had any documentary evidence of actual working of the workman concerned in his possession the workman could have moved an application for summoning those records and ought to have proved his case before the labour Court. No reason has been given by the labour Court for simply relying upon the statement of workman that he has worked for 260 days and disbelieving the employer’s witnesses.
The question of fact whether the workman had actually worked at least for 240 days or more or not, therefore, could not have been decided on mere statements of the witnesses to raise by the labour Court on the basis of documentary evidence under U.P. Industrial Disputes Act, 1947 and under Rule 12 framed in exercise of powers under Section 23 of the U.P. Industrial Disputes Act, 1947. The procedure to proceed in adjudication of case has been provided the Presiding Officer is vested with power to entry and inspection under Rule 17 of the aforesaid Act. Moreover, Rule 21 provides for:
Power of labour Courts. Tribunal and Arbitrators: In addition to the powers conferred by the Act, Labour Courts, Tribunals and Arbitrators shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908 (Act V of 1998), when trying a suit, in respect of the following matters, namely-
(a) discovery and inspection;
(b) granting of adjournment; and
(c) reception of evidence taken on affidavit; and the Labour Court or Tribunal or Arbitrator may summon and examine any person whose evidence appears to it/him to be material.
6. Neither the documents were got summoned by the workman in support of his case for discharging his burden of proof nor the labour Court itself summoned any witnesses or the documents or exercise its power under Industrial Disputes Act, 1947 and Rules framed thereunder, hence the labour Court committed an illegality in shifting the onus as well as burden of proof of actual working upon the employers.
7. It may be noted that the parties are represented before the labour Court by authorised representative and not by qualified advocates, therefore, the burden to do justice and to show that justice is being done is upon the Court. If the parties are not well conversant with the procedure, they must be informed by the Court about the procedure or exercise its power under Rules where it is necessary and expedient in the interest of justice.
8. For the reasons aforesaid and for the fact that the labour Court has not given any basis for disbelieving of the employer’s witness and relying upon the workman evidence for the purpose of arriving at the conclusion that workman had worked for 240 days or more continuously, the evidence is not sufficient basis for the award in deciding the reference in favour of the workman.
9. In my opinion, the award of the labour court suffers from an error apparent on the face of record and illegality in shifting the burden on employer to prove that the workman had not worked for 240 days. It was the workman who has come in the adjudication proceedings and therefore in accordance with settled principles of law, it was the workman to prove his case.
10. For the reasons stated above, writ petition is allowed. The impugned order is quashed. The matter is remanded back to the labour Court to decide the matter afresh in accordance with law within a period of six months from the date of production of certified copy of this order by either of the parties before it.
Consequently, the recovery notice dated 13.8.2001 passed in pursuance of the award aforesaid is also quashed.