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Shri Kanhaiya Singh v. Presiding Officer And Others - WRIT - C No. 15528 of 1997 [2006] RD-AH 17242 (5 October 2006)


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Judgment Reserved on 20.9.2006

Judgment Delivered on 5.10.2006


Civil Misc. Writ Petition No. 15528 of 1997

Sri Kanhaiya Singh Versus Presiding Officer Central Government (I.T) Labour Court Kanpur and others.

Hon'ble S.U.Khan J

Heard learned counsel for the petitioner. No one appeared for respondents at the time of arguments.

This writ petition has been filed by the workman and is directed against award dated 24.12.1996 given by Presiding Officer Central Government Industrial Tribunal Cum Labour Court Kanpur in Industrial Tribunal Case No. 182 of 1989. The reference, which was made by the Government for decision to the industrial tribunal was to the following effect:

"Whether the action of management of Bank Of Baroda in terminating the services of Sri Kanhaiya Singh and Ram Balak Yadav and not considering them for further employment while recruiting fresh hands under section 25 H of Industrial Disputes Act is justified? If not to what relief are the workmen concerned entitled?"

Only Sri Kanhaiya Singh has filed this petition.

Industrial Tribunal held that workman could not prove that after his removal any other person was appointed at his place. Petitioner contended that Ram Lal had been engaged after his retrenchment. In the claim statement, no name was given. Name of Ram Lal as subsequently engaged was for the first time stated in oral statement before the Industrial Tribunal. Details of place and date of recruitment were not given hence Labour Court held that management could not confirm or deny the said fact. Labour Court held that provisions of section 25-H of Industrial Disputes Act had not been violated. Ultimately the matter was decided against the petitioner by holding that his termination was not bad.

As far as the plea of petitioner in respect of benefit of section 25- H of the Act is concerned, I do not find any error in the impugned award. No definite statement was made regarding recruitment and employment of any person after termination of petitioner's service.

Learned counsel for the petitioner has very vehemently argued that in his claim petitioner had stated that he had worked for 347 days from 26.5.1981 to 31.5.1983 and during this period he worked for more than 240 days in a year but Industrial Tribunal did not decide this question. Petitioner had not made any specific claim in respect of this  assertion. He only stated that in 2 years i.e. from 26.5.1981 till 31.5.1983, he worked for 347 days. Management in its written statement in para 2 under sub heading objection on merits, clearly stated that the petitioner had worked on the following days :

1. 2.6.1981 to 5.12.1981 (164 days)

2. 4.10.1982 to 21.12.1982 (66 days)

3. 7.3.1983 to 7.4.1983 (27 days)

After filing of the written statement by management, Union filed its reply to the written statement filed by the management. In the said reply the assertion of the management in respect of number of days on which petitioner had worked was not denied. In his oral statement also, petitioner did not deny the said assertion. From the above details, it is crystal clear that petitioner had not worked for 240 days in a year hence there was no question of setting aside the impugned order due to violation of section 25-F of the Industrial Disputes Act. Burden to prove that employee has worked for more than 240 days in a year squarely lies upon the employee vide Chairman ONGC Vs. S.C Bhawnik AIR 2006 SC 392 and R.M. Yallati Vs. The Asst. Ex. En J.T 2005 (9) SC 340.

Accordingly, I do not find any error in the impugned award hence writ petition is dismissed.




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