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Chandra Shekhar Azad Univ & Another v. Labour Court & Another - WRIT - C No. 30994 of 1994  RD-AH 17432 (10 October 2006)
Judgement Reserved on 7.9.2006
Judgement Delivered on 10.10.2006
Civil Misc. Writ Petition No. 30994 of 1994
Chandra Shekhar Azad Krishi ... Vishwadalaya Kanpur and another Versus Labour Court Kanpur and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
This writ petition is directed against award dated 28.1.1994 given by presiding officer Labour court (I) U.P. Kanpur. Through the said award termination of services of respondent No.2 Naresh Kumar Nigam by the petitioners was declared to be illegal and it was directed that he must be reinstated and he must be paid wages at the rate of Rs.12/- per day with effect from 15.10.1988 till reinstatement.
The case of the employer petitioner was that respondent No.2 by himself stopped coming with effect from 15.10.1988. The case of the respondent No.2 was that he had continuously worked as daily wager from 2.6.1987 to 14.10.1988 i.e. more than 240 days in a year. On the other hand employers petitioners contended that respondent No.2 was appointed from 1.2.1988 to 30.6.1988 and thereafter from 1.8.1988 to 31.10.1988 while he worked only till 14.10.1988 (In total much less than 240 days). Petitioner had further pleaded that some special program for rice research was conducted for which several daily wagers including respondent No.2 were employed for a particular period. In para 12 of its award Labour Court observed that there were several decisions according to which burden to prove that employee had not worked for 240 days in a calendar year was upon employer and petitioner employer failed to discharge the said burden. The employee himself had filed appointment letter of November 1987.
Basically the entire award is based upon burden to prove. Gist of the award is that petitioner employer failed to prove that respondent No.2 employee had not worked for 240 days in a year hence termination was illegal for non-compliance of provisions of section 6-N of U.P. Industrial Disputes Act. The Supreme Court in several recent authorities has held that burden to prove that employee has worked for 240 days in a year squarely lies upon the employee vide R.M.Yallati Vs. Asst. Ex.En AIR 2006 SC 355 and Manager R.B.I Banglore Vs. S.Mani 2005(5) SCC 100.
Accordingly writ petition is allowed. Impugned award is set-aside. However, if under the award respondent No.2 has actually worked and been paid salary for the said period then the said salary shall not be refundable.
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