JUDGMENT : RAKESH TIWARI, J. 1. Heard counsel for the parties. 2. This petition and the other connected petitions with it arise out of common award passed by the Labour Court, Varanasi. The questions of law and facts involved in these writ petitions are similar. Hence, they are being disposed of by this common judgment, which shall also govern the other petitions. 3. The facts of the case are that the workmen in this petition and the connected writ petitions raised an industrial dispute before the Regional Conciliation Officer, Varanasi, challenging oral termination of their services with effect from 1st December, 1981. On conciliation proceedings having failed, the matter was referred to the Labour Court, Varanasi, for adjudication : (a) The case of the employers in Civil Miscellaneous Writ Petition No. 12123 of 1998 is that there is delay of 9 years in raising the dispute and that Respondents were never appointed by the U.P. State Electricity Board and as such there was no question of giving any salary to the workman Respondent No. 2. It is contended by the counsel for the Petitioner that there was complete ban of appointment of the employees and there was no relationship of employer and employee between the Petitioner and contesting Respondent No. 2. The workmen were never appointed by them and the certificate relied upon by the Respondent before the labour court was not reliable. The officer Shri B. L. Prasad, Executive Engineer, who is said to have issued certified, changed his stand before the labour court. Some time he stated that the certificates are false and some time he stated that the certificates are genuine. Therefore, the labour court has committed an illegality in placing reliance upon such certificates. (b) It is admitted case of Respondent No. 2 before the labour court that he was not given any appointment letter. He was a daily wager and was paid Rs. 8 per day when he worked as a muster roll employee/daily wager under the Executive Engineer, Electricity Distribution/ Supply Sub-station I, Ghazipur. (c) The labour court has given an award in favour of the workmen and against the employer on the basis of the certificates of working issued by the then Executive Engineer Shri B. L. Prasad. 8 per day when he worked as a muster roll employee/daily wager under the Executive Engineer, Electricity Distribution/ Supply Sub-station I, Ghazipur. (c) The labour court has given an award in favour of the workmen and against the employer on the basis of the certificates of working issued by the then Executive Engineer Shri B. L. Prasad. The employees had filed the certificates of their working and conduct, which is said to have been issued by Shri B. L. Prasad, and proved these certificates in their oral evidence. It was alleged that letter dated 8th January, 1990, was produced on record by the workmen, issued by the Superintending Engineer to the Chief Engineer recommending and forwarding the names of muster roll employees for their regularisation. The workmen also produced the report of Shri Niranjan Srivastava, Handwriting Expert, in support of their case that the certificates of working were issued by Shri B. L. Prasad. (d) On behalf of the employers report of Handwriting Expert Shri Vikas Srivastava was produced and the then Executive Engineer Shri B. L. Prasad also adduced evidence before the labour court as employer's witness. The labour court, after appreciation of the evidence, gave following findings : (i) All the certificates filed by the employees were issued by Shri B. L. Prasad. From these certificates it is apparent that the employees had worked for more than 240 days in one calendar year, but their services were terminated without compliance of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947 (ii) The employees had not given the names of their officers under whom they worked and also the names of other employees with whom they worked at the relevant time. But since the employer did not produce those officers or employees under whom the workers in dispute had worked, the case of employees was disbelieved. (iii) The employer had produced only Shri B. L. Srivastava and no other witness. (iv) On the point of delay under reference, the labour court held that from the perusal of list of retrenched employees dated 1 August, 1990, it is clear that the employees, who were engaged staged Dharna till 1980, and when nothing came out of it, they raised the industrial dispute. (iv) On the point of delay under reference, the labour court held that from the perusal of list of retrenched employees dated 1 August, 1990, it is clear that the employees, who were engaged staged Dharna till 1980, and when nothing came out of it, they raised the industrial dispute. The delay having been condoned by the Conciliation Officer, the labour court did not find any reason to reject the case of employees on the ground of delay. (v) The labour court has held that it was clear from the record that all the employees had worked and further some of the juniors to the workmen in question having been retained, therefore, the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947, are breached. Further at the time of retrenchment/ termination, no notice pay, notice or retrenchment compensation was given to the employees, which was in violation of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947. (vi) The labour court vide it's award held that the termination of services of 27 employees was illegal and directed them to be reinstated in service with continuity. However, the labour court molded the relief of back wages and held that all the 27 employees shall be paid their back wages from the date of reference of their cases at the rate of wages at the relevant time. 4. The Petitioner has contended that the certificates issued were doubted by the labour court and as such the impugned award could not be passed in favour of the workmen on the basis of its findings on such certificates, which were found to be issued fraudulently. He submits that the certificates were issued on back dates by Shri B. L. Prasad, who was a corrupt officer. He stressed that Shri B. L. Prasad was retired and enquiry against him was pending. The award given by Respondent No. 1 has also been assailed on the ground that it was not recorded which of the alleged workmen had actually worked and completed 240 days of continuous service. He submits that delay of about 9 years has not been explained and the dispute could not have been referred as it had become stale. The award given by Respondent No. 1 has also been assailed on the ground that it was not recorded which of the alleged workmen had actually worked and completed 240 days of continuous service. He submits that delay of about 9 years has not been explained and the dispute could not have been referred as it had become stale. He submits that Respondent No. 1 has failed to explain that there was relationship of employer and employee between the Board and Respondent No. 2, who was a muster roll employee and as such paying retrenchment compensation does not arise merely because the Respondent-workmen had produced forged certificates of working and that the labour court has failed to appreciate that fraud has been played by the workmen in collusion with then Executive Engineer. The question whether the labour court has committed illegality in the award depends upon the evidence and document on record of working of the workmen, i.e., the certificates issued by Shri B. L. Prasad. 5. The labour court has recorded findings in regard to the certificate relied by Respondent No. 2 : 6. From the statement of Shri B. L. Prasad, it is found that he has given contradictory statements in regard to the proceedings. The labour court has also termed Shri B. L. Prasad as fraud witness and not reliable one and has given a further finding of fact that all the certificates issued by B. L. Prasad have been given by him to the workers after termination from service. 7. Apart from above, the labour court has not recorded any specific finding after relying on the record as to how the workmen have completed 240 days of service. Mere giving period of working does not mean that they have actually worked 240 days in a year. More so, the names of juniors have not been given by the workmen and it was not possible for the employer to have met the case of workers without their names and other particulars made available to them. The workmen, therefore, cannot claim discrimination and this plea was wholly misconceived and could not have been taken into consideration by the labour court. The findings of the labour court have to be based on some evidence and particulars by which the party contesting the claim can verify and has an opportunity to rebut. 8. The workmen, therefore, cannot claim discrimination and this plea was wholly misconceived and could not have been taken into consideration by the labour court. The findings of the labour court have to be based on some evidence and particulars by which the party contesting the claim can verify and has an opportunity to rebut. 8. It is not denied that under the Rules, framed under the U.P. Industrial Disputes Act, 1947, i.e., U.P. Industrial Disputes Rules, 1957, the Respondent No. 2 could summon the records in support of his case. But sadly enough, no effort was made by Respondent No. 2 to summon the record. In this regard the statement made by Shri B. L. Prasad is relevant, which reads thus : 9. In so far as the question of delay is concerned, the Conciliation Officer has condoned the delay in his discretion. However, workmen should have summoned the Executive Engineer, the officers and workers with whom they had worked in support of their case. The burden of proof is always on the claimant or the party raising the dispute. This proposition has been firmly established by the Apex Court in a catena of decisions and has been followed by this Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, AIR 1979 SC 1652 , it was observed : When the dispute comes before the Industrial Tribunal by way of a reference u/s 10 it is the aggrieved workman who has sought adjudication of the industrial dispute arising from the termination of his service. When the matter comes before the appropriate authority u/s 33 it is the employer who has moved for permission or approval of its intended action. Where is the reference is at the instance of a workman u/s 10 the Tribunal would call upon the workman to file his statement of claim and thereafter the employer would be called upon to file its written statement. Where is the reference is at the instance of a workman u/s 10 the Tribunal would call upon the workman to file his statement of claim and thereafter the employer would be called upon to file its written statement. Rule 10B of the Industrial Disputes (Central)Rules, 1957, provides that within two weeks of the date of receipt of the order of reference, the party representing workman and the employer involved in the dispute, shall file with the concerned authority a statement of demands relating only to the issues as are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the said dispute. Where is the reference is at the instance of a workman u/s 10 the Tribunal would call upon the workman to file his statement of claim and thereafter the employer would be called upon to file its written statement. Rule 10B of the Industrial Disputes (Central) Rules, 1957, provides that within two weeks of the date of receipt of the order of reference, the party representing workman and the employer involved in the dispute, shall file with the concerned authority a statement of demands relating only to the issues as are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the said dispute. Similarly, when the employer seeks permission for taking the intended action or seeks approval of the action taken by it u/s 33 it has to make an application as provided by Rule 60 in either Form J or K as the case may be. Both the forms require that the necessity for and circumstances in which the proposed action is taken or is intended to be taken must be clearly and specifically set out and either express permission should be sought before taking the intended action or an approval of the already taken action must be sought. In the case of Airtech Private Limited v. State of U.P. and Ors. 1984 (49) FLR 38, it has been held : Section 5C(1) of the Act provides that subject to any rules that may be made in this behalf, a labour court shall follow such procedure as it may think fit. It is, therefore, clear that the discretion of the Court is not absolute. 1984 (49) FLR 38, it has been held : Section 5C(1) of the Act provides that subject to any rules that may be made in this behalf, a labour court shall follow such procedure as it may think fit. It is, therefore, clear that the discretion of the Court is not absolute. It is circumscribed by Rules, if any. We have therefore, to look to the U.P. Industrial Disputes Rule, 1957. Rule 12 provide that where the State Government refers an industrial dispute for adjudication to a labour court within two weeks of the date of receipt of the order of reference, the workmen and the employers involved in the dispute shall file before the labour court a statement of the demands relating to the issues as are included in the order of reference. Sub-rule (8) provides that the written statement filed by the Union or the workman shall state the grounds upon the claim of the concerned workmen is based and the written statement shall be accompanied by an affidavit in which the statement contained in the written statement should be sworn to. Sub-rule (9) states that if the statement accompanied by the affidavit of the Union or the workman is not repudiated by the employer, the labour court shall presume the contents of the affidavit to be true and make an award accepting the case stated in the written statement. From a combined reading of Section 5C(1) and the aforementioned sub-rules of Rule 12 it is apparent that it is imperative upon a workman to file an affidavit in support of his written statement. This affidavit constitutes the preliminary evidence. If the employer does not care to controvert the averments made in the affidavit nothing further need be proved or done by the workman. The labour court is duty bound to accept the averments contained in the affidavit and give its decision or award accepting the averments made in the affidavit as correct. These provisions indicate that the burden of proving the case referred to the labour court for adjudication by the State Government lies on the workman. The distinction between a burden to proof and the onus of proof is well known. It is trite that the burden of proof never shifts. It is the onus which keeps on shifting from stage to stage. The distinction between a burden to proof and the onus of proof is well known. It is trite that the burden of proof never shifts. It is the onus which keeps on shifting from stage to stage. The labour court patiently erred in holding that keeping in view the terms of the reference made by the State Government the burden of proof lay upon the employer. The matter can be looked at from another angle, which party will fail if the evidence is not led before the labour court in proceedings in a reference made to it for adjudication by the State Government? The obvious answer is that the workman will fail. Here the reference was made by the State Government at the instance of the workman and for the benefit of the workman. In the absence of any evidence led by or on behalf of the workman the reference is bound to be answered by the Court against the workman. In such a situation it is not necessary for the employers to lead any evidence at all. This matter was dealt with by the Supreme Court in Shanker Chaudhary v. Britannia Biscuits Co. Ltd. In paragraph 30 the Court held that the labour court or the Industrial Tribunal have all the trappings of a Court. In paragraph 31 it held that any party appearing before a labour court or Industrial Tribunal 'must' make a claim or demur the claim of the other side and when there is burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence. It must seek an opportunity to lead evidence. Similar view has been taken by a Division Bench of this Court in the case of V.K. Raj Industries v. Labour Court and Ors. : 1979 (39) FLR 70 . In the case of V.K. Raj Industries v. Labour Court and Ors. The test would be, who would fail if no evidence. It must seek an opportunity to lead evidence. Similar view has been taken by a Division Bench of this Court in the case of V.K. Raj Industries v. Labour Court and Ors. : 1979 (39) FLR 70 . In the case of V.K. Raj Industries v. Labour Court and Ors. referred to in the case of Airtech (supra), the same view has been taken to the effect: The proceedings before the Industrial Court are judicial in nature even though the Indian Evidence Act does not apply to the proceedings but the principle underlying the said Act is application to the proceeding before the Industrial Court. In a judicial proceeding if no evidence is produced the party challenging the validity of the order must fail. It is well-settled that if a party challenges the legality of an order, the burden lies upon him to prove illegality of the order and if no evidence is produced the party invoking jurisdiction of the Court must fail. Whenever a workman raises a dispute challenging the validity of the termination of service it is imperative for him to file written statement before the Industrial Court setting out grounds on which the order is challenged and he must also produce evidence to prove his case. If the workman fails to appear or to file written statement or produce evidence the dispute referred by the State Government cannot be answered in favour of the workman and he would not be entitled to any relief. 10. No doubt, Shri B. L. Prasad was produced by employers as their witness. But from his statement and evidence on record it cannot be said that there is no illegality or infirmity in the award. The labour court has given categorical findings of fact on the basis of evidence of Shri B. L. Prasad on which the labour court placed reliance to the effect that these certificates were forged and back dated. The relief of reinstatement could not have been returned by the labour court. Admittedly, Respondent No. 2 was daily wager and was not working against any post. He cannot be treated in continuous service. At the most he could have been reinstated as a daily wager. In a number of cases it has been held that a daily wager has no right to post. Admittedly, Respondent No. 2 was daily wager and was not working against any post. He cannot be treated in continuous service. At the most he could have been reinstated as a daily wager. In a number of cases it has been held that a daily wager has no right to post. Reinstatement means taking back in service on the same nature of job. Admittedly, Respondent No. 2 did not work against any post and the employer had option to terminate the services of a daily wager, who has not completed 240 days of service after payment of compensation. The fact of this case being disputed and based on false certificate, the appropriate remedy would have been for the labour court to have granted relief of compensation. Respondent No. 2, being a daily wager, the certificate was, admittedly, issued to him after his termination by B. L. Prasad, who was retired from service. These workmen had never worked under him and the labour court itself was convinced about the genuineness of the certificates in question. As a daily wager the concerned workmen would have most been entitled to a month's wages in lieu of notice. There is no cogent reason given by the Respondent No. 2 for the delay in raising the dispute and the delay has already precipitated for long 9 years. The burden of proof was on the workers to establish their claim. They did not produce the officers and workers with whom they claimed to have worked for 240 days. The labour court committed an illegality in relying upon such unproved statement and its findings are perverse. It is stated that the workers have been reinstated in service and they have also moved applications for recovering the amount under the award. 11. For the reasons stated above, substantial justice would be done between the parties if the award of the labour court is modified to the extent that the wages to the workman be paid from the date he joined in service pursuant to the award and shall not be paid any back wages prior to that date with liberty to the employer to keep them in employment if their services are required or terminate their service in accordance with law after payment of retrenchment compensation etc. 12. The writ petitions partly succeed and are allowed. No order as to costs.