JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard. Perused the records. 2. Since common questions of law and facts arise in both the petitions, they were heard together and are being disposed of by this common judgment. 3. The petitioners are challenging the award dated 11-9-1998, passed in Reference No. CGIT-57 of 1994, rejecting the claim of the petitioners for reinstatement with continuity in service and full back wages from 24-2-1992. 4. It is the case of the petitioners that since 1991 they were continuously employed by the proprietor of the firm, namely, National Freight Carriers, which was subsequently taken over by the respondent with effect from 17-9-1992 and their services were continued uninterruptedly with the respondent even after such taking over of the concern. However, their services were abruptly terminated with effect from 24-10-1992 without following the procedure under the law. On the other hand, it is the case of the respondents that the company took over the said proprietory concern and as regards the employees of the said concern, on 22-10-1992 a settlement was entered into between M/s. National Freight Carriers and the Transport and Dock Workers Union before the Regional Labour Commissioner (Central), Bombay and in terms of the said settlement those workers who had completed 240 days attendance with the proprietor of M/s. National Freight Carrier were absorbed in the services of the respondent-company and thereby 52 workers, out of the total of 214 workers of the said concern, who had not completed 240 days, were not absorbed in the services of the respondent-company. The petitioners, according to the respondent-company, are amongst those 52 workers who had not completed 240 days. The Industrial Tribunal, in the reference under the Industrial Disputes Act, 1947, hereinafter called as "the said Act", after hearing the parties and considering the evidence led by both the parties, held, that in the absence of evidence neither the claim of the workmen that they had put in 240 days of continuous employment nor their contention that the termination was in violation of the provisions of the said Act has been established. It is further held that the workmen had been in service only for the period from 17-7-1992 to 24-10-1992. It is further held that the workmen had been in service only for the period from 17-7-1992 to 24-10-1992. The contention of applicability of the provisions of the Bombay Shops and Establishments Act, 1948, hereinafter called as "the BSE Act", to the workmen governed under the Motor Transport Workers Act, 1961, hereinafter called as "the MTW Act" has also been rejected by the Industrial Tribunal. Hence the present petition. 5. The challenge to the impugned award is on two grounds; firstly that the finding of the Tribunal about the absence of evidence regarding completion of 240 days of continuous employment with the respondent-company is perverse and contrary to the materials on record and ignoring the failure on the part of the respondent to lead evidence in support of denial of such claim by the petitioners. Secondly, it is the case of the petitioners that undisputedly having worked continuously from 17-7-1992 to 24-10-1992, irrespective of transfer of ownership of the undertaking, the services of the petitioners could not have been terminated without giving a proper notice under the said section 66 of the BSE Act and admittedly, no such notice was served upon the petitioners and therefore the termination of services of the petitioners was illegal and the same has been totally ignored by the Industrial Tribunal and hence the impugned award needs to be set aside. Reliance is sought to be placed in the decisions in the matters of (N.L. Mehta Cinema Ent. P. Ltd. v. Vijay G. Shivgan others)1, reported in 1993(III) L.L.J. (Supp.) 351, (State of Orissa v. Balakrushna Satpathy)2, reported in 1995 (Supp. 4) S.C.C. 511, (Bachi Ram v. Union of India and others)3, reported in A.I.R. 1986 S.C. 999, (M/s. Avon Services Production Agencies (P.) Ltd. v. Industrial Tribunal, Haryana and others)4, reported in 1979(1) S.C.C. 1 , and (Messrs. Anamalais Bus Transport Private Ltd., Chalakudi v. D. Ramakrishna Pillai and another)5, reported in A.I.R. 1967 Kerala 225. On the other hand, the impugned award is sought to be justified contending that the finding regarding absence of evidence pertaining to completion of 240 days of continuous service by the petitioners is clearly borne out from the record and it does not disclose any perversity and therefore need not be interfered with in writ jurisdiction. On the other hand, the impugned award is sought to be justified contending that the finding regarding absence of evidence pertaining to completion of 240 days of continuous service by the petitioners is clearly borne out from the record and it does not disclose any perversity and therefore need not be interfered with in writ jurisdiction. As regards the claim for notice under section 66 of the BSE Act, it is firstly contended that there was no termination as such of the petitioners from the services of the respondent but it is a case of non-absorption in the services of the respondent in accordance with the terms of the settlement arrived at with M/s. National Freight Carriers and the Transport and Dock Workers Union on 22-10-1992, and secondly that the provisions of section 66 of the BSE Act are not at all attracted in the case in hand as, admittedly, the petitioners are the workmen under the MTW Act and hence the question of application of the provisions of the BSE Act does not arise. Reliance is placed in the decision of the learned Single Judge of this Court in the matter of (Corporation of the City of Nagpur through Shop Inspector v. Lalbhai Amrutlal Mehta, Managing Partner M/s. Inland Carriers, Nagpur and another)6, reported in 1986 Mh.L.J. 486, and in the decisions of the Apex Court in the matter of (Range Forest Officer v. S.T. Hadimani)7, reported in 2002(3) S.C.C. 25 and (Essen Deinki v. Rajiv Kumar)8, reported in 2002(8) S.C.C. 400 . 6. As regards the first ground of challenge, the Tribunal, on analysis of the evidence produced on record by the both parties, has held that there is no documentary evidence produced by either of the parties in relation to the matter in issue for the period prior to June, 1992 except the dock entry permit for 30 days from 5-3-1991 to 5-4-1991 produced by one of the employees, namely, Shri Dattu Sukhdev Parekar, who is the petitioner No. 3 in Writ Petition No. 2700 of 1999. As far as the respondent is concerned, the Tribunal has observed that it has been their case that the attendance registers relating to the period prior to June, 1992 were destroyed in a fire accident and the fact of the fire accident was proved by the report of the police which was marked as Exhibit-MW1 as well as the FIR which was filed by the management. Once it was established by documentary evidence that the records prior to June, 1992 were destroyed in a fire accident and the incident of fire having been established and the evidence in that regard having been believed by the Tribunal and the conclusion arrived at in that regard cannot be said to be either perverse or totally improbable. It is to be held that no records regarding attendance of the workers were available with the respondent in relation to the period prior to June, 1992. Undoubtedly, mere attendance register cannot be said to be the only evidence which can establish as to whether a particular person has rendered services to his employer or not. There can be other documentary evidence also available in that regard in the form of accounts pertaining to the payment of salary, etc. At the same time, it cannot also be disputed that a worker who is employed with an establishment is also bound to have some documentary evidence regarding his employment. Mere claim of absence of issuance of the appointment letter or the other documentary evidence in support of the services rendered by the employee cannot be always accepted as the whole truth in a matter. In case there is any such practice followed by an employer of not furnishing any documentary evidence to the workmen in relation to the services rendered by them, and that too, continuously for a sufficiently long period, certainly such a practice will have to be established by leading necessary evidence by the workman and failure on the part of the workman to lead evidence in that regard would entitle the Court or the Tribunal to draw adverse inference against such workman in relation to his claim in a matter. In the case in hand, undoubtedly, one of the workmen had produced a temporary dock entry permit for 30 days for the period from 5-3-1991 to 5-4-1991 in support of the claim of the workmen that they were in continuous employment since the year 1991. Merely because the dock entry permit was issued for a specified period of 30 days, in the absence of any evidence to disclose the employment of the petitioners since 1991, certainly the said dock entry permit for 30 days would not be sufficient to believe the claim for the entire period. On the other hand, the evidence on record clearly establishes the destruction of records prior to June, 1992. The documentary evidence produced in the form of the attendance registers from June, 1992 onwards by the respondents apparently reveal that the workers were employed only from 17-7-1992 and not prior to that date. Undisputedly, there was no grievance made prior to 17-7-1992 about the failure on the part of the employer to record their attendance. Admittedly, in July 1992 the workmen were employed with the National Freight Carriers and not with the respondents. In the absence of any grievance made in that regard and the records disclosing employment of those workmen from 17-7-1992, and the records further revealing that the services rendered by the workmen were up to 24-10-1992, the findings arrived at by the Industrial Tribunal about the absence of evidence of continuous service of 240 days can, by no stretch of imagination, be said to be either perverse or not borne out from the records. 6. In this regard the learned Advocate for the respondents has also drawn attention to the decisions of the Apex Court in Range Forest Officer v. S.T. Hadimani (supra) and Essen Deinki v. Rajiv Kumar (supra). Both these decisions are in relation to the burden of proof on the workman who claims to have worked for more than 240 days in a year to prove the same. In the matter of Range Forest Officer, it was held that:--- "It was the case of the claimant that the had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. In the matter of Range Forest Officer, it was held that:--- "It was the case of the claimant that the had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman." The said decision was reiterated by the Apex Court in Essen Deinkis case, observing that "The requirement of the statute of 240 days cannot be disputed and it is for the employee concerned to prove that he has in fact completed 240 days in the last preceding 12 months period". Undoubtedly, in the case in hand, apart from filing affidavit by the workman concerned, and production of a dock entry permit for 30 days from 5-3-1991 to 5-4-1991 in relation to one of the employees, namely, Dattu Sukhdev Parekar, no other evidence was produced by the petitioners. Undoubtedly, it is the case of the petitioners that they were not issued with any appointment letter or any other document in relation to their employment. However, that did not prohibit the petitioners from calling upon the respondents or the proprietor and the National Freight Carriers to produce documentary evidence with them in relation to their employment, excluding the records which might have been destroyed in the course of the fire accident, as also by other witnesses who could have knowledge of the fact as to whether the petitioners had rendered continuous service for 240 days or not. In the absence of any such evidence being produced on record by the petitioners, no fault can be found with the finding regarding the absence of proof of completion of 240 days continuous service by the petitioners. Being so, there is no substance in the first ground of challenge to the impugned order. 7. In the absence of any such evidence being produced on record by the petitioners, no fault can be found with the finding regarding the absence of proof of completion of 240 days continuous service by the petitioners. Being so, there is no substance in the first ground of challenge to the impugned order. 7. As regards the second ground of challenge about the absence of notice under section 66 of the BSE Act and therefore the termination being illegal and the same being sought to be countered by contending on one hand that there was no case of termination but it was refusal of absorption and secondly that the provisions of the BSE Act are not applicable, it would be necessary first to deal with the issue as to whether it is termination or non-absorption. 8. It is not in dispute that the undertaking originally was a proprietary concern of one Mr. Alfred DSouza and it was taken over by the respondent No. 1 on 17-9-1992. It is also not in dispute that the petitioners were in employment of National Freight Carriers since 17-7-1992 and they continued to render their services till 24-10-1992. During the period while the petitioners were employed in the undertaking which originally belonged to Alfred DSouza, the same was transferred to the respondents on 17-9-1992. 9. Section 25-FF of the said Act provides that where the ownership of management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to or that undertaking to a new employer, every workman who has been in continuous service for note less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched. It is well-settled that when the undertaking is transferred the contract of service with the erstwhile owner of the undertaking comes to an end and the workmen are entitled for compensation in terms of the provisions of section 25-F, as if they are retrenched. They cannot insist for continuation of service with the transferee of the undertaking as a matter of right. They cannot insist for continuation of service with the transferee of the undertaking as a matter of right. However, there is a proviso to the said section 25-FF which provides that:--- "Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if--- (a) the service of the workman has not been interrupted by such transfer; (b) ............ (c) .............". As is seen above, irrespective of transfer of the undertaking from Alfred DSouza to the respondents, the services of the petitioners in the undertaking continued uninterruptedly till 24-10-1992. It is true that on 22-10-1992 a settlement was arrived at between M/s. National Freight Carriers and the Transport and Dock Workers Union and the respondents, whereby the respondents agreed for absorption of those workmen who had completed 240 days. Undisputedly, neither the agreement discloses as to whether this completion of 240 days will relate to the period prior to the day of the agreement i.e. 22-10-1992 or to the day of transfer i.e., 17-9-1992, nor there is any evidence in that regard produced by the respondents. However, in the absence of such disclosure in the agreement, it is needless to say that the agreement will take effect from the day it has been executed and therefore the period of completion of 240 days will have to relate to the day on which the agreement has been arrived at. Being so, the period of 240 days will have to be counted with relation to the day of the agreement i.e., 22-10-1992. Undoubtedly, this strengthens the contention of the petitioners that they were in continuous service interruptedly with the respondents even after the transfer of the undertaking from Alfred DSouza to the respondents. Being so, the respondents, cannot claim benefit of section 25-FF, ignoring Clause (a) of the proviso thereto. Certainly therefore there was denial of work from 24-10-1992 to the petitioners by the respondents. The point, therefore, which arises for consideration is as to whether the provisions of the BSE Act would apply to the petitioners case and therefore in the absence of notice under section 66 of the BSE Act, the denial of work from 24-10-1992 would amount to illegal termination of services of the petitioners. 10. The point, therefore, which arises for consideration is as to whether the provisions of the BSE Act would apply to the petitioners case and therefore in the absence of notice under section 66 of the BSE Act, the denial of work from 24-10-1992 would amount to illegal termination of services of the petitioners. 10. Section 2(h) of the MTW Act defines the expression "motor transport workers" to mean a person who is employed in motor transport undertaking directly or through an agency, whether for wages or not, to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time-keeper, watchman or attendant, but except in section 8 does not include---(1) any such person who is employed in a factory, as defined in the Factories Act, 1948, and (ii) any such person to whom the provisions of any law for the time being in force regulating the conditions of service of persons employed in shops or commercial establishments apply. Referring to this definition of "Motor Transport Workers" and undisputedly the business being the motor transport workers, it is the case of the respondents that the provisions of the BSE Act would not apply to the case in hand. In that regard, attention is drawn to section 37 of the MTW Act, the sub-section (1) of which provides that the provisions of the MTW Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of the MTW Act, provided that, where under any such award, agreement, contract of service or otherwise a motor transport worker is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under the MTW Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under the MTW Act. In that connection, it was argued on behalf of the respondents that the applicability of the provisions of other law are totally excluded in cases where the provisions of the MTW Act apply and what is saved is only the more favourable benefits, if any, available to the workman under any award, agreement or contract of service or otherwise. Being so, the provisions of the BSE Act can be of no help to claim illegal termination in the absence of notice under section 66 thereof. 11. Before considering the rival contentions on the issue under consideration, it would be worthwhile to refer to two judgments relied upon. In N.L. Mehta Cinema Ent. P. Ltd. v. Vijay G. Shivgan others (supra), it was observed that:--- "As per section 66 of the Bombay Shops and Establishments Act, 1948 an employer is not permitted to dispense with the services of an employees who has been in continuous employment for less than a year but more than three months without giving such person at least fourteen days notice in writing or wages in lieu of such notice." The Court therein was dealing with a case where a workman employed by the employer as a Booking Clerk from 1-10-1979 to 8-5-1980 in a theatre called "Barkha" on monthly wages of Rs. 315/-, on payment of his wages upto 8-5-1980, was informed on 9-5-1980 that his services were terminated with immediate effect and from that day he was not allowed to join duties. Apparently, that was not a case in relation to any motor transport worker. It was a case in relation to employment in a cinema theatre and it is nobodys case that the establishment of a theatre is not covered by the BSE Act. Being so, the decision in N.L. Mehtas case can be of no help to decide the issue in question. 12. The learned Single Judge of the Kerala High Court in the case of Messrs. Being so, the decision in N.L. Mehtas case can be of no help to decide the issue in question. 12. The learned Single Judge of the Kerala High Court in the case of Messrs. Anamalais Bus Transport Private Ltd., Chalakudi v. D. Ramkrishna Pillai and another (supra), considering the question of repugnancy between the provisions of the Kerala Shops and Commercial Establishments Act, 1960 and the MTW Act and bearing in mind the provisions of law contained in Article 254 of the Constitution of India, has held that there is no provisions in the MTW Act corresponding to section 18 of the Kerala Shops and Commercial Establishments Act, 1960 and, therefore, it is difficult to see any case of repugnancy or inconsistency arising between the two statutes. However, section 27(3) of the MTW Act seems to envisage discharge or dismissal from the service of a motor transport worker, but the MTW Act does not provide for dismissal or discharge, whereas section 18 of the Kerala Act, which provides for dismissal of an employee cannot be regarded as inconsistent with or repugnant to the provisions of the MTW Act, and that section 2(h) of the MTW Act excludes, inter alia, any such person to whom the provision of any existing law regulating the condition of service of the person employed in shops and commercial establishments apply. 13. 13. The learned Single Judge in the case of Corporation of the City of Nagpur through Shop Inspector v. Lalbhai Amrutlal Mehta, Managing Partner M/s. Inland Carriers, Nagpur and another (supra), after taking note of the judgment of the Patna High Court as well as of the Kerala High Court, referred to above, and after considering the various sections of the MTW Act as well as the BSE Act, has held that though the MTW Act did not, in express term, repeal the BSE Act, it is clear that the provisions of the latter Act stood repealed by necessary implication and on a comparative study of both the Acts, though the provisions of the former Act may not be identical, they substantially provide for the same matters covered by the latter Act, so far as the welfare of the motor transport workers is concerned, which is the object of the former, and it has been further held that the provisions of section 37 of the MTW Act are clear to the effect that the provisions of the MTW Act shall prevail in supersession of anything inconsistent in any other law or award or agreement or contract of service. Undoubtedly, the learned Single Judge therein was dealing with the issue as to whether an undertaking to which the provisions of the MTW Act apply, was required to be registered under the provisions of the BSE Act and the same was answered in the negative while holding that there was no question of contravention of the provisions of section 7 of the BSE Act on account of non-registration of the firm under the BSE Act. While pronouncing the said decision, it was specifically held thus:- "Now, section 8 of which an exception is made in the above definition deals with the provision of canteens for which the State Government may make Rules. What is not included in the definition is (i) any person who is employed in any factory run by the motor transport undertaking as defined in the Factories Act, 1948, and (ii) persons to whom provisions of any law regulating the conditions of service of persons employed in shops or commercial establishments apply. What is not included in the definition is (i) any person who is employed in any factory run by the motor transport undertaking as defined in the Factories Act, 1948, and (ii) persons to whom provisions of any law regulating the conditions of service of persons employed in shops or commercial establishments apply. ........The submission of Shri Dharmadhikari is that since motor transport undertaking also is a commercial establishment, the motor transport workers in such establishment are also not included and they would, therefore, be governed by the provisions of the State Act, under section 2(h)(ii). Such an interpretation, in my opinion, in effect, would exclude every motor transport worker, though falling precisely within the earlier part of the definition clause including drivers, conductors, cleaners, etc. and leave none to be governed by the provisions of this Act. The definition clause of section 2(h) would stand virtually effaced and the very object of the legislature would stand defeated. What the definition clause plainly means is that just as persons employed in any factory, if any run by the motor transport undertaking are left out as their welfare would be governed by the Factories Act, so also those employed in shops or commercial establishments, other than the motor transport undertaking (which expression is separately defined), are also left out to be governed by the provisions of any other law in force regulating their conditions of service." 14. It is, therefore, clear that this Court in Lalbhais case has held that the persons employed in shops and commercial establishments other than the motor transport undertaking, are to be governed by the provisions of the BSE Act. In other words, as far as the service conditions of the motor transport workers are concerned, they are to be governed by the MTW Act. The contention of the learned Advocate for the petitioners, however, is that the provisions of the MTW Act nowhere provides for termination of services of motor transport workmen and therefore the provisions governing similar situation in the BSE Act would apply. There has no answer to this argument by the respondents. However, it is also to be noted that though the service conditions of the motor transport workers are to be governed by the MTW Act, it is nobodys case that the provisions of the said Act are not applicable to them. There has no answer to this argument by the respondents. However, it is also to be noted that though the service conditions of the motor transport workers are to be governed by the MTW Act, it is nobodys case that the provisions of the said Act are not applicable to them. In fact the provisions of the said Act elaborately deal with the matters relating to termination of the services of the workmen, to which the said Act applies. It is also sought to be contended that there being no conflict between the provisions of the said Act and the BSE Act, the provisions of both the Acts would apply. In fact, the last contention clearly stands negatived by the decision of the learned Single Judge in Lalbhais case where it has been clearly observed that "A motor transport undertaking is required to be registered as such under section 3 of the Central Act. The employees of such an undertaking, who may be employed in a factory or in a shop or other commercial establishment, are not motor transport worker within the meaning of the definition given in section 2(h) of the Act, and they would continue to be governed by the provisions of the Factories Act or any other law in force regulating the conditions of service of persons employed in shops or commercial establishments.", thereby clearly holding that the provisions of the BSE Act are not applicable to the motor transport workers. The said position in law having been made clear after taking into consideration the various provisions of the relevant statutes, it is not necessary to discuss the said issue any further and therefore the contention of the petitioners that the provisions of the BSE Act would apply in such cases needs to be rejected. 15. It is not the contention of the petitioners that on account of continuous service being rendered for 180 days and thereafter the same having been terminated, any of the provisions of the said Act have been violated. Only contention which was raised was regarding violation of section 66 of the BSE Act and it has been held that the said provisions of law being not attracted in that regard, in the case in hand, the challenge on the said ground to the impugned order is also to be held to be devoid of substance. Only contention which was raised was regarding violation of section 66 of the BSE Act and it has been held that the said provisions of law being not attracted in that regard, in the case in hand, the challenge on the said ground to the impugned order is also to be held to be devoid of substance. The other decisions which are relied upon are absolutely of no relevancy to the matter in issue and therefore are not required to be considered in the matter. 16. As no other ground is disclosed for interference in the impugned award, the petitions fail and are dismissed. The rule issued in both the petitions is discharged with no order as to costs. Petition dismissed. -----