RAVI R. TRIPATHI, J. ( 1 ) THE matter is notified for confirmation of ad interim relief, granted on 19th December, 2003, which was ordered to continue on 2nd November, 2004, when `rule was issued in the matter and which is continued even thereafter. At the joint request of the learned Advocates for the parties, the matter is taken up for final disposal. ( 2 ) SHREE Arasuri Ambajimata Mandir Devsthan Trust is before this Court being aggrieved of Judgement and Award dated 28th July, 2003 passed by the learned Presiding Officer, Labour Court, Palanpur in Reference (LCA) No. 688 of 1990 (old), which was renumbered, being Reference (LCP) No. 176 of 1996 (new), whereby the learned Presiding Officer of the Labour Court is pleased to order reinstatement of the respondent-workman, without back-wages, on his original post - daily wager. The learned Presiding Officer is also pleased to order that the respondent-workman be issued `presence Card and `payment of Wages Card. The learned Presiding Officer is also pleased to order that in the event of preparation of the seniority list of the daily wagers, the earlier services of the respondent-workman be taken into consideration so as to see that no prejudice is caused to the respondent-workman. ( 3 ) MR. P. G. DESAI, learned Advocate appearing for the petitioner, invited the attention of the Court to the various relevant portions of the judgement and award. The learned Advocate invited the attention of the Court to the facts narrated in paragraph-2 that: the respondent-workman was working as a daily wager; that "he had worked from 1st April, 1980 to 15th January, 1981 and the wages payable for the same were paid to him"; that "from 16th January, 1981, he of his own had stopped coming to work and, therefore, the Reference be dismissed". The learned Advocate then invited the attention of the Court to the relevant portion of paragraph-3 of the judgement and award wherein the learned Judge of the Labour Court has recorded that,". . . . . . ONE Shri Anilkumar Nashabhai Solanki, witness of the petitioner-establishment, was examined at Exh. 27, he has stated that, work of renovation was going on and for that, some daily wagers were engaged. . . . . . ONE Shri Anilkumar Nashabhai Solanki, witness of the petitioner-establishment, was examined at Exh. 27, he has stated that, work of renovation was going on and for that, some daily wagers were engaged. Normally, daily wagers worked for 8 hours and they were paid for the same, presence of the workers was marked, but then, the said record is not available for the present; that on completion of the work, the daily wagers were terminated after the amount payable to them was paid; that for the work of renovation, tenders were invited and the party, whose tender was accepted, used to hire persons for getting the work done; that out of the persons - daily wagers, whose services were terminated, nobody was called for work. This witness was cross examined by a representative of the workman - Shri Devendrabhai Acharya. In the cross examination, this witness has admitted that at present, work of "nrutya Mandap" is going on. The workman was paid day to day, but the documents of the same are not with him; that he is not willing to employ `devidan (workman ). . . . . . . . . . . . . . "3. 1 in paragraph-4 of the judgement and award, the learned Judge has, after appreciating the case of both the sides, recorded that:". . . . . . The respondent-workman has stated in his statement of claim that for last four years, he was working as a `sculpture labourer and his services were terminated from January-1981 by an oral order. The respondent-workman, in his statement of claim, has not given the `exact date on which he entered into service, he has also not given the exact date on which his services were terminated, and has not mentioned the exact wages, which were paid to him. . . . . . . "3. 2 the learned Judge has recorded that the respondent-workman, in his deposition at Exh. 14, has stated that, `he was doing the stone polishing work for last three years and his services were terminated in January-1981. It is also recorded by the learned Judge that in the cross examination, the deponent has admitted that, `he was handicapped from childhood and he had 44% disability. 14, has stated that, `he was doing the stone polishing work for last three years and his services were terminated in January-1981. It is also recorded by the learned Judge that in the cross examination, the deponent has admitted that, `he was handicapped from childhood and he had 44% disability. The deponent has not stated anything in his deposition as to what type of workman he was, what wages he was getting and what other monetary benefits were paid to him. 3. 3 the learned Judge has recorded a `categorical finding that the respondent-workman has not produced any documentary evidence in support of his case to show that he had worked for 240 days every year. 3. 4 the learned Judge, by appreciating the case of the petitioner-Establishment, has recorded that, `the petitioner-Establishment has admitted that the concerned workman was working as a `sculpture labourerin the temple; that the workman was paid for the days he worked. The witness, examined on behalf of the petitioner-Establishment, has stated that the respondent-workman was engaged for the `renovation work of the temple; that presence of the workman was marked, but, the petitioner-Establishment has not produced any documentary evidence about the presence or the payment. The learned judge has also recorded a finding that the petitioner-Establishment has admitted in its reply that the respondent-workman was working as a daily wager labourer, for the work of renovation, but then, the Establishment has not produced any evidence showing the period for which he worked with the Establishment or as to when he was engaged and when he was terminated. 3. 5 on appreciation of the rival contentions of both the sides, the learned Judge has come to the conclusion that the petitioner-Establishment has not given any notice to the respondent-workman at the time of termination and has not paid any notice pay; that any departmental inquiry was also not held against the respondent-workman; that the petitioner-Establishment was not having any complaint against the respondent-workman; that it is established that the respondent-workman was working as a daily wager in the petitioner-Establishment and that there is no reason for not believing this fact and hence, it is a fit case to order reinstatement. ( 4 ) MR. ( 4 ) MR. DESAI, learned Advocate appearing for the petitioner, relied upon a decision of the Honourable Apex Court in the matter of Range Forest Officer vs. S. T. Hadimani, reported in (2002) 3 S. C. C. 25, wherein the Honourable Apex Court has held that:"in our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. "the Apex Court was pleased to observe that,". . . . . . It was the case of the claimant that he 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. On this ground alone, the award is liable to be set aside. . . . . . . "4. 1 mr. Desai also relied upon yet another decision of the Honourable the Apex Court in the matter of Rajasthan State Ganganagar Mills Limited vs. State of Rajasthan and Anr. , reported at (2004) 8 S. C. C. 161, wherein the aforesaid decision was referred to and relied upon. Paragraph-6 of the said judgement is relevant for the purpose, which reads as under:"it was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer vs. S. T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. . . . . . . " (emphasis supplied) 4. 2 mr. Desai next invited the attention of this Court to another decision of the Honourable the Apex Court in the matter of Municipal Corporation, Faridabad vs. Siri Niwas, reported at (2004) 8 S. C. C. 195, wherein also, the Honourable the Apex Court, in paragraphs 13, 14 and 15, has observed as under:"13. THE provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by an employer for effecting a valid retrenchment: (i) one months notice in writing indicating the reasons for retrenchment or wages in lieu thereof; (ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months. 14. FOR the said purpose it is necessary to notice the definition of "continuous service" as contained in Section 25-B of the Act. 14. FOR the said purpose it is necessary to notice the definition of "continuous service" as contained in Section 25-B of the Act. In terms of sub-section (2) of Section 25-B if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17-5-1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5-8-1994 to 16-5-1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25-B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. It is improbable that a person working in a local authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not even examine any other witness in support of his case. 15. A court of law even in a case where provisions of the Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken in to consideration is the background of facts involved in the lis. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken in to consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent. " ( 5 ) MR. DHAVAL M. Barot, learned Advocate appearing for the respondent, submitted that this petition is filed under Article-227 of the Constitution of India. The learned Judge, after recording a finding that "the respondent-workman was working as a daily wager", has awarded reinstatement as a daily wager, that too, without back-wages, therefore, the judgement and award does not warrant any interference at the hands of this Court. He further submitted that the learned Judge has also recorded a finding that `the petitioner-Establishment did not give any notice nor pay any notice pay to the respondent-workman at the time of terminating his services; that `no departmental inquiry was held against the respondent-workman as there was no complaint against the respondent-workman and hence, termination of the services of the respondent-workman was unjust and arbitrary. The learned Advocate submitted that the learned Judge has rightly granted reinstatement as a daily wager without any back-wages with a direction to the petitioner to issue `presence Card as well as the `payment of Wages Card and to take into consideration the earlier services of the respondent-workman at the time of preparing the seniority list of the daily wagers. ( 6 ) CONSIDERING the rival contentions of both the learned Advocates and taking into consideration the law laid down by the Honourable the Apex Court, it is clear that the learned Judge has erred in passing the award of reinstatement because the learned Judge has recorded a finding to the effect that the respondent-workman has not established his working for 240 days. The learned Judge has recorded that the petitioner did not give any notice, or notice pay, it did not hold any departmental inquiry before terminating the services of the workman, that it did not have any complaint against him, but then, these questions are to arise at a subsequent stage. The first and the foremost requirement is to establish the working of 240 days in a year. The workman having failed to discharge the burden cast on him, the subsequent question did not arise and hence, the judgement and award of the learned Judge cannot be allowed to stand. The submissions of Mr. Barot do not find favour. The same cannot be accepted. The learned Judge has not drawn any adverse inference against the petitioner and has recorded two contradictory findings, which cannot be allowed to stand. ( 7 ) IN view of the foregoing discussion, the judgement and award under challenge is quashed and set aside and the petition is allowed. Rule is made absolute. No order as to costs. .