JUDGMENT Hon’ble Shishir Kumar, J. —This writ petition has been filed by the petitioners against a common award of respondent No. 1 dated 15.5.2002 published on 13.1.2003 in Adjudication Case No. 13/98 to 39/98. The petitioners who were workmen were employed by respondent No. 2 which is an industry under the U.P. Industrial Disputes Act. Each of the petitioners had continuously worked for 7-8 years with respondent No. 2. Their services were illegally terminated by respondent No. 2 on different dates as given in the award of the Labour Court. All the workmen raised industrial dispute and the same was referred under Section 4-K of the Industrial Disputes Act to the Labour Court. The Labour Court consolidated all the cases and one set of evidence was led by the parties in leading case i.e. Adjudication Case No. 13 of 1998. 2. There is no dispute between the workmen and the employer that workmen worked for 7-8 years under respondent No. 2. The only dispute is that while workmen alleged to have worked continuously more than 240 days in a year, the employer alleged that workmen did not work for more than 240 days. In the counter affidavit the respondents have alleged that employers were willing and ready to employ the workmen, if the workmen approaches the employers. The Labour Court vide its award dated 3.2.2003 (Annexure-28 to the writ petition) dismissed the claim of the petitioners. Hence, the present writ petition is being filed. 3. Sri Shyam Narain, learned Advocate appearing for the petitioners submits that there is a specific and direct evidence of the petitioners alleging that they had worked for 240 days continuously. This evidence is supported by the pleadings of petitioner No. 1 in his written statement before the Labour Court. From the evidence on record, as examined and discussed by the Labour Court it appears that Labour Court has been misled by the documentary evidence of the employer which related only to the period of one year before the date of termination of services of the petitioners-workmen. The Labour Court also appears to have relied upon a judgment of the Apex Court reported in 1981 (2) ALJ 70, Mohan Lal v. Bharat Electronic Limited. The Labour Court also appears to have relied upon a judgment of the Apex Court reported in 1981 (2) ALJ 70, Mohan Lal v. Bharat Electronic Limited. The said judgment which arose under the Industrial Disputes Act (Central) has been distinguished by the Apex Court in U.P. Drugs Pharmaceuticals v. Ramanuj Yadav, and has held that if a workman has worked continuously for more than 240 days in any year, he is entitled for protection under Section 6-N of the U.P. Industrial Disputes Act. The Labour Court has not recorded any finding for any other year during total 7-8 years of services of the petitioners if the petitioners had worked for more than 240 days in a year continuously. Since the factum of employment of the petitioners is admitted by respondent No. 2 and respondent No. 2 has led evidence including documentary evidence, it was for respondent No. 2 to have filed documentary evidence before the Labour Court and a finding to that effect should have been recorded that petitioners-workmen have not worked for more than 240 days in a year during their service for last 7-8 years. It has specifically been stated by respondent No. 2 that their services were never terminated. The continuous working of the petitioners shows and proves that the nature of duties performed by the petitioners were continuous and permanent in nature and respondent No. 2 has deliberately been exploiting them of their rights of a permanent workman in violation of Clause 10 of 5th Schedule to the Industrial Disputes Act. The respondents have employed various persons after the impugned award and during pendency of the writ petition, it is in clear violation of Section 6-P and 6-Q of the Industrial Disputes Act. When the petitioners came to know regarding the aforesaid act of the respondents, an amendment application has been filed bringing the said fact and the said application has been allowed. 4. Respondent No. 2 has throughout been alleging that services of the petitioners have never been terminated and they can be re-employed as and when they approach the employer. The petitioners-workmen have been claiming their employment/reinstatement under respondent No. 2 by raising their disputes before the Labour Court and by filing the present writ petition. 4. Respondent No. 2 has throughout been alleging that services of the petitioners have never been terminated and they can be re-employed as and when they approach the employer. The petitioners-workmen have been claiming their employment/reinstatement under respondent No. 2 by raising their disputes before the Labour Court and by filing the present writ petition. But in spite of the aforesaid fact, the petitioners have not been reinstated and new workmen in place of the petitioners to perform the same duties as performed by the petitioners earlier, have been appointed. In view of the aforesaid fact, learned Counsel for the petitioners submits that the impugned award passed by the Labour Court may be quashed and appropriate directions be issued to respondent No. 2 to employ the petitioners. 5. Reliance has been placed upon a judgment of the Apex Court reported in AIR 1996 SC 2526 , Central Bank of India v. S. Satyam and others, and 1999 (81) FLR 746, Samista Dubey v. City Board. 6. Taking support of the aforesaid judgments the learned Counsel for the petitioners submit that as it has been proved that the principle of ‘first come last go’ in Section 6-P could be deviated from by an employer because the section uses the word ‘ordinarily, the burden will be upon the employer to justify the deviation. As from the record it was fully proved that the petitioners have completed 240 days in one calendar year, therefore, they were entitled to be reinstated. 7. On the other hand, learned Counsel for the respondent No. 2 Sri V.R. Agarwal, Senior Advocate, submitted that award passed by the Labour Court is based on finding of fact on the basis of material on record. The petitioners-workmen have not adduced any evidence except their self serving statement. The Labour Court has given a finding of fact that none of the concerned workmen has completed continuous service of one year and that all the concerned workmen were daily rated casual workers engaged as and when required for short spells. Further the Counsel for the respondents has brought to the notice the statements given before the Labour Court to show that no workman in his statement has stated that he has worked continuously for 240 days in one calendar year. The requirement in law is to plead that a workman has completed 240 days in one calendar year. Further the Counsel for the respondents has brought to the notice the statements given before the Labour Court to show that no workman in his statement has stated that he has worked continuously for 240 days in one calendar year. The requirement in law is to plead that a workman has completed 240 days in one calendar year. Secondly, he has to plead that he was in employment of respondent No. 2 for 12 calendar months. From the perusal of Section 2-G of the Act which defines regarding continuous service, it mentions that “ before a workman is considered to have completed one year of continuous service, it must be shown first that he was employed for a period not less than 12 months and next during those current months he has worked for not less than 240 days.” 8. It has further been submitted that from the combined reading of Sections 6-N and 2 (g) gives out that before a workman can be considered who have completed one year of continuous service, it must be shown first that he was employed for a period not less than 12 months and next that during these current months he has actually worked for not less than 240 days. Further it has been submitted by the learned Counsel for the respondents that from the perusal of the award it is clear that no workman has mentioned in his application that what is the date not permitting him to work. The petitioners have also not been able to prove that the nature of work in which they were working was of permanent nature. A finding of fact has also been recorded that no workman was able to prove on the basis of record that he has completed 240 days in one calendar year. 9. Learned Counsel for the respondents has also stated that from the perusal of the award passed by the Labour Court it is also clear that petitioners-workmen have not filed any document in support of their contentions except oral evidence. Further a finding has been recorded that petitioners-workmen themselves in person have not appeared before Labour Court. 10. Reliance has been placed upon a judgment of the Apex Court reported in 2006 (3) LLJ 755 , Krishna Bhagya Jala Nigam Ltd. v. Mohammad Rafi. Para 6 is being reproduced below : “6. In Yellatti R.M. v. Asst. Further a finding has been recorded that petitioners-workmen themselves in person have not appeared before Labour Court. 10. Reliance has been placed upon a judgment of the Apex Court reported in 2006 (3) LLJ 755 , Krishna Bhagya Jala Nigam Ltd. v. Mohammad Rafi. Para 6 is being reproduced below : “6. In Yellatti R.M. v. Asst. Executive Engineer, 2006-I-LLJ-442 (SC), the decisions referred to above were noted and it was held as follows at pp. 448 & 449 : “17. Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lays down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case.” 11. Lastly, the above judgments lays down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon facts of each case.” 11. Further reliance has been placed upon the judgment reported in 2004 (100) FLR 455, Lochan Prasad v. Executive Engineer, P.W.D., Nirman Khand, Bareilly and another, and Paragraphs 7 and 8 have been referred to which are quoted below : “7. In so far as the contention of the petitioner that he was a daily wager and not a workman under Section 2(s) of the Industrial Disputes Act, 1947, the Labour Court has given a finding of fact based on the evidence of the workman that the workman had not been given any appointment letter and was engaged at the site of exigency of work as daily wager. The appointments in the department are regulated by rules. Neither any averments nor any material had been brought on record by the petitioner that he was appointed against a post in accordance with rules. On the contrary it is evident from the pleadings of the workman that he was engaged on daily wages on day-to-day basis. He was a temporary employee and his disengagement from service cannot be construed as retrenchment as defined in Section 2(s) of the U.P. Industrial Disputes Act, 1947 as per law laid down by the Apex Court in Himanshu Kumar Vidyarthi and others v. State of Bihar. 2(s) “Retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include— (i) Voluntary retirement of the workman, or (ii) Retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf.” 8. The workman had himself stopped coming to work and there was no act of “termination by the employer” of the services of the workman, the key to phrase to bring the termination for any reason whatsoever within the ambit of the word “Retrenchment” as defined in the Act is that there has to be an act of the employer in termination of the services of the workman. The termination brought about by the workman himself like abandonment, refusal to work etc. would not fall within the ambit of the definition of “retrenchment”. Applying the keywords it is evident that in the instant case the workman was not of a daily wager also does not fall within the ambit of retrenchment even though such daily wager may have worked for 240 days in a year. I am strengthened in my view by the judgment of Apex Court in Himanshu Kumar Vidyarthi and others v. State of Bihar and others (supra) in which it has been held that : “Every department of the Government cannot be treated to be industry. When the appointments are regulating by the statutory rules, the concept of industry to that extent stands excluded. The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily-wages. Their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment, therefore, cannot be stretched to such an extent as to cover these employees. Since the petitioners are only daily wage employees and have no right to the posts, their disengagement is not arbitrary.” 12. Further reliance has been placed upon the judgment reported in 1995 (70) FLR 14 (All HC) Allahabad High Court, Baij Nath Bhattacharya v. Labour Court, Allahabad and another, and Paragraphs 3 and 8 have been referred to which are reproduced below : “3. A combined reading of these two aforesaid sections gives out that before a workman can be considered to have completed one year of continuous service it must be shown first that he was employed for a period of not less than 12 months and next that during these calendar months he had actually worked for not less than 240 days. 8. Before a workman can be considered to have completed one year of continuous service in an Industry it must be established as a fact that he was employed for a period not less than 12 calendar months and next that during those 12 calendar months had actually worked for not less than 240 days. In the present case as per his own case the petitioner has not at all been employed for a period of 12 months. In the present case as per his own case the petitioner has not at all been employed for a period of 12 months. In view of this factual position in the present case it becomes unnecessary to examine whether the actual days of work of the petitioner numbered 240 days or more. For, in any case, the requirement of Section 2(g) and Section 6-B of the State Act would not be satisfied by mere fact of the number of working days of petitioner being not less than 240 days. The award of the respondent No. 1 does not call for any interference of the Court. In the result, this writ petition fails and the same is dismissed. The parties are left to bear their own costs of this petition.” 13. Further reliance has been placed upon a judgment of this Court reported in 2008 LLR 287, U.P. Power Corporation Ltd. v. Presiding Officer, Labour Court and reliance has been placed upon para 20 of the said judgment. The same is being reproduced below : “20. Thus in the light of the observation made in the judgment aforesaid that in the particular case, the workmen failed to establish burden of proof that they had worked for more than 240 days and therefore they are not entitled to get the benefit of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947.” 14. I have heard learned Counsel for the petitioners and learned Counsel for the respondents. 15. From the record it is clear that various persons were engaged in respondents’ organisation, they have not adduced any evidence or filed any document before the Labour Court. From the perusal of the objections filed before the Labour Court, it clearly appears that respondents have taken an objection that these workmen were engaged as casual labourers as and when required for short duration on daily wage basis. In objection it has also been stated that the last engagement of the workmen was 14.2.1994. Thereafter workmen themselves have never inquired about the availability of the work with the employer and they have never approached the employer or made any demand for the work before raising the industrial disputes. Their services were never terminated by the employer. In objection it has also been stated that the last engagement of the workmen was 14.2.1994. Thereafter workmen themselves have never inquired about the availability of the work with the employer and they have never approached the employer or made any demand for the work before raising the industrial disputes. Their services were never terminated by the employer. From the perusal of the statements given by the petitioners it is clear that they have not disclosed the date of termination, if any, only they have said that after 15.2.1994, they have not been permitted to work. There is an averment to this effect that they have worked for 240 days continuously. In one of the statements one of the workman has said that he has received an appointment letter but he has not filed it before the Court. Further a statement has been made that relating to his service he has not submitted any document before the Tribunal. The relevant part of the statement of one of the witnesses namely Brij Kishore Chaubey, is being quoted below : “MAIN DAINIK BHOGI KARMCHARI THA. MERI BHARTI G.E.C. ME 1.1.85 KO HUl THI TAB SE AGATAR 14.2.94 TAK KAM KIYA HAI MUJHE NIYUKTI PATRA MILA THA. MAIE DAKHIL NAHl KIYA HAI NAUKARI SE SAMBANDHIT MAINE KOI KAGAJ DAKHIL NAHl KIYA. 1993 ME KITNE DIN KA VETAN MILA YAAD NAHl HAI KISI MAH KA YAAD NAHl HAI MAIN NAHl KAH SAKTA KI 12-75 DIN KAM FARVARI 1994 ME KAM KIYA. SAHI YAH HAI KI MAINE LAGATAR KAM KIYA. KISI MAH KA AB YAAD NAHl HAI MAIN LIKHANA PADHANA JANATA HOON. TANKHWAH LEKAR MAIN DASKHAT KARTA THA. IDENTITY CARD MUJHE DIYA JATA THA. DAKHIL NAHl HAI IDENTITY CARD ME KAM KARNE KA PERIAD NAHl LIKHA RAHATA HAI MAIN PEMENT SHEET PAR TANKHWAH LET A THA. YEH NAHl DEKHA KI USME KAM KARNE KE DIN LIKHE RAHTE THE. MAINE KAM BAND NAHl KIYA BAL KISEVAYOJAK NE NIKALA THA. NIKALE JANE KA PATRA DIYA THA JO SRI........KA HAIYEH ADALAT KI FILE PAR NAHl HAI. YEH GALAT HAI KI NIKALA NAHl GAYA. YEH BHI GALAT HAI KI SWAYAM KAM PAR JANA BAND KAR DIYA.” 16. In such circumstances the Labour Court has recorded a finding that they were daily wage employees and on the basis of relevant record submitted by the respondents it is proved that as and when work was needed, they were being engaged. YEH BHI GALAT HAI KI SWAYAM KAM PAR JANA BAND KAR DIYA.” 16. In such circumstances the Labour Court has recorded a finding that they were daily wage employees and on the basis of relevant record submitted by the respondents it is proved that as and when work was needed, they were being engaged. A finding of fact has also been recorded that they were not able to prove that they have completed 240 days in one calendar year and no document to that effect has been submitted. In such a situation, the Labour Court has no option except to dismiss the claim of the petitioners-workmen. A finding to this effect has also been recorded that the petitioners have failed to prove that the work for which they were engaged, was permanent in nature. 17. The Apex Court has also held in various cases that Labour Court being last Court of fact, if the finding of fact has been recorded on the basis of relevant appreciation of the evidence, then the High Court while exercising the jurisdiction under Article 226 of the Constitution of India should not interfere. In 2005 SCC (L & S) 327, Management of Maduratakam Corporation Sugar Mills Ltd. v. S. Vishwanathan, the Apex Court has held that a finding recorded by the Labour Court being the last Court of fact, scope of interference by the High Court while exercising the jurisdiction under Article 226 of the Constitution of India is very limited. In 2005 SCC (L & S) 484, Karnataka State Road Transport Corporation v. S.G. Katturappa, the same view has been taken. In JT 2005 (9) SC 163, Sudernagar District Panchayat v. Jetha Bhai, the Apex Court has held that retrenchment/termination of daily wager claiming that he has worked for 240 days in a year. Apex Court held that burden is on the workman to prove that he has worked 240 days in one calendar year. 18. In view of the aforesaid fact, I am of opinion that there is no illegality in the award given by the Labour Court. The finding is based on evidence and Labour Court has rightly held that the petitioners are not able to prove their case. 19. In the result, the writ petition is devoid of merits and is hereby dismissed. 20. No order is passed as to costs. ————