Judgment : Common Order: 1. These writ petitions are directed against the award of the Labour Court in I.D.Nos.90 of 2001 to 95/2001, whereby the Labour Court declared the termination of the respective petitioners as unfair and directed their reinstatement in service with full back wages and other consequential benefits. Factual matrix :- W.P.No.23160/2004 (I.D.No.91/2001):- 2. The workman, petitioner in I.D.No.91/2001, claims to have worked in the Tamil Nadu State Transport Corporation from 22.09.1997 to 21.09.1998 as conductor originally and later as Time Keeper at their Tindivanam Depot. During such service, he had worked for 720 days and more particularly from 22.09.1997 to 21.09.1998. Subsequent to the rejection of the representation submitted by the workman for regularization, he was orally terminated and the said termination was challenged before this court and while dismissing the writ petition, this court granted liberty to the workman to approach the Labour Court for appropriate reliefs. Accordingly, the matter was referred to the Labour Court for adjudication. W.P.No.23161/2004 (I.D.NO.90/2001) :- 3. According to the second respondent workman, he was recruited through employment exchange for the post of Conductor in Tamil Nadu State Transport Corporation and he was in service since 03.05.1997. Originally, the petitioner was working at Villupuram as Conductor and he served there for more than 240 days per year. Later, he was transferred as Time Keeper in the Tindivanam Depot of the Corporation and during such service, he made an application on 21.07.2000 with a prayer to declare him as a permanent employee of the Corporation. The said prayer was not considered by the Corporation which resulted in filing a writ petition in W.P.No.15957/2000 and the High Court as per order dated 20.09.2000 directed the Management to consider the request of the petitioner and to pass orders thereon. On the basis of the said order, the management considered the case of the workman and as per their communication dated 212. 2000, rejected the claim for regularization and he was orally terminated. Even though the termination was challenged by the petitioner by filing writ petition, the same was rejected by this court granting liberty to the workman to seek relief through Labour Court. Subsequently, there was an unsuccessful conciliation. After submission of the failure report, the matter was referred to the Labour Court. Even though the termination was challenged by the petitioner by filing writ petition, the same was rejected by this court granting liberty to the workman to seek relief through Labour Court. Subsequently, there was an unsuccessful conciliation. After submission of the failure report, the matter was referred to the Labour Court. According to the workman, he had put in 720 days in a period of three years from 03.05.1997 to 02.05.1998 in the Corporation and as such, his termination was unjust and illegal and was made in violation of Sec.25(f) of the I.D. Act. W.P.No.23162/2004 (I.D.No.93/2001) :- 4. The workman in I.D.No.93/2001 was alleged to be in the service of the Corporation from 22.09.1997 to 21.09.1998 and he was selected in the personal interview conducted by the officials of the Corporation. The workman had a continuous service of 720 days during the period of three years. He was orally terminated consequent to the rejection of his claim for regularization and ultimately, he was permitted by this court as per order dated 212. 1990, to move the Labour Court. W.P.No.23163/2004 (I.D.No.92/2001) :- .5. The workman in I.D.No.92/2001, is stated to have been in the service of the Corporation from 22.09.1997 to 21.09.1998 and as such, he was in service for a total period of 720 days in three years. His entry to the service was also through Employment Exchange after interview. Since he had completed more than 240 days in a year, he made a request to the Corporation to regularize his service and on rejection of the said request, he was orally terminated, which made the workman to file a writ petition before this court. While dismissing the writ petition, liberty was granted to challenge the termination before the Labour Court and accordingly, the matter was referred to the Labour Court for adjudication. .W.P.No.23164/2004 (I.D.No.95/2001) :- .6. The workman in I.D.No.95/2001 also claims to have been appointed in the interview conducted by the respondent on the basis of the list forwarded by the local employment exchange. The workman was in the service of the Corporation from 210. 1997 to 21.07.1998, originally as conductor and later as Time Keeper in the Tindivanam Depot. .W.P.No.23164/2004 (I.D.No.95/2001) :- .6. The workman in I.D.No.95/2001 also claims to have been appointed in the interview conducted by the respondent on the basis of the list forwarded by the local employment exchange. The workman was in the service of the Corporation from 210. 1997 to 21.07.1998, originally as conductor and later as Time Keeper in the Tindivanam Depot. In view of his continuous service for more than 240 days in a year and his total service of more than 740 days during the period of three years, he made a request to regularize his service but however, the same was rejected by the Corporation, which ultimately, led to the reference to the Labour Court. .W.P.No.23165/2004 (I.D.No.94/2001): 7. The Workman is stated to have been in the service of the Corporation from 22.08.1998 to 21.07.2000, having been appointed by the Corporation. He was in the service of the Corporation originally as a conductor and later, he was transferred to Tindivanam as Time Keeper. His attempt to get himself regularized in the service of the Corporation failed on account of the rejection of his request by the Corporation and the same culminated in raising dispute before the Labour Court for adjudication. Defence :- 8. In the counter filed by the Tamil Nadu State Transport Corporation before the Labour Court, Cuddalore in all the proceedings, it was their case that the Corporation called for list of candidates from the District Employment Exchange to fill up the post of conductor. As per the Service Rules, the Conductor must have 160 c.m. of height. The appointing authority was the General Manager of the Corporation. The candidates sponsored by the employment exchange were called for a personal interview and all these petitioners participated in the said interview and it was found that none of the petitioners were qualified, as they were not having the prescribed height for the post of conductor. Accordingly, the petitioners were not selected. The Corporation also denied the contention of the respective petitioners that they were in the rolls of the Corporation for the period they claimed to have worked in the Corporation. In short, the Corporation contended that the workmen were not in the service of the Corporation so as to enable them to obtain the relief claimed by them. 9. The Corporation also denied the contention of the respective petitioners that they were in the rolls of the Corporation for the period they claimed to have worked in the Corporation. In short, the Corporation contended that the workmen were not in the service of the Corporation so as to enable them to obtain the relief claimed by them. 9. Since basic facts in all the writ petitions are one and the same, the learned counsel for the petitioner as well as respondent made their submission by highlighting the facts in W.P.No.23161/2004. Therefore, the factual matrix would be noticed from the facts in I.D.No.90/2001, filed by D.Sachithanandam, the second respondent in W.P.No.23161/ 2004. The petitioners in the Industrial Dispute is referred to as "workmen" and the Tamil Nadu State Transport Corporation, petitioner in the Writ Petition as "the Corporation". Lead Case:- W.P.No.23161/2004 (I.D.No.90/2001):- 10. The contention of the workman in I.D.No.90/2001 was to the effect that he was selected in the personal interview held on 03.05.1997 for appointment to the post of conductor and his last drawn pay was Rs.4,000/-. According to him, he was sponsored by the employment exchange as per the request given by the Corporation. 11. According to the workman, the practice prevailing in the Corporation was to appoint conductor and other staff on daily wages initially and make them permanent subsequently on completion of 240 working days of service in a given year. The workman concerned was stated to be in service from 03.05.1997 to 21.07.2000 and as such, he was in the service of the Corporation for more than 240 days. However, he was not paid the basic pay, dearness allowance and other allowances. Originally, the workman was working as conductor attached to Panruti Branch of the Corporation and subsequently on 110. 1999, he was transferred to Tindivanam Depot of the Corporation as Time Keeper. While so, he gave a letter to the respondent on 21.07.2000 with a request to declare him as a permanent employee, but, however, the same was not considered by the Corporation which resulted in filing a writ petition before this Court and while disposing of the said writ petition, this Court as per letter dated 20.09.2000 in W.P.No.15957/2000, directed the Corporation to consider and pass orders in the representation submitted by the petitioner. 12. 12. In obedience to the said direction, the matter was considered by the Corporation and ultimately, as per proceedings dated 212. 2000, the claim of the petitioner for regularization was rejected on the ground that the petitioner lacks basic qualification of 160 cms of height, prescribed for appointment to the post of conductor. Immediately, the petitioner filed a writ petition in W.P.No.3174/2001 and this Court as per order dated 212. 2000, dismissed the Writ Petition granting liberty to approach the Labour Court for appropriate relief. 13. The workman further contended that he was terminated on account of his claim for regularization and the said termination was per-se illegal besides made in violation of the provisions of Section 25(f) of the Industrial Disputes Act. Since the conciliation ended in failure, the matter was referred to the Labour Court for adjudication. 14. The contention regarding appointment of the workmen as Conductor in the Corporation as well as his claim of continuous service for more than 240 days in a given year as well as the total completion of 720 days during the period of three years were denied by the Corporation in the counter filed by them. 15. The workman was examined as a witness and in his evidence, he had deposed that from 03.05.1997, he was working in Panruti Branch and continued there till 10. 1999. Subsequently, he was transferred to Tindivanam Depot as Time Keeper and he was functioning there from 110. 1997. While so, he gave an application to the Corporation for regularization on 21.07.2000 and on the same day, he was terminated orally. In the Chief examination, he also deposed that though he was appointed on daily wages, his salary was collected on monthly basis and such salary was paid by Branch Manager of Tindivanam Depot. 16. The workman also exhibited 585 receipts as per Ex.W-1 series to prove his continuous service during three years period and the same was marked with protest. Office copy of the letter sent to the workman on 02.02.1998, was marked as Ex.W-2. Similarly, Ex.W-3 and W-4, office copies of the letter sent to the workman by management on 02.03.1998 and 011. 1998 were also marked. Ex.W-5 is the deficiency report, given by the Checking Inspector on 012. 1998 during the period of his functioning as Conductor. 17. Office copy of the letter sent to the workman on 02.02.1998, was marked as Ex.W-2. Similarly, Ex.W-3 and W-4, office copies of the letter sent to the workman by management on 02.03.1998 and 011. 1998 were also marked. Ex.W-5 is the deficiency report, given by the Checking Inspector on 012. 1998 during the period of his functioning as Conductor. 17. The petitioner was cross examined by the Management and during the cross-examination, the workman has admitted that written order was issued by the Corporation to him appointing him to the post of Conductor. However, such appointment order has not been produced before the court. 18. It was also elicited during cross examination that the personal interview was held on 21.09.1996 and in the said interview, the workman participated and he was told that he should be 160 cms of height and ultimately, he was issued with an appointment order by the General Manager. Subsequently, the matter was clarified by the workman by deposing that the appointment order was sent to him through telegram. However, the said telegram was also not exhibited as a document in support of his claim. As per his evidence, no written order of termination was issued to him. 19. Officer of the corporation was examined as M.W.1 and Exs.M-1 to M-4 were marked on their side. 20. The Labour Court framed the following issues for consideration :- Findings of the Labour Court :- "1.Whether the non-employment of the petitioner is justified ? 2.Whether the petitioner is entitled to secure the reinstatement in service with back wages and other benefits ?" 21. The Labour Court found that the workman was in the service of the corporation for more than 240 days in a year and the same was evident from the collection sheets produced by the workman and marked as Ex.W-1 series. The Labour Court on the basis of the Interview Card marked as Ex.M-2 concluded that the workman appeared for the interview for the post of conductor and the contrary case pleaded by the corporation to the effect that, as the workman was not having the prescribed height of 160 cms, his case was rejected, was not supported by any evidence. 22. 22. According to the Labour Court, the 318 receipts marked for the year 1997 and 318 receipts marked for the year 1998 and 129 receipts for the year 1999 were ample proof of the employment of the workman in the corporation for more than 240 days per year. The documents produced on the side of the Management in Ex.M.1 and M.2 to prove that though the workman attended the interview he was not selected was not believed by the Labour Court on account of the voluminous documents produced by the workmen. The Labour Court also appears to have drawn adverse inference against the Corporation for their non production of the documents sought to be produced by filing an interlocutory application by the workman. Ultimately, the Labour Court concluded that from the documents exhibited on the side of the workman, it was crystal clear that the workman was in service for more than 240 days in a year and in the absence of non-availability of proof of documents to the effect that he was issued with an order of termination, the act of termination was declared as illegal and against the provisions of Sec.25(f) of the Industrial Disputes Act, 1947 and answered the first issue in favour of the workman. .23. With respect to the second issue regarding reinstatement with back wages, the Labour Court opined that the oral termination of the workman was bad and as such, he was entitled for reinstatement in service with back wages and other attendant benefits. .Similar reliefs were given in other cases also. .24. Aggrieved by the award of the Labour Court, the management of the Tamil Nadu Transport Corporation have preferred the above writ petitions challenging the respective awards. .Submissions of the Corporation :- 25. Thiru. T. Chandrasekaran, learned Standing Counsel appearing on behalf of the petitioner Corporation contended that there was no basis for arriving at the conclusion about the initial entry of the workman into the service of the corporation as well as the factum of their service for more than 240 days per year. According to the learned counsel, the receipts produced by the workmen cannot be taken as proof, evidencing the service of the workman in the petitioner Corporation. According to the learned counsel, the receipts produced by the workmen cannot be taken as proof, evidencing the service of the workman in the petitioner Corporation. According to the learned counsel, an employee engaged on daily wages used to be placed in various sectors and for different schedule, and as such, there would be multiple receipts in a given day and therefore, the number of receipts cannot be taken as the criteria to discharge the burden that the workman was in continuous service for more than 240 days in a year. .26. The learned counsel by placing reliance on the Service Regulations as well as Office Memorandum, incorporating the scheme of management of the corporation, submitted that the appointing authority in the case of conductor is none other than the General manager and as such, Branch manager was not empowered to make such appointments. The learned counsel also relied on the condition of eligibility in the service regulations with respect to conductors, wherein there is a clear stipulation that the height of the candidate should not be less than 160 cms. The learned Standing Counsel further contended that the workmen were not entitled to be regularized and the award of the Labour Court ordering reinstatement as well as payment of back wages is liable to be interfered with as the very award is against law. .Submissions of the workmen :- .27. Thiru N.G.R.Prasad, learned senior counsel appearing for the second respondent/workmen contended that the receipts produced by the workmen in Exs.W-1 to W-5 series clearly shows that the workmen were in the service for more than 240 days in a year and in the face of such overwhelming evidence supporting the case of the workmen, the Tribunal was justified in granting the relief of reinstatement with back wages. According to the learned counsel, in spite of direction given by the Labour Court to produce the documents summoned by the workmen, no attempt was made by the Corporation to produce the documents. It was further contended that the workmen had discharged the initial burden of proving that they were in continuous service for more than 240 days in a given year and when they have discharged the said burden, the burden shifts on the management to prove that it was not correct and that there was no such continuous service. It was further contended that the workmen had discharged the initial burden of proving that they were in continuous service for more than 240 days in a given year and when they have discharged the said burden, the burden shifts on the management to prove that it was not correct and that there was no such continuous service. According to the learned counsel, the management should have produced the Attendance Register, Wages Register and other Registers maintained as mandated by various Labour Legislations to prove that the name of the individual workmen were not found place in the records and in the absence of such records, the Labour Court was perfectly justified in drawing adverse inference against the management. In such circumstances, the learned counsel prayed for confirming the award of the Labour Court. 28. The learned counsel for the Corporation relied on the following Judgments in support of his contention. 1991 (1) SCC 691 ; 1994 (11) LLJ 620; 2004(8) SCC 262 2004(I) LLJ 178; 2004(III) LLJ 780 ; 2005 (I) LLJ 12 2004(I) LLJ 592; 2005(III) LLJ 632; 2005 (II) LLJ 1124 2006(I) LLJ 268; 2006(I) LLJ 721; 2006 (II) LLJ 418; 2006(II) LLJ 722 ; 2006(II) LLJ 1113;2005 (I) LLJ 262; 2007(I)LLJ 580; 2007(I) LLJ 593 ; 2007(I) LLJ 789 ; 2007(I) LLJ 1042 ; 2007(II) LLJ 128 ; 2007(II) LLJ 832 ; 2008(2) LLN 20;2008(2) LLN 26; 2008 AIR SCW 3274; and Judgment of Madras High Court in W.A.No.1107/2003 dated 19.09.2006. 29.The learned Senior counsel for the workmen in support of his contention with respect to violation of Sec.25F as well as adverse inference drawn against the Management by the Labour Court relied on the following decisions :- AIR 1986 SC 132 ; 1996(2) LLJ 22 ; 2001 (1) LLJ 1516 ; 2005 (12) SCC 181; 2005 (3) SCC 193 ; 2006(1) SCC 106 ; and 2008 (13) Scale 292 30. The decisions relied on by the learned counsel for the petitioner are all with respect to regularization. In those decisions, the Supreme Court as well as this court held that a temporary Government Servant has no right to hold the post and his service is liable to be terminated by giving one month’s notice without any reason. The decisions relied on by the learned counsel for the petitioner are all with respect to regularization. In those decisions, the Supreme Court as well as this court held that a temporary Government Servant has no right to hold the post and his service is liable to be terminated by giving one month’s notice without any reason. Similarly, it was also held that in case the initial entry into service was not as per the service regulations and against a sanctioned post, the employees have no right of regularization. .31. Since the dispute in the present case relates to illegal termination of the petitioners in violation of Section 25(f) of the Industrial Disputes Act, there is no need to consider the issue at length with respect to regularization and as such, I am not dealing with the decisions cited by the learned counsel for the corporation even though there is no dispute with respect to the legal proposition as enunciated by the Honble Supreme Court as well as this court in those decisions. .Analysis :- .32. The main reason which weighed with the Labour Court to decide the issue pertaining to illegal termination in favour of the workmen appears to be the voluminous receipts produced by the workmen in Ex.W-1 to W-5 series. The Labour Court marked the entire documents without making an attempt to verify as to whether the documents were evidencing employment of the workmen as Conductor. According to the Labour Court, Ex.W-1 consists of 318 receipts issued on various dates in the year 1997, 318 receipts issued for the year 1998 and 129 receipts for the year 1999. The receipts were taken as the basis for coming to the conclusion that 318 receipts for the year 1997 was ample proof of the service of the workman for 318 days in the year 1997. Similarly 318 receipts for the year 1998 was taken as evidence of work for 318 days during the said year. In the like manner, 129 receipts were taken as the total number of days of work in the year 1999. 33. I have summoned the Labour Court records with a view to arrive at conclusion as to whether the workmen have discharged the initial burden of 240 days of work in a year. I have verified the receipts for the year 1998 on random basis. 33. I have summoned the Labour Court records with a view to arrive at conclusion as to whether the workmen have discharged the initial burden of 240 days of work in a year. I have verified the receipts for the year 1998 on random basis. It was found that there were 48 double entries for the year 1998 alone and as such, the entire 318 receipts cannot be taken as proof of actual number of days worked for the year 1998. The learned counsel for the corporation was correct in his submission that there was no attempt made by the Labour Court to verify each and every receipt produced by the workmen in support of his plea that those receipts were proof of continuous work for the period of 240 days. There was no date in some of the receipts verified by me and merely on the basis of the date noted in the docket attached to each of the documents, the Labour Court took those documents as pertaining to every day’s work and on the basis of the number of receipts, the Labour Court fixed the number of days of actual work by the workman in the petitioner corporation. 34. Unless and until the documents submitted by the workman in Ex.W-1 to W-5 series were verified with the documents maintained by the Corporation certifying such collection, it cannot be said that the workman was in continuous service for more than 240 days. Therefore, the finding that the workman was in continuous service of more than 240 days in each of the year is liable to be set aside and the Labour Court has to examine the receipts independently with reference to collection sheet maintained by the petitioner corporation. .35. The other reason which weighed with the Labour Court to take a decision against the Corporation appears to be the non production of documents by the corporation in spite of application submitted by the workman. The fact remains that the Labour Court failed to take note of the order passed in I.A.No.245 of 2002 on 27.01.2003 dismissing the petition filed for production of documents, by recording the submission of the Management. 36. The workman made a prayer to cause production of the attendance register as well as duty charter, salary payment register etc. The fact remains that the Labour Court failed to take note of the order passed in I.A.No.245 of 2002 on 27.01.2003 dismissing the petition filed for production of documents, by recording the submission of the Management. 36. The workman made a prayer to cause production of the attendance register as well as duty charter, salary payment register etc. and it was submitted by the Management that the petitioner was not an employee of the Corporation from 21.09.1997 to 20.07.1999 and as such, it was not proper to direct them to produce the entire documents for the said period. The Labour Court by recording the statement, dismissed the application preferred by the workman. Therefore, obviously, the Labour Court has negatived the plea for causing production of the documents. In case the Labour Court was of the opinion that the documents summoned from the custody of the management were absolutely necessary for the effective disposal of the claim petition, the Court should have summoned those documents, failing which, it was open to the Labour Court to draw adverse inference against the management. Without directing the management to produce the documents sought for by the workman, it was not proper to draw adverse inference against the management. In the absence of a direction for production of the documents, the Court is not expected to draw adverse inference against a party who failed to produce the documents. 37. The learned Senior Counsel for the workman by placing reliance on the Supreme Court Judgment in R.M.Yellatti v. Asst. Executive Engineer, 2006(1) SCC 106 , contended that the Writ Petitioner failed to produce the muster roll, salary register and other relevant documents in support of their case and as such, the Labour Court has rightly drawn adverse inference against the management. .38. It is true that in Yellatti case, cited supra, the Honble Supreme Court observed that when the workman had stepped into the witness box and proved that he was in the service of the employer for 240 days in a given year, the management was duty bound to produce before the Labour Court the nominal muster rolls for the relevant period especially when they were summoned to do so. However, in the present case, though there was an application filed by the workmen to summon the documents from the Corporation, the said application was dismissed by the Labour Court by recording the submission of the Corporation to the effect that the documents summoned were not necessary. The said order has become final also. In such circumstances, though the management ought to have produced documents to prove that the workman was not in their service and there was no continuous work for more than 240 days in a given year, the fact remains that there was no direction given to them to produce the documents and as such, no inference could be drawn against them. 39. The Judgment of the Honble Supreme Court in Deep Chandra v. State of U.P. and another, 2001 (3) LLN 820 was relied on by the learned Senior Counsel for the workmen in support of his contention that the employee who had put in more than 240 days of service for several years cannot be ordered to discontinue the service without following the procedure contemplated under Section 2(f) of the I.D. Act. There is no dispute with regard to the legal proposition enunciated in the said Judgment, but, however, in the case on hand, the Labour Court miserably failed to examine the documents submitted by the workmen in support of their case that they were in continuous employment for more than 240 days in a given year. The Labour Court also failed to summon the documents from the employer to ascertain as to whether the workman had actually worked. .40. In a recent decision in the matter of Divisional Manager, New India Assurance Co. Ltd. v. A. Sankaralingam, 2008(13) Scale 232, the Honble Supreme Court extended the benefit of Sec.25(f) even to part time workmen and observed thus :- ."16.The question as to whether a part-time workman would be covered within the definition of Section 2(s) of he Act and whether he would be entitled to the benefit of continuous service under Section 25B and the benefit of Section 25F, is answered in favour of the workman- respondent. The appeal is accordingly dismissed". 41. The learned Senior Counsel by placing reliance on the Judgment of the Supreme Court in Management of Maduranthakam Coop. The appeal is accordingly dismissed". 41. The learned Senior Counsel by placing reliance on the Judgment of the Supreme Court in Management of Maduranthakam Coop. Sugar Mills Ltd. v. S.Viswanathan, 2005(3) SCC 193 contended that the Labour Court being the final court on facts, any finding given by the Labour Court is not liable to be interfered in a Writ Petition under Article 226 or 227 of the Constitution of India, unless the same is perverse. .42. In the very same Judgment, ( 2005(3) SCC 193 ) the Supreme Court also observed that if a finding of fact recorded by the Labour Court is perverse or if the same is not based on legal evidence, it is open to the High Court, exercising jurisdiction under Article 226 or 227 of the Constitution of India, to consider the question of fact also as decided by the Labour Court or Tribunal. However, the High Court must record its reasons as to why it intends to reconsider the case. 43. In the case on hand, there was no attempt made by the Labour Court to find out as to whether the workman have proved their continuous employment for more than 240 days in a given year. Even though it was the case of the workman that the appointment orders were issued to them, they have not produced the appointment order before the Labour Court. It was also the contention of the workmen that they have been transferred to Tindivanam Depot as Time Keepers but however, no documents were produced to show that they have been so transferred and appointed in the post of Time Keeper. Though receipts were produced by the workman to show prima facie that they were working as conductor in the service of the Corporation, no attempt was made by the Labour Court to verify the receipts individually and to satisfy that the claim of employee was justified. .44. In the random check done by me in respect of the receipts marked in Exs.W-1 series, it is seen that there is duplication in respect of the following receipts dated :- 04.01.1998, 07.01.1998, 15.01.1998, 09.02.1998, 11.02.1998, 15.02.1998, 25.02.1998, 26.02.1998, 04.03.1998, 09.03.1998, 15.03.1998, 24.03.1998, 26.03.1998, 01.04.1998, 05.04.1998, 22.05.1998, 25.05.1998, 28.05.1998, 04.06.1998, 09.06.1998, 10.06.1998, 14.06.1998, 15.06.1998, 21.06.1998, 22.06.1998, 06.07.1998, 11.07.1998, 30.07.1998, 07.08.1998, 19.08.1998, 29.08.1998, 02.09.1998, 09.09.1998, 10.09.1998, 15.09.1998, 010. 1998, 010. 1998, 20.10.1998, 210. 1998, 210. 1998, 210. 1998, 011. 1998, 011. 1998, 010. 1998, 20.10.1998, 210. 1998, 210. 1998, 210. 1998, 011. 1998, 011. 1998, 111. 1998, 211. 1998, 012. 19978, 012. 1998, 212. 1998. .45. This shows that though there were number of receipts in a given year, some of the receipts are for the very same day thereby indicating that all the receipts cannot be taken as proof of the factum of such work for a particular day. Since some of the receipts pertains to the very same day of work, it cannot be said that merely by producing the document, it was proved that the workmen was in continuous service of more than 240 days. .Legal position :- 46. The initial burden is always on the workmen to prove that they had completed 240 days of service. It is only after the discharge of the said initial burden that onus shifts to the management to disprove the version of the workman and to prove that the workman was not in the service of the employer or that they have not completed 240 days of continuous service in a given year. 47. In Manager, Reserve Bank of India v. S.Mani, (2005) 5 SCC 100 , after surveying the earlier decisions with regard to burden of proof, the Honble Supreme Court held that the initial burden of proof was clearly on the workmen to show that they had completed 240 days of service. .48. In Rajasthan State Ganganagar S.Mills Ltd. v. State of Rajastan and Anr., 2004 (8) SCC 161 , the Honble Supreme Court, observed thus :- ."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. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani, 2002 (3) SCC 25 . No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani, 2002 (3) SCC 25 . 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." 49. In yet another decision of the Supreme Court in R.M. Yellatti v. Asstt. Executive Engineer, (2006) 1 SCC 106 , the legal position was reiterated thus :- "Analysing 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 earners, 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 (the 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 the 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 nonproduction 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. The above judgments further lay down that mere nonproduction 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 lay 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 the facts of each case." 50. In Municipal Council, Sujanpur v. Surinder Kumar, (2006) 5 SCC 173 , the Supreme Court highlighted the legal position thus :- "12.The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. 13.Equally well settled is the principle that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. 14.It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. 51. While giving its finding with regard to Issue No.1, pertaining to the question of nonemployment, the Labour Court obviously was carried away by the number of receipts produced on the side of the workmen. However, the Labour Court failed to consider the receipts one after another to find out as to whether the entire receipts if taken together would prove that the workmen have worked for a continuous period of 240 days in a given year. The Labour Court also should have directed the management to produce the required documents in case the Court was satisfied that the initial burden has been discharged by the employee. The details furnished above on the basis of the random check made by me in respect of the receipts produced by the workmen in Ex.W-1 series clearly shows that the entire receipts were not examined by the Court and the conclusion arrived at by the Labour Court, therefore, is without materials and as such, is perverse, warranting fresh consideration. 52. The details furnished above on the basis of the random check made by me in respect of the receipts produced by the workmen in Ex.W-1 series clearly shows that the entire receipts were not examined by the Court and the conclusion arrived at by the Labour Court, therefore, is without materials and as such, is perverse, warranting fresh consideration. 52. The issue No.2, pertaining to reinstatement and payment of full back wages were also very mechanically considered and allowed by the Tribunal without any discussion as to whether the workmen were entitled for such reinstatement with full back wages. 53. It is trite that the payment of back wages is not automatic followed by an order of reinstatement. The Court has to consider the totality of the case including the method and manner of appointment, the way in which the employee was terminated and all other relevant aspects and there should be a factual finding justifying the order of reinstatement with back wages. 54. In the present case, the Issue No.2 was decided by the Labour Court without giving any factual finding as well as justification for granting such a relief. 55. In General Manager, Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 , the Supreme Court held that there is no rule of thumb that in every case where an Industrial Tribunal gives a finding that termination of service was in violation of Sec.25(f) of the Industrial Disputes Act, entire back wages should be awarded and further observed thus :- "8.There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year." 56. In U.P. SRTC Ltd. v. Sarada Prasad Misra, 2006(4) SCC 723, the Supreme Court, after referring to the judgment in G.M. Haryana Roadways v. Rudhan Singh, 2005 (5) SCC 591 cited supra, as well as the judgment in Allahabad Jal Sansthan v. Daya Shankar Rai, 2005 (5) SCC 124 , held thus :- "16. From the above cases, it is clear that no precise formula can be adopted nor “castiron rule” can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order." 57. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order." 57. The Honble Supreme Court in Talwara Cooperative Credit and Service Society Ltd., v. Sushil Kumar, 2008 (13) Scale 24 , after extracting the principles laid down in Municipal Council, Sujanpur v. Surinder Kumar, 2006 (5) SCC 173 , with regard to factors to be considered before grant of an order of reinstatement with back wages, observed thus :- "13.This court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the concerned employee was in fact gainfully employed." 58. In a recent decision in U.P. State Electricity Board v. Laxmi Kant Gupta, 2008 (13) Scale 39 , shift in the legal position with regard to the normal rule of reinstatement with back wages was indicated by the Supreme Court thus :- "11.Thus it is evident that there has been a shift in the legal position which has been modified by this Court and now there is no hard and fast principle now that on the termination of service being found to be illegal, the normal rule is re-instatement with back wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case." 59. It would be appropriate to reproduce the observation of the Honble Supreme Court in U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, JT 2005 (10) SC 344, with regard to the principles to be borne in mind while adjudicating the dispute between the management and the workmen, which runs thus :- "44. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. 45. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. 46. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident." 60. It is evident that there is no reasoning in the award of the Labour Court with regard to the order for reinstatement with full back wages. None of the legal principles enunciated by the Supreme Court in the matter of reinstatement as well as payment of back wages were taken into consideration by the Labour Court while adjudicating the matter. 61. Since the Labour Court failed to consider the issue by analyzing the facts in its proper perspective, I am of the opinion that the finding rendered by the Labour Court on both the issues are perverse, warranting interference by this court. 62. Accordingly, the award of the Labour Court impugned in all these Writ Petitions are set aside and the matter is remitted to the Labour Court for fresh consideration with the following directions :- (i)The Labour Court shall consider the receipts produced by the workmen and marked as Exs.W-1 series and each of the individual receipts have to be examined so as to come to a finding as to whether there was evidence to show that the workmen were in continuous service for a period of 240 days in a given year as well as their alleged total service. (ii)In the event of the Labour Court coming to a factual finding that the documents produced by the workmen clearly shows that they were in service for a period of 240 days in a given year, the Labour Court shall direct the employer to produce the Attendance Register, Duty Charter, Salary Payment Register and other statutory registers maintained under the Labour Welfare Legislations for the relevant period. (iii)The Labour Court shall give a factual finding with regard to the violation of Sec.25(f) of the Industrial Disputes Act as contended by the petitioners and shall decide the dispute in the light of the legal position indicated above. (iv)The Labour Court shall grant reasonable opportunity to the parties to adduce further evidence both oral as well as documentary. 63. The Writ Petitions are disposed of accordingly. No costs. Consequently, W.P.M.P.Nos.28008 to 28013/2004 and W.V.M.P.Nos.1749 to 1754/2004 are closed. 64. Since the industrial dispute is of the year 2001, the Labour Court is requested to dispose of the matter as expeditiously as possible.