JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. 2. By the impugned award dated 23.4.199 the Labour Court has set aside the termination of services of the workman a daily wager w.e.f. 1.9.1989 directing his reinstatement as regular employee of the establishment in service but without back wages. 3. Writ Petition No. 14232 of 2001 has been filed by the State of U.P. through Executive Engineer challenging the validity and correctness of the award dated 23.4.1999 by Presiding Officer, Labour Court Rampur in adjudication case No. 127 of 1991. The award was enforced by publication on the notice Board of the Court on 25.7.1999 and became operative after expiry of 30 days thereafter in accordance with the provisions of contained in Section 6-A of the U.P. Industrial Disputes Act 1947 (hereinafter referred to as ‘U.P. I.D. Act 1947’). 4. Writ Petition No. 8458 of 2001 has been filed by the workman challenging the part of same award dated 23.4.1999 impugned in Writ Petition No. 14232 of 2001 aforesaid. As the impugned award challenged in both the writ petitions is the same, they are being heard and are being decided by this common judgment as connected writs. 5. The facts of the case are that petitioner is Executive Engineer in Irrigation Division Moradabad, hereinafter referred to as the employer and the contesting respondent Sri Sarwan Kumar, is hereinafter referred to as the workman. 6. The workman was engaged as Labourer w.e.f. 1.1.1988 on daily wages in the Civil Construction Works of the Irrigation department of the Government at Moradabad. He claimed that he continuously worked since the date of his engagement till 31.8.1989 but was not allowed to work thereafter by petitioner w.e.f. 1.9.1989 without compliance of mandatory provisions of Section 6-N of U.P. I.D. Act, 1947 and compelled by his alleged illegal termination the workman raised an industrial dispute under Section 2-A of the U.P.I.D. Act, 1947. On conciliation proceeding having failed, the following dispute regarding termination of services was referred by State Government vide G.O. No. 275/B.C.P. 011/90 dated 6.5.1991 for workman adjudication by Labour Court, Rampur : ÞD;k lsok;kstdksa }kjk Jh Jo.k dqekj iq= Jh fdkksjh flag lEcfU/kr Jfed dh lsok,a fnukad 1-9-1989 ls lekIr fd;k tkuk mfpr rFkk vFkok oS/kkfud gS ;fn ugha rks Jfed fdl fgr ykHk 7 vuqrks"k dks ikus dk vf/kdkjh gS rFkk vU; fdu fooj.kksa lfgrAÞ 7. The reference aforesaid was registered as Adjudication case No. 127 of 1991 in Labour Court, Rampur and on receipt of notices, written statement of demand was filed by the workman. Rejoinder was also filed by the workman to the written statement of the employer before the Labour Court. 8. The employer in its written statement averred that the reference order is bad in law as they are officers in Irrigation department of the State Government which is not an industry to which Industrial Disputes Act applies; that respondent was appointed as Beldar on daily wage basis and did not work continuously for 240 days on or against a permanent post as claimed by the workman. It was also averred that his engagement during the period 31.8.1988 to 1.9.1989 was afresh every time and that he was engaged from time to time on need basis according to exigency of work as such the Provisions of Section 6-N of the U.P. I.D. Act, 1947 did not apply. A chart showing that the workman concerned had actually worked intermittently for 163 days in the establishment of the petitioner during the aforesaid span of his engagement was also appended with the written statement of the employer before the Labour Court. 9. The written statement of the employer and chart of Muster Rolls showing extract of actual number of working days of the workman in petitioner’s establishment during his period of engagement is as under : “1. That the reference to this learned Court is illegal and has been made without any basis. 2. That the opposite parties are merely the officers of the Government and are not employers. It is the State Government of Uttar Pradesh which is the employer and these proceedings are bad for non-joinder of the State of Uttar Pradesh. 3. That the Irrigation Department is not an industry and the alleged dispute is not covered under any provisions of the Industrial Disputes Act, hence this learned Court has no jurisdiction to entertain these proceedings. 4. That the applicant is not a workman under provisions of the Industrial Disputes Act. 5. That the applicant was not employed on 1.1.1998.It was only on 2.7.1988 that the applicant was engaged to work as Mali on daily wages and thereafter he was removed and re-employed several times. His contention that he has been in continuous service is absolutely incorrect. That the applicant is not a workman under provisions of the Industrial Disputes Act. 5. That the applicant was not employed on 1.1.1998.It was only on 2.7.1988 that the applicant was engaged to work as Mali on daily wages and thereafter he was removed and re-employed several times. His contention that he has been in continuous service is absolutely incorrect. He was not given any appointment order and has no right to any benefits available to take to the Government servants. 6. That the applicant has never been in any permanent regular or continuous service. He was employed from time to time for doing the work of Mali which is of casual nature, as and when required. 7. That the total period in which the applicant worked on daily wages is mentioned in the attached chart which may be treated as part of this written statement. 8. That no injustice has been done to the applicant by dispensing with his services on 8.9.1989 and the applicant has no right to claim reinstatement. 9. That the reference deserves to be rejected with costs. Sd. Illegible Junior Engineer Irrigation III, Sub-Division, Dhampur.” ÞJh Jo.k dqekj iq= Jh fdkksjh flag xk¡o Hkksj ia[k Mweiqj Mk0 yksnhiqj fryd tuin&fctukSj dk nSfud osru Hkksxh Jfed ds :i esa fd;s x;s dk;Z fnolksa dk fooj.k% eLVj jkSyksa ds vuqlkj dk;Z fnolksa dk fooj.k dqy ;ksx % 163 fnol 49 fnol 10. The case of the workman in his written statement before the Labour Court was that he had been engaged as a daily wage on 1.1.1988 and worked continuously upto 31st August, 1989 but when he reported for work on 1.9.1989, he was not taken on duty and that during the aforesaid span of 1 year 8 months he was in continuous service of the employers as such termination of his employment without compliance of the provisions of Section 6-N of the U.P. I.D. Act, 1947 amounted to retrenchment. 11. It is averred in the written statement of demand by the workman that he had been issued a certificate by the Assistant Engineer inter alia that he had worked in the establishment on daily wage basis during the span of period 1.1.1988 to 1.8.1989 and wishing him better future prospects. 11. It is averred in the written statement of demand by the workman that he had been issued a certificate by the Assistant Engineer inter alia that he had worked in the establishment on daily wage basis during the span of period 1.1.1988 to 1.8.1989 and wishing him better future prospects. He also claimed that since his termination was illegal, being in violation of the provisions of U.P. I.D. Act, 1947 as such he is entitled to normal relief of reinstatement in service with full back wages for the intervening period of unemployment and all consequential benefits as well as regularisation of his services according to the provisions of U.P. Industrial Disputes Act, 1947. The written statement of demand of the workman is as under : Þ1- ;g fd ÁkFkhZ Jfed mijksDr lsok;kstdksa ds ;gka fn0 1-1-1988 ls nSfud Hkksxh Jfed ds :i esa dk;Zjr gqvk Fkk viuk dk;Z larks"ktud :i ls vf/kdkfj;ksa fd bPNkuqlkj dk;Z djrk pyk vk jgk FkkA 2- ;g fd ÁkFkhZ Jfed dks bl vkk; ds Áek.k i= Hkh lsok;kstdksa }kjk Ánku fd;s x;s ftlesa muds dk;Z dks larks"ktud gksuk vkSj mTtoy Hkfo"; dh dkeuk djrs gq, Áekf.kr fd;kA 3- ;g fd ÁkFkhZ Jfed fnukad 1-9-1989 dks vius dk;Z LFky [kks cSjkt ij dk;Z djus igq¡pk rc mDr cSjkt esa fu;qDr jketeSV us ;g dg dj dk;Z ij ugha fy;k fd mPp vf/kdkfj;ksa us euk dj fn;k euk djrs le; fdlh Ádkj dk uksfVl vkSj Áfr dj vkfn ugha fn;kA 4- ;g fd ÁkFkhZ Jfed fd lsok;kstd ds ;gka ,d o"kZ] vkB ekg] fd lsok ;ksxnku jgk gS tks fd m0Á0 vkS|ksfxd fookn fu;e fd /kkjk 6&,u ds vuqlkj NVuh Áfrdj vkfn ikus dk Ákfo/kku ds vUrxZr vkrk gSA 5- ;g fd fookfnr Jfed vius fookn ds flyflys esa okrkZyki vkSj vius fookn dks fuLrkj.k djus gsrq cjkcj Á;Rukhy jgk ijUrq lsok;kstdksa us dksbZ /;ku ugha fn;k rFkk fdlh Ádkj dk fyf[kr mRrj Hkh ugha fn;kA 6- ;g fd fookfnr Jfed us vius fookn dks fuiVkus vkSj le>kSrk djus gsrq fnukad 24-7-1990 dks fookn lujk;u lfefr fctukSj ds le{k ÁLrqr fd;k tgka ij le>kSrk u gksus ds dkj.k fookn ekuuh; U;k;ky; dks kkluknsk la0 388&95 Je vk@36&Je ¼1½fo0lh0ih0 11@98 jkeiqj fnukad 6-6-1991 ds ek/;e ls fuEu okn fcUnq % ÞD;k lsok;kstdksa }kjk Jh Jo.k dqekj iq= Jh f=yksdh flag lacaf/kr Jfed dh lsok;sa fnukad 1-9-1989 ds lekIr fd;k tkuk mfpr@vFkok oS/kkfud gS ;fn ugha rks lacaf/kr Jfed fdl fgr ykHk@vuqrks"k dks ikus dk vf/kdkjh gS rFkk vY; fdr fooj.k lfgrA 7- ;g fd ÁkFkhZ Jfed lsok lefiZr ls vkt rd csdkj gSA 8- ;g fd lsok;kstdksa }kjk bl fookn esa viuk Áfrfuf/k m0Á0 vkS|ksfxd fookn vf/kfu;e dh /kkjk 6&vkbZ ds vUrxrZ fu/kkfjr Áko/kku ds vUrxZr ÁLrqr ugha fd;k blfy, lsok;kstdksa ds vf/kdkj i= dks fujLr fd;k tk,A 9- ;g fd Jfed }kjk mijksDr fyf[kr dFku esa vius fookn ds laca/k esa iw.kZ tkudkjh vafdr dh gS vkSj blds vk/kkj ij iqu% lsok esa fu;qDr fd;s tkus dk vfèkdkjh gS D;ksafd lsok;kstdksa }kjk m0Á0 vkS|ksfxd fookn vf/kfu;e dh /kkjk 6&,u] ds Ákoèkkuksa dk ikyu ugh fd;k x;k gSA vr% Jheku~ th ls vuqjks/k gS fd mijksDr dFku ds vuqlkj eq>dksa fnukad 1-9-1989 ls lsok esa fu;fer:i ls fy;k tk, rFkk lsok;kstd ds vknsk dks voSèkkfud@vuqfpr ?kksf"kr djds csdkjh ds osru lfgr ,oa vU; fgr ykHk vknsk ,okMZ ikfjr djus ds Ñik djsaA ÁkFkhZ Jo.k dqekjÞ 12. The workman filed his rejoinder to the written statement of the employer, copy of which is appended as Annexure-2 to the connected Writ Petition No. 8458 of 2001, Shrawan Kumar v. Presiding Officer, Labour Court and others, filed by him. A perusal of the rejoinder shows that though it is not an affidavit, the workman has replied to paragraph Nos. 5, 6 and 9 of the W/s of the employers but has not rebutted the averments made in paragraph No. 7 of the W/s of the employers wherein it has been specifically averred by the employers that the workman had worked for 163 days on daily wages as per chart appended which may be treated as part of the written statement of the employers. Relevant paragraph Nos. 5, 6 and 7 of the rejoinder of the workman are quoted here-under for ready reference. Þ5- ;g fd lsok;kstdksa ds dFku dk iSjk ua0 5 xyr ,oa fujk/kkj gS blfy;s ekU; ugha gS vly rF; bl Ádkj gS fd Jfed dks fn0 1-9-1989 dks tc fd Jfed vius dk;ZLFky ij rSukr Fkk ml ij mldks dk;Z ls jksd fn;k x;k gS vkSj mlh fnu ls ;g fookn mRiUu gqvk gS vkSj iqu% lsok esa cgky fd;s tkuk oS/kkfud gSA 6- ;g fd lsok;kstd ds dFku dk iSjk ua0 5 vekU; gS D;ksafd Jfed yxkrkj fnukad 1-1- 1988 ls 1 -9-1989 rd iwjs ,d o"kZ 9 ekg rd dk;Z fd;k gSA tks fd vkS|ksfxd fookn vf/kfu;e ds vuqlkj fu;fer deZdkj gks tkuk FkkA mldks fu;fer deZdkj u cukdj fcuk uksfVl rFkk NVuh Áfrdkj rd dk Hkqxrku ugha fd;k x;k gS bl Ádkj ls /kkjk 6&,u dk mYya?ku fd;k x;k gSA 7- ;g fd lsok;kstd ds dFku dk iSjk ua0 7 vekU; gS D;ksafd Jfed dk fn;k x;k odZ pktZ eux<+ar ,oa rF;ksa vkSj rkjh[kksa ds foijhr gS ek= U;k;ky; dks xqejkg djus dh lkftk gS tc fd rF; ;g fd Jfed fnukad 1-1- 1988 ls 1 -9-1989 rd dk;Z ij FkkAÞ 13. On the basis of pleadings of the parties, the Labour Court framed an additional issue to the effect as to whether the order of reference is bad in law in view of the reasons given in paragraph Nos. 2, 3 and 4 of the written statement of the employers. 14. By its order dated 30.11.1991 the Labour Court decided the additional issue holding that reference was not bad in law. 15. 2, 3 and 4 of the written statement of the employers. 14. By its order dated 30.11.1991 the Labour Court decided the additional issue holding that reference was not bad in law. 15. The contesting workman failed a photocopy of the certificate issued by Assistant Engineer referred to in his written statement of demand as documentary evidence in support of his case and also examined himself as WW-1 on oath inter alia that he had during the span of period 1.1.1988 to 31.8.1989 put in 240 days of continuous service. 16. It appears that employers also filed extract of muster rolls for the relevant period to prove that the workman had worked intermittently for 163 days on daily wages in the establishment and not continuously for 240 days during the span of his period of engagement w.e.f. 1.1.1988 to 31.8.1989 as claimed by him. 17. The parties were given opportunity to lead evidence and though the workman examined himself as WW-1 and proved the certificate of span of work in petitioner’s establishment as Ex-w-1 on record by his evidence on 21.2.1992 but the employer neither produced any witness in support of this case nor cross-examined the workman. As no witness was produced by the employers, hence their rights to produce evidence was forfeited by the Labour Court and exparte award/order dated 17.3.1992 was passed against them. 18. Aggrieved by the exparte award/order dated 17.3.1992 the employers filed writ petition No. 23814 of 1993, State of U.P. v. Shrawan Kumar and another, which was allowed by the Court vide order and judgment dated 24.8.1998 setting aside the exparte impugned award remitting the matter back to the Labour Court for adjudication of the case on merits on basis of material already on record. 19. The judgment of the High Court in Writ Petition No. 23814 of 1993 has a crucial importance on the question of burden of proof now being raised by the counsel for the workman for the first time in these writ petitions, hence the relevant extract of the judgment is quoted below for ready reference. “In view of the aforesaid findings this writ petition succeeds and is allowed. The impugned award dated 17.3.1992 at Annexure-4 to the writ petition is hereby set aside. “In view of the aforesaid findings this writ petition succeeds and is allowed. The impugned award dated 17.3.1992 at Annexure-4 to the writ petition is hereby set aside. Labour Court is directed to consider the matter on the basis of materials already on record taking into consideration all evidence and the arguments of both the sides. As the matter is very old one, such decision is to be taken within four months from the date of production of a certified copy of this order.” 20. In the aforesaid backdrop after setting aside of the award dated 17.3.1992 and on remand the subsequent impugned award dated 23.4.1999 made by the Labour Court, Rampur, is challenged in these two connected writ petitions. 21. The award impugned is assailed by the employer on the ground that it is arbitrary and illegal; Ex-W-1 the certificate issued by the Assistant Engineer/employer, filed and proved by the workman as Exhibit W-1, only shows that workman had worked during the span of period since August 1988 to 31.8.1989 and does not mention any specific number of days on which the workman had actually worked, as such the findings of the Labour Court in respect of ‘continuous service’ by the workman and violation of Provisions of Section 6-N of the U.P. I.D. Act, 1947 are perverse being against the record. 22. The Standing Counsel on behalf of Employer Executive Engineer, Irrigation Division, Moradabad has emphasised upon the grounds taken in the writ petition and submits that from the muster rolls filed by the petitioner alongwith written statement before the Labour Court it is evident that the workman had actually not worked for 240 days of continuous service during the period of 12 calendar months during the span of his engagement w.e.f. August 1988 to 31.8.1989 counting backward from the date of his disengagement. It is stated that the Labour Court has failed to consider the documents and written statement as directed by the High Court in its judgment in W.P. No. 23814 of 1993 aforesaid in its correct perspective as such the award is vitiated being illegal, arbitrary perverse and against the material on record. 23. It is stated that the Labour Court has failed to consider the documents and written statement as directed by the High Court in its judgment in W.P. No. 23814 of 1993 aforesaid in its correct perspective as such the award is vitiated being illegal, arbitrary perverse and against the material on record. 23. The other grounds for assailing the award are that Irrigation Department of the Government is not an Industry; that since daily wagers engaged to meet in the exigency of work are paid from the contingency fund hence such workmen are not Government employees appointed against any post in accordance with Recruitment Rules, therefore, no industrial dispute could have been raised under U.P. I.D. Act, 1947. 24. It is also submitted that there is no discussion or finding of the Labour Court regarding applicability of provisions of the U.P. I.D. Act, 1947 particularly Section 6-N of the Act, 1947, in so far as Government Rules for recruitment of an employee and the provisions are concerned, as such the award impugned is also liable to be quashed for non-application of mind by the Labour Court. 25. It is stated that the Supreme Court has already pronounced various decisions in the aforesaid context hence the petitioner being a daily wager could not have been reinstated as a regular employee in the Government department by the Labour Court as there is no pleading or evidence about existence of any vacancy of a sanctioned post and on this count alone the workman concerned is not entitled to get any relief from this Court in the writ petition filed by the workman. Reliance has been placed in respect of these contentions upon (1997) 5 SCC 434 , Executive Engineer State of Karnataka v. K. Soma Setty and others, as well as upon JT 1997 (4) SC 560 and upon the judgment rendered in Himanshu Kumar Vidyarthi v. State of Bihar and others, wherein it is stated to have been held that a daily wager has no right to post and his disengagement is not arbitrary as such he cannot raise any Industrial Dispute in regard to continuation in service as a regular employee. 26. 26. The contention of the counsel for the workman is that the writ petition challenging the findings in the award has been filed by the State of U.P. after laps of about two years by concealing the fact that workman has already recovered his salary from the date of the award though recovery certificate issued by Deputy Labour Commissioner dated 15.7.2000 and obtained the following interim order dated 16.4.2001 in the writ petition. “Issue notice. The operation of the impugned award dated 23.4.1999 published on 26.7.1999 shall remain stayed provided the petitioner reinstates respondent No. 2 within one month from today and pay him salary regularly for the period he works.” 27. The above interim order was clarified vide order dated 6.3.2002 that it would be applicable from the date of order hence it would not have any effect upon that part of the award which has already been executed prior to passing the stay order dated 13.7.2002. The order is as under : “The interim stay order granted by this Court only means that it will operate to the extent to which the impugned award has not been executed for future only after the date of passing of the stay order. The interim order could not have the effect of ordering restitution of that part of the Award which has already been executed before passing of the stay order. The restitution is permissible only after the writ petition is finally allowed. In the circumstances recovery/deduction from the salary of respondent No. 2 for recovering the amount, which has already been paid prior to passing of the stay order, will remain stayed. 28. The order was again modified vide following order dated 27.3.2003 to the effect that the contesting respondent shall be paid salary at rate of 3262/- per month w.e.f. 11.7.2001 the date on which he was reinstated in service. The order is thus : “Heard learned counsel for the parties. The Labour Court directed petitioner’s reinstatement for payment of regular salary with back wages. Initially the award was stayed but subsequently by order dated 6.3.2002 was directed that no deduction of the amounts already paid shall not be made from salary. Section 17-B of the Industrial Disputes Act, 1947 provides that the workman shall be paid wages last drawn by him. Initially the award was stayed but subsequently by order dated 6.3.2002 was directed that no deduction of the amounts already paid shall not be made from salary. Section 17-B of the Industrial Disputes Act, 1947 provides that the workman shall be paid wages last drawn by him. Annexure-2-A of the writ petition filed by the State shows that in April, 1989, petitioner was drawing Rs. 3262 per month even as a muster roll employee. He is, therefore, entitled to at least Rs. 3262/- per month. Counsel for State submitted that respondent/workman has been reinstated. He is, therefore, entitled to wages and directed to be paid at Rs. 3262/- per month with effect from 11.7.2001, and shall continue to be paid, the wages at the same rate regularly every month.” 29. It was yet again modified vide order dated 4.4.2003 that the contesting respondent shall get wages which he was getting at the time of termination of service under Section 17-B of the I.D. Act, 1947. 30. It appears that thereafter an application No. 165707/2003 was moved by the State for modification of orders dated 27.3.2003 and 4.4.2003. As the workman at the time of termination of his service was drawing Rs. 570 per month and not Rs. 3262 as was allowed by the aforesaid orders. The application was taken up by the Court on 5.11.2003 and 6.11.2003, the following orders were passed : 5.11.2003 “Learned Standing Counsel states that the order dated 4.4.2003 was passed by this Court on incorrect interpretation of Annexure-2A of the writ petition and that, in fact, respondent No. 2 was drawing 570/- per month and the amount mentioned in Annexure-2A is the total amount of 7 labourers. For this purpose, he has annexed the statement with the affidavit filed in support of the modification application. Counsel for respondents seeks a short time to ascertain the facts. Put up tomorrow. 6.11.2003 “Civil Misc. Application No. 165707 of 2003 dated 16.9.2003 has been filed by the State to modify the orders dated 27.3.2003 and 4.4.2003 to the effect that the respondent No. 2 be made entitled to receive only 570/- per month, which were the wages last drawn by him w.e.f. 27.8.1999. This matter arises out of Labour Court award directing the reinstatement of the workman respondent and for payment of salary with back wages. This matter arises out of Labour Court award directing the reinstatement of the workman respondent and for payment of salary with back wages. The award was stayed on 16.4.2002 provided the petitioner reinstates respondent No. 2 within one month and pays him salary regularly for the period he works. By an order dated 6.3.2002, it was clarified by this Court that the interim stay order granted by the Court only means that it will operate to the extent to which the impugned award has not been executed for future. On 27.3.2003, I decided an application filed by respondent No. 2 holding that respondent No. 2 is entitled to wages w.e.f. 11.7.2001 and directed that these wages shall be paid to him at the rate of Rs. 3262/- per month, and that petitioner shall continue to pay the wages at the same rate regularly every month. Once again, a clarification was sought and by an order dated 4.4.2003, I modified the order dated 27.3.2003 to the effect that respondent-workman shall be made entitled to the reinstatement with effect from 26.8.1999 when the award came enforceable. It was found by me that the award has become enforceable after one month of its publication and thus the wages at the rate of Rs. 3262/- per month were directed to be paid w.e.f. 27.8.1999. Now this third modification application has been filed pointing out an apparent error in my orders. Annexure-2A to the writ petition discloses that petitioner was paid Rs. 3262/- as muster roll payment for the month of April, 1989 for one month. On the basis of the said document, I had found that respondent-workman was being paid Rs. 3262/- per month. The State Government has now clarified that this payment of Rs. 3262/- of the muster roll was in respect of six workers. Annexure-1 to the affidavit filed in support of the modification application is the copy of muster roll of April, 1989. This muster roll contains the names of six workers. The workers at serial Nos. 1 to 4 were paid Rs. 19/- per day and in respect of workers-Beldars shown at serial Nos. 5 and 6 were paid Rs. 17/- per day. Respondent No. 2 Shrawan Kumar is at serial No. 3. He was paid Rs. 19/- per day and on the strength of working of 30 days, he was paid to Rs. 570/- for April, 1989. 19/- per day and in respect of workers-Beldars shown at serial Nos. 5 and 6 were paid Rs. 17/- per day. Respondent No. 2 Shrawan Kumar is at serial No. 3. He was paid Rs. 19/- per day and on the strength of working of 30 days, he was paid to Rs. 570/- for April, 1989. It is thus an apparent error in the orders in directing the petitioner to pay Rs. 3262/- per month to the respondent-workman. Learned counsel for petitioner states that the respondent No. 2 filed a contempt petition in which the officer’s concerned have been summoned and the contempt matter is fixed on 10th November, 2003. The respondent No. 2 has once again prayed for adjournment of the case. In view of the fact that the officers have been summoned in contempt petition, I do not propose to adjourn the case. The prayer for adjournment is rejected. The modification application dated 16.9.2003 under consideration is allowed, and the interim orders dated 27.3.2003 and 4.4.2003 are modified to the extent that instead of Rs. 3262/- per month, the respondent No. 2 will be paid the wages at the rate of Rs. 570/- per month which was last drawn by him, w.e.f. 27.8.1999. A certified of this order be supplied to the petitioner on payment of usual charges today.” 31. The counsel for the workman placed application No. 105087/08 dated 30.6.2008 alongwith supplementary affidavit filed by the respondent workman wherein it has been averred that he was appointed on the post of Beldar (Class IV) in sub-division 1st Irrigation department, district Moradabad and in pursuance of the award dated 23.4.1999 he is entitled to reinstatement as regular employee therein. It is also averred that in March 2003 one Shri Manohar Lal a regular Class IV employee working in the establishment retired, hence by letter dated 10.3.2003 the Assistant Engineer concerned sent requirement to the Executive Engineer, who by his order dated 26.3.2003 directed the workman concerned to work in place of Sri Manohar Lal, the retired employee. Copy of the order dated 26.3.2003 is appended as Annexure No. 2 to the supplementary affidavit. Pursuant to thereof the workman joined sub-division IV Sher Court Bijnor Mandal, Moradabad on 1.4.2003. Copy of the order dated 26.3.2003 is appended as Annexure No. 2 to the supplementary affidavit. Pursuant to thereof the workman joined sub-division IV Sher Court Bijnor Mandal, Moradabad on 1.4.2003. The workman also moved applications to the Chief Engineer and other authorities requesting to treat him as a regular employee on the vacant post of Manohar Lal, the retired employee as one Sri Chandra Shekhar Prasad Sharma junior to him had been regularised. Consequently report was called for by the Chief Engineer and the Superintending Engineer regarding absorption of the workman concerned in the department. The workman prayed that above facts and circumstances mentioned in the supplementary affidavit may also be considered by the Court in deciding the writ petition. 32. Another application No. 147357 with supplementary affidavit was also moved by the workman on 9th July, 2008 inter alia that respondent workman is working as beldar and is being paid wages @ Rs. 570/- per month as directed by order dated 6.11.2003 till now. In support of this he has appended pay bill of June, 2008 as Annexure SA-1 to the supplementary affidavit. 33. The learned counsel for the workman has relied upon the findings of the Labour Court reproduced below and has urged that in view of Rules 23 to 27 of the Industrial Tribunal and the Labour Court Rules of Procedure, 1967 an illegality has been committed by the Labour Court in considering the muster roll which was not part of the record as it was not proved before it. The part of award relied upon by the workman is thus : ÞJfed ds vf/kÑr Áfrfuf/k;ksa }kjk dgk x;k fd ekLVjjksy ds lkFk lkj u rks Jfed dks LohÑr gS vkSj u ;g Áekf.kr fd;k x;k gS vr% bl ij fopkj ugha fd;k tk ldrkA mDr ekLVj jksy lsok ;kstdksa dh vksj ls nkf[ky ugha fd;k x;k gSA Jfed dh vksj ls dkxt ÁnkZ MCyw&1 nkf[ky fd;k x;k tks lgk;d vfHk;Urk }kjk fn;k x;k Áek.k i= dh QksVks Áfr gS ftls Jfed us vius kiFk dFku }kjk Áekf.kr fd;k gS bl Áek.k i= esa mYys[k fd;k x;k gS fd Jo.k dqekj iq= Jh fdkksjh flag us vxLr 1988 ls 31 vxLr 1989 nSfud osru ij le;≤ ij dk;Z fd;kA mijksDr vof/k esa mldk O;ogkj Hkh Bhd jgkAÞ 34. On the basis of aforesaid discussion in the award relied by the counsel for the workman it is urged by him that abstract of attendance from muster roll cannot be considered by Labour Court unless it is proved by oral evidence specifically when it was not admitted by the contesting workman. According to him, Rule 27 provides that when a document is rejected as inadmissible or not proved, it is to be returned to the party concerned and in case of his absence the same is to be kept in a sealed cover with endorsement “Not part of record” and therefore no finding can be given by the Labour Court on basis of such a document which does not form part of record. 35. It is then urged by the counsel for the workman that the observation or discussion made by the Labour Court in respect of Exihibit W-1 the certificate issued by an officer of the petitioner totally falsifies the stand taken by the employer in its written statement that workman had not worked continuously for 240 days in a year. It is stated that the abstract of attendance for the years 1988-1989 shows the working of the workman in the span of period of work mentioned in Ex.W-1, issued by the employers themselves, which is a relevant piece of evidence and supports the case of the workman especially when the employer led no evidence to disprove its contents. It is also stated that the employers failed to produce the Assistant Engineer, who had issued the said certificate as witness before the Labour Court as such the employers cannot be permitted to raise this plea for the first time in the writ petition. 36. The counsel for respondent workman further relied upon the following excerpt in the impugned award and submitted that the Labour Court after considering the pleadings of the parties, statement on oath of the workman and documents on the record of adjudication case has recorded findings in favour of the workman, which are based on appreciation of oral and documentary evidence. The counsel for respondent workman further relied upon the following excerpt in the impugned award and submitted that the Labour Court after considering the pleadings of the parties, statement on oath of the workman and documents on the record of adjudication case has recorded findings in favour of the workman, which are based on appreciation of oral and documentary evidence. The findings in the award relied upon by the counsel for the workman is as under : ÞJfed us viuk kiFk c;ku fn;k gS fd ftlesa dgk gS fd eSaus 1-1-1988 ls 31-8-1989 rd yxkrkj dk;Z fd;k vkSj esjk dke fcYdqy lgh Fkk Jo.k dqekj ds bl dFku dks u ¼ekuus dk dkbZ vkSfpR; Árhr ugha gksrk tks fd D;ksafd½ u gh lk{; ls dksbZ ftjg gqbZ gS vkSj u gh blds foijhr dksbZ lk{; ÁLrqr fd;k x;k gS mYys[kuh; gS fd lsok ;kstdksa }kjk ekLVj dk lkj nkf[ky djds ;g Lohdkj fd;k x;k fd tqykbZ 1988 ls vÁSy 1988&1989 rd 117 fnu dk dk;Z fd;k FkkA ;fn eSaus mlus vxLr 1989 rd dk;Z fd;k gS tSlk fd Áek.k i= ÁnkZ MCyw&8 ÁnkZ MCyw&1 nkkZrk gS vkSj tuojh 1988 ls gh dk;Z djuk kq: dj fn;k gks tSlk fd Jfed dFku ls Li"V gS rks Jfed dk lsok dky 240 fnu ls vf/kd dk gks tkrk vkSj og kq: ls lsok esa gh ÁfrLFkkfir gksus ;ksX; gSA lsok;kstdksa dh vksj ls kkldh; vf/koDrk }kjk ;g Hkh dgk x;k fd Jfed dks 240 fnu 1 o"kZ esa iwjk djuk pkfg, tcfd /kkjk 6&,u ds vUrZxr 12 vaxzsth eghus ds vUrZxr ;g dk;Z iwjk gh i;kZIr gSA bl Ádkj vxLr 1988 ls vxLr 1989 rd Hkh 240 fnu dk;Z iwjk gks tkrk gS rks Jfed dks ugha fudkyk tk ldrk gSA nksuksa i{kksa ls mijksDr mYys[k mfYyf[kr lk{;ksa ds vfrfjDr dksbZ lk{; ugha ÁLrqr fd;k x;k u bafxr fd;k x;kA mijksDr rF;ksa ds vk/kkj ij eSa bl fu"d"kZ ij igq¡prk gw¡ fd Jfed Jh Jo.k dqekj dks lsok;kstdksa }kjk fnukad 1-9-1989 ls lsok ls i`Fkd djuk u mfpr Fkk u oS/kkfud Fkk rn~uqlkj bldk i`Fkdhdj.k fujLr gksus ;ksX; gS vkSj og iqu% lsok esa ÁfrLFkkfir gksus dk gdnkj gSAÞ 37. It is lastly urged that it is well-settled by a number of judgments of the apex Court as well as High Courts that evidence cannot be reappreciated or by them for upsetting findings of facts based on oral as well as documentary evidence on record in exercise of power of their extraordinary powers under Articles 226 of the Constitution. Reliance in this regard has been placed upon judgments rendered in 2008(7) ADJ 255 (Paras 21, 22, 23) District Panchayat (Zila Parishad), Kanpur Dehat v. Presiding Officer, Labour Court-4, Kanpur Nagar and another judgment dated 10.7.2008 in Writ Petition No. 42241/97, State of U.P. v. Presiding Officer Industrial Tribunal and others. 38. In so far as judgment relied upon by Sri B.N. Singh, learned counsel for the workman in 2008(7) ADJ 255 , District Panchayat (Zila Parishad) (supra) is concerned, the workman in that case had continuously worked without break in service on the post of Pond Clerk since 1963 till 31.12.1989. The Labour Court had found that he had proved his continuous working for 240 days in a year and that he was illegally terminated from service. 39. The question in the aforesaid case was that award therein was exparte and the application to set aside the exparte award had been filed much after the period of 10 days prescribed under Rule 16 of the U.P. Industrial Disputes Rules, 1957, hence whether the application of the employer for recall of the ex parte order or award was justified or not. The High Court in these circumstances upheld the award that the termination of workman without complying with the provisions of Section 6-N of the Act, 1947 was illegal and the workman was entitled to be reinstated in service as the application for recall of the order was not submitted within 30 days from the date the award became enforceable under Section 6-A of the U.P. I.D. Act, 1947. 40. The award rendered in the facts and circumstances of that case was therefore, totally different from the facts of the instant case where there is no question of limitation involved for recall of any ex parte order in this petition and the workman has failed to prove his continuous service of 240 days in 12 calendar months in the instant case. 41. In Civil Misc. 41. In Civil Misc. Writ Petition No. 42241 of 1997, State of U.P. and others v. The Presiding Officer, Industrial Tribunal and others, the Court again found strength from the record that the workman had worked continuously for more than 240 days in 12 calendar months. The Tribunal after considering the pleadings, oral and documentary evidence and replying upon the judgment of the apex Court in Desh Raj v. State of Punjab, AIR 1988 SC 1182 as well as the judgment rendered in the case of Bangalore Water & Sewerage Board v. A. Rajappa, 1978(2) SCC 213 , came to conclusion that the Irrigation Department of the Government is an industry. The distinguishing feature in that case was also the fact that the workman had been regularized in service was an admitted fact between the parties. However, in the instant case such is not the situation. 42. It appears from record of the writ petition that after passing of the award the workman moved several applications alongwith the supplementary affidavits before this Court (as referred to in the body of this judgment) for his absorption and regularisation of services in the department in the vacancy caused due to retirement of one Sri Manohar Lal and not having proved that he had worked for 240 days. The judgment in the State of U.P. and others v. The Presiding Officer, Industrial Tribunal and others, does not apply to the facts of the present case. FACTS OF CIVIL MISC. WRIT PETITION NO. 8458/2001 43. The relief claimed by the workman in this petition is for writ of certiorari quashing, the part of the award dated 23.4.1999 by which the Labour Court denied back wages to him and for a mandamus commanding the employer to pay entire arrears of his salary and other emoluments payable to the petitioner under the terms of employment w.e.f. 1st September, 1989 as well as directing reinstatement of the workman on regular basis. 44. The award is assailed on the ground that employers had taken no plea in the written statement and led no evidence before the learned Labour Court that the concerned workman was employed somewhere else during the period of litigation before the Labour Court for denial of back wages to him. 44. The award is assailed on the ground that employers had taken no plea in the written statement and led no evidence before the learned Labour Court that the concerned workman was employed somewhere else during the period of litigation before the Labour Court for denial of back wages to him. It is averred that as he did not work anywhere and remained unemployed from the date of his termination till the date of the award as such there is every justification for award of back wages to him. 45. The counsel for the workman has placed paragraph Nos. 3 to 21 of the writ petition No. 8458 of 2001 particularly laying emphasis upon its paragraphs 7 to 10, therefore, averments made in these paragraphs may also be referred to. The petitioner in paragraphs 7 to 10 has stated that his span of working was from 1.1.1988 to 1.9.1989 i.e. of one year and 9 months, hence he is entitled to get the relief; that the Labour Court vide its judgment and order dated 17.3.1994 decided the case in favour of the petitioner reinstating him in service on regular basis with full back wages. It has been stated in paragraph 9 that aggrieved by judgment and order dated 17.3.1994 the employer filed writ petition No. 23814 of 1993 which was allowed vide order and judgment dated 24.8.1998 setting aside the impugned award and directing the Labour Court to consider the matter on the basis of material already on record taking into consideration all evidence and arguments of both the parties and that pursuant to the aforesaid order and judgment dated 24.4.1998 of the High Court, the Labour Court vide its impugned award dated 23rd April, 1999 held that the petitioner was illegally removed from service with effect from 1st September, 1989 and directed reinstatement in service on regular basis in the employer establishment. 46. In the aforesaid writ petition No. 8458 of 2001 it has been directed by the High Court that the extract of muster roll filed by the employer referred to in the impugned award dated 17.3.1992 ought to have been considered and that the vital consideration before the Labour Court would be as to whether the workman concerned has completed 240 days of continuous service or not in accordance with the provisions of law in support of his above contentions. 47. 47. It is urged by the counsel for the workman that in the instant case no reason has been given by the Labour Court for departure from the normal rule, as such back wages could not have been denied to him particularly in view of averment made in para 7 of his written statement wherein the workman has specifically averred that he is unemployed since the date of termination of his service. 48. He has also relied upon the law laid down by Supreme Court in 1983 (4) SCC 491 (Para 17), Shambhu Nath Goyal v. Bank of Baroda and others, wherein it has been held that when order of termination is found to be illegal the normal relief awarded to a workman is of reinstatement with full back wages and if any departure is claimed by employer it is for him to plead and prove his case for denial of back wages. 49. As regards the case of Shambhu Nath Goyal (supra) is concerned, the question before the Court was at what stage the Management must seek opportunity to adduce further evidence, if any, against the allegations of the workman regarding non-compliance of principles of natural justice. 50. The law earlier was that if the services of the workman have been terminated, the employer must plead in his written statement that he wants to adduce further evidence in support of its case. Admittedly, neither the employer nor the workman have pleaded any gainful employment, therefore, there is no question of discharge of burden of proof or discharge of onus in this regard by the employer before the Tribunal. The law is now well-settled that the workman must come with clean hands and states where he was gainfully employed. In any case, the workman has not been awarded back wages on the ground that he has not made any efforts to mitigate his hardship by seeking employment during his period of unemployment, hence this case also does not help to the petitioner. 51. It is then submitted by Sri B.N. Singh, learned counsel for the workman that after the award, contesting respondent has been reinstated by petitioner employer and is regularly working since 11.7.2001 but is only being paid Rs. 570/- per month which was being paid to him at the time of termination of service on 1.9.1989. He has relied upon : (i) Paragraph Nos. 570/- per month which was being paid to him at the time of termination of service on 1.9.1989. He has relied upon : (i) Paragraph Nos. 2, 3, 8, 9 and 10 of the judgment of the apex Court in 1999 SCC (L&S) page 592, Samishta Dube v. City Board Etawah and another. (ii) Paragraph Nos. 2, 12, 14, 16 and 20 of the judgment in 2003 (97) FLR page 608, S.M. Nilajkar and others v. Telecom District Manager, Karnataka. (iii) Paragraph Nos. 1, 2, 3, 7, 8 of the judgment in 2003 SCC (L&S) page 77, U.P. State Sugar Corporation Ltd. v. Om Prakash Upadhyay. (iv) Paragraph Nos. 4, 7, 8 and 9 of the judgment in 2005 (105) FLR Page 383 in Bank of Baroda v. Ghemarbahai Harjibhai Rabari. 52. Counsel for the workman submits that in the aforesaid cases the Court has upheld the awards of Labour Court as the order of termination of daily wager, casual, or temporary employee therein has been found to be illegal by it and has awarded relief of reinstatement with full back wages. 53. It is urged that when the termination of services of the workman in the instant case has been found to be illegal by the Labour Court and the employers were directed to reinstate him as regular employee then the workman being entitled to normal relief full back wages should have been awarded the same with other consequential benefits, hence that part of the award denying him the back wages is illegal and is liable to be quashed. 54. In the case of Samishta Dube (supra), the petitioner-appellant was appointed on the post of Typist/Clerk on 15.12.1987 by the City Board, Etawah. She raised an industrial dispute alleging illegal termination of services. The Labour Court in that case held that termination of her services could not be termed as invalid as the principle of “last come, first go” is to be applied even in the case of those employed on daily wages and, therefore, passed an order to the effect that since in case, the workmen junior to him were retained, he must be considered for regularisation by reappointment on the basis of her seniority. 55. 55. In the instant case, however, the workman has not pleaded anywhere that his juniors have been retained in service he has neither pleaded that termination of his services was illegal for violation of the principles of “first come, last go” nor has pleaded. The workman has also not pleaded anywhere the violation of Section 6-P read with Section 2(z) of the U.P. I.D. Act, 1947. For these reasons also, this case also does not help to the petitioner. 56. As regards the case of S.M. Nilajkar and others cited by Sri B.N. Singh learned counsel for the workman, the workman was appointed as a daily wager in a particular scheme or project and the Court held that this does not by itself amount to putting him on notice that he was engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment was liable to termination on the expiry of the contract and the scheme or project coming to an end. This case also does not help to the workman concerned as he was a daily wager engaged on day to day basis, according to the exigency of work and was not appointed under any scheme or project of specified duration. 57. In the case of U.P. State Sugar Corporation Ltd. v. Om Prakash Upadhyaya, the Court was faced with the question of repugnancy of two Sections of I.D. Act, 1947 and the U.P. I.D. Act, 1947 under Article 254 of the Constitution. In that case, the respondent was appointed as an apprentice for one year on monthly stipend of Rs. 300/- for getting training of General Clerk. When the period came to an end on 21.4.1989, the services of the workman came to an end co-extensively with it. The Labour Court in that case found that the respondent was initially appointed as an Apprentice for one year, his services were thereafter engaged not as an Apprentice under the Apprentices Act, and therefore, termination of his services amounted to retrenchment” under the U.P. Industrial Disputes Act. The Labour Court in that case found that the respondent was initially appointed as an Apprentice for one year, his services were thereafter engaged not as an Apprentice under the Apprentices Act, and therefore, termination of his services amounted to retrenchment” under the U.P. Industrial Disputes Act. The Labour Court held that the claim of the appellant that the termination of employment or engagement of service of the respondent in terms of Section 2(oo)(bb) of the provisions of the Central Industrial Disputes Act would not be attracted inasmuch as there was no provision akin to it in the U.P. Industrial Disputes Act. The Labour Court thus held that the termination of the services of the respondent is illegal and that he is entitled to reinstatement with continuity of service. The award made by the Labour Court in the aforesaid manner was challenged in a writ petition before the High Court. 58. The High Court by an interim order dated 10.10.1994 directed the workman to be taken back on the post on which he was employed and payment of current salary subject to the final orders in the writ petition. Taking into consideration Section 31 of the Industrial Disputes Act, 1947, which came into force from 29.8.1956 in the Central Act, the Court held that sub-section (1) of Section 31 makes it clear that the operation of the State Act will not be effected by the Central Act and in this view the High Court was justified in its view affirming the order of the Court below. 59. In the instant case, neither repugnancy of any Section of the Central Act is in question nor U.P. Industrial Disputes Act, 1947 is pleaded or argued, hence this case on its facts and circumstances of the case does not apply to the facts and circumstances of the instant case. 60. The facts of the case of Bank of Baroda v. Ghemarbhai Haribhai Rabari relied upon by the learned counsel for the workman are that the Court did not find any error in the award holding that the workman had been able to prove his continuous service of 240 days on the basis of payment slips produced by him. In the instant case, the workman has not been able to prove his continuous service of 240 days on the basis of any document except bald written statement and evidence. In the instant case, the workman has not been able to prove his continuous service of 240 days on the basis of any document except bald written statement and evidence. He did not make any efforts to summon or call for the records which may prove his continuous service of 240 days in the employer’s establishment. Per contra, the employers had pleaded and submitted documentary evidence alongwith their written statement to the effect that the workman has only worked intermittently for 163 days in their establishment during the span of period of 1 year and 9 months. This case is, therefore, also of no assistance to the workman and has to be decided in its own peculiar facts and circumstances. 61. After hearing the counsel for the parties and on perusal of record the following undisputed facts emerge. (i) The workman was engaged as Labourer on daily wages. (ii) He worked during the span of period 1.1.1988 to 31.8.1989. (iii) Chart showing actual number of working days of the workman was filed by the employer alongwith their written statement. (iv) Additional issue was decided in favour of the workman holding that reference was not bad in law. (v) The petitioners filed W.P. No. 23814 of 1993, State of U.P. v. Pawan Kumar against exparte order/award dated 17.3.1994 contending that documents filed by the petitioners were exhibited and the public documents did not require to be proved and ought to have been considered by the Labour Court while passing the impugned award. (vi) The award dated 17.4.1994 was also assailed that it was evident from record that workman had worked only for 163 days only and had not completed 240 days of continuous service in the establishment. (vii) The writ petition No. 23814 of 1993 was allowed “and award dated 17.3.1994 was set aside holding in view of the fact that evidence adduced by the employer and referred to in the impugned award at the earlier stage were on record. The same ought to have been considered. The vital consideration is whether the workman concerned is completed 240 days. The same ought to have been considered. The vital consideration is whether the workman concerned is completed 240 days. It is apparent that the employer had produced some muster roll documents and it was incumbent on the part of the Labour Court to consider the evidence already on record by the employer while passing the impugned award.” (viii) Recovery has been made by the workman from the date of the impugned award dated 23.4.1999 till interim order dated 16.4.2001 passed in the writ petition. (ix) The interim order aforesaid was clarified/modified from time to time making it subject to final decision in writ petition and that the workman is being paid Rs. 570/- per month as wages at present through he has drawn Rs. 3262/- per month for some time due to inadvertence of the parties in bringing the correct facts before the Court at the time of passing/clarification of order dated 27.3.2003. (x) The workman was reinstated in service in view of Section 17-B of the Industrial Disputes Act, 1947 on wages last drawn by him as per order dated 6.11.2003 passed by the High Court. 62. It is evident from record that the workman had in his written statement only pleaded the span of period during which he claims to have worked in the petitioner’s establishment and had filed Exhibit W-1 in support of his case. The actual number of days actually worked by him in the establishment was not proved by any documentary evidence by him. There appears to be only a bald averment in his written statement that he had worked for more than 240 days of continuous service in the span of period with effect from the date of his engagement i.e. 1.1.1988 to 31.8.1989. He also did not move any application for summoning the muster roll or any other record under the possession of the employer to prove his claim of actual working in the petitioner’s establishment. On the other hand, the employers filed chart/extract of working days of the workman from the muster roll alongwith their written statement, which is said to be a public document in writ petition No. 23814 of 1993. 63. None of the parties have filed copy of oral evidence of the workman before the Labour Court. On the other hand, the employers filed chart/extract of working days of the workman from the muster roll alongwith their written statement, which is said to be a public document in writ petition No. 23814 of 1993. 63. None of the parties have filed copy of oral evidence of the workman before the Labour Court. The rejoinder statement of the workman is not on affidavit, hence mere denial of the averments made by the employer in his written statement is contrary to the Rule 12 as aforesaid. 64. As noted above, it is an admitted fact that the employers had filed Civil Misc. Writ Petition No. 23814 of 1994, State v. Shrawan Kumar against exparte order dated 31.3.1992 contending that extract of muster rolls filed by them was public document which did not require proof and ought to have been considered by the Labour Court while passing the award. The workman in that writ petition did not dispute the contention of the employer. In fact the workman had not at all opposed the writ petition on the ground that extract of chart of muster roll submitted by the employer alongwith the writ petition was incorrect or could not be considered by the Labour Court for adjudication of the dispute. Rather, no efforts appears to have been made by the workman concerned that the said chart already on record showing actual number of working days was not a public documents and required proof. The position seems to be that the workman did not contradict the chart showing actual number of working days by any cogent documentary evidence except filing Ex.W-1 which only established the span of period of his working and not actual number of days worked by him in the establishment during period mentioned therein. He otherwise would have taken this plea and grounds in writ petition No. 23814 of 1993 filed by him. 65. Therefore, in view of the observation of the High Court that it was incumbent upon the Labour Court to consider the evidence already on record i.e. the extract of muster roll of the relevant period during which the workman claims to have worked with the employer while passing the impugned award. The contention of counsel for the respondent that said document could not be considered by the Labour Court as it was not proved by oral evidence cannot be sustained. The contention of counsel for the respondent that said document could not be considered by the Labour Court as it was not proved by oral evidence cannot be sustained. It is in the aforesaid context that directions were issued to the Labour Court while allowing writ petition No. 23814 of 1993 which has been appended as Annexure-5 to the writ petition. The relevant portion of the judgment dated 24.8.1998 is as under : “In view of the aforesaid findings this writ petition succeeds and is allowed. The impugned award dated 17.3.1994 at Annexure-4 to the writ petition is hereby set aside. Labour Court is directed to consider the matter on the basis of materials already on record taking into consideration all evidence and the arguments of both the sides. As the matter is very old one, such decision is to be taken within four months from the date of production of a certified copy of this order.” 66. The workman could also not have raised any point for the first time before this Court regarding admissibility of the chart in view of Rules 23 to 27 of the U.P. Industrial Disputes Rules of Procedure, 1957-67 for the simple reason that the workman did not dispute the chart of muster rolls as a public document in writ petition No. 23814 of 1993, and also for the reason that it was appended with the statement of the employer and not filed as a document separately with list of documents under the Rules requiring proof by oral evidence. 67. It was the workman concerned, who raised the industrial dispute, hence the burden of proof was upon him to discharge his onus that he had actually worked continuously for 240 days in 12 calendar months and therefore, the termination of his services was illegal for violation of provisions of Section 6-N of the U.P. I.D. Act, 1947 which he miserably failed to discharge. It is for the party to prove his case and discharge his burden and only thereafter the onus on the opposite party. 68. It is for the party to prove his case and discharge his burden and only thereafter the onus on the opposite party. 68. Admittedly also, the workman was engaged as a daily wager on need basis from time to time, hence he could not have been granted relief of reinstatement in service as a regular employee of the department as has been awarded by the impugned award and Sri B.N. Singh, learned counsel for the workman has fairly admitted it to be illegal to that extent. 69. Though the workman had tried to justify his claim for adjustment/absorption in the service in the vacancy caused due to retirement of Sri Manohar Lal subsequent to the filing of the writ petition by means of supplementary affidavits but it was nobody’s case before the Labour Court whose award is impugned that there was any sanctioned/vacant post on or against which the workman was entitled to be absorbed or regularized in the service of Government department under any rule or regulation or scheme of the Government providing for such an absorption or regularisation in service. 70. It is settled law that the provisions of U.P. Industrial Disputes Act, 1947 in respect of recruitment and appointment are excluded to the extent that the service conditions for appointment are governed by the rules of the Government. In view of the admitted fact that the workman himself claims to be a daily wager, the Labour Court could not have reinstated him in service as a regular employee by the impugned award as regularisation of service in the circumstances is to be governed by relevant rules. 71. In view of the admitted fact that the workman himself claims to be a daily wager, the Labour Court could not have reinstated him in service as a regular employee by the impugned award as regularisation of service in the circumstances is to be governed by relevant rules. 71. Note has also been taken of the statement of Sri B.N. Singh, learned counsel for the workman, who has conceded during the arguments that the operative portion of the impugned award of the Labour Court to the extent it directs reinstatement of the workman as regular employee is bad, therefore, the stand of the workman in his rejoinder statement before the Labour Court that he should have been regularized in service according to the provisions of the U.P. Industrial Disputes Act, 1947 cannot be acceded to for the reasons stated above and also for the reason that no provision of U.P. Industrial Disputes Act, 1947 has been placed by the workman before the Court which may provide regularisation of a daily wager, if he has completed 240 days of continuous service. 72. He prayed for regularisation before the Labour Court on the ground that provisions of the U.P. I.D. Act, 1947 provide for it but no such provision was pleaded or placed before the Court. 73. In this context the relevant findings of the Labour Court hereinafter may be referred to. 72. He prayed for regularisation before the Labour Court on the ground that provisions of the U.P. I.D. Act, 1947 provide for it but no such provision was pleaded or placed before the Court. 73. In this context the relevant findings of the Labour Court hereinafter may be referred to. ÞJfed dh vksj ls ,d dkxt ÁnkZ MCyw&1 nkf[ky fd;k x;k gS tks lgk;d vfHk;Urk }kjk fn;k x;kA Áek.k i= dh QksVk Áfr gS ftls Jfed ds vius kiFk dFku }kjk Áekf.kr fd;k gSA bl Áek.k i= esa mYys[k fd;k x;k gS fd Jo.k dqekj iq= Jh fdkksjh flag us vxLr 1988 ls 31 vxLr 1989 rd nSfud osru ij le;≤ ij dk;Z fd;kA mijksDr vof/k esa muds O;ogkj Hkh Bhd jgkA bl Áek.k i= ls ;g Árhr ugha gksrk fd Jo.k dqekj us vxLr 1988 ls 31-8-1988 rd yxkrkj dk;Z fd;k fdUrq bl Áek.k i= ds vuqlkj le;≤ ij dk;Z fd;k gSA lsok;kstdksa dk Hkh ;gh dguk gS fd mls vko;drkuqlkj ekyh dk dke gksus ij yxk fy;k tkrk gS vkSj fudky fn;k tkrk FkkA fdUrq bl Áys[k ls bruk vo; Áekf.kr gksrk gS fd Jfed Jo.k dqekj vxLr 1988 ls 31 vxLr 1989 rd ls lsok;kstdksa ds lEidZ esa jgkA Jfed us viuk kiFk c;ku fn;k gS fd ftlesa dgk gS fd eSaus 1-1-1988 ls 31-8-1989 rd yxkrkj dk;Z fd;k vkSj esjk dke fcYdqy lgh FkkA Jo.k dqekj ds bl kiFk dFku dks ekuus dk dksbZ vkSfpR; Árhr ugha gksrk tks fd u gh lk{; ls dksbZ ftjg gqbZ gS vkSj u gh mlds foijhr dksb lk{; ÁLrqr fd;k x;kA mYys[kuh; gS fd lsok;kstdksa }kjk eLVj dk rkj nkf[ky djds ;g Lohdkj fd;k x;k fd tqykbZ 1988 ls vÁSy 1988 rd 117 fnu dk dk;Z fd;k FkkA ;fn eSaus vxLr lu~ 1989 rd dk;Z fd;k gS tSlk fd Áek.k i= ÁnkZ MCyw&8 nkkZrk gS vkSj tuojh lu~ 1988 ls gh dk;Z djuk kq: dj fn;k gks tSlk fd Jfed ds kiFk dFku ls Li"V gS rks Jfed dk lsokdky 240 fnu ls vf/kd dk gks tkrk vkSj og kq: ls ÁfrLFkkfir gksus ;ksX; gSA lsok;kstdksa dh vksj ls kkldh; vf/koDrk }kjk ;g Hkh dgk x;k fd Jfed dks 240 fnu ,d o"kZ esa gh iwjk djuk pkfg, tcfd /kkjk 6&,u ds vUrxZr 12 vaxzsth ds eghuksa ds vUrxZr ;g dk;Z iwjk gksuk gh Á;kZIr gSA bl Ádkj vxLr 1988 ls vxLr 1989 rd Hkh 240 fnu dk;Z iwjk gks tkrk gS rks Jfed dks ugha fudkyk tk ldrkA nksuksa i{kksa dh vksj ls mijksDr lkf{k;ksa ds vfrfjDr dksbZ lk{; ugha ÁLrqr fd;k x;k u bafxr fd;k x;kA mijksDr rF;ksa ds vk/kkj ij eSa bl fu"d"kZ ij igq¡pkrk gw¡ fd Jfed Jh Jo.k dqekj dks lsok;kstdksa }kjk fnukad 1-9-1989 ls lsok ls i`Fkd djuk u mfpr Fkk u oS/kkfud Fkk rn~uqlkj bldk i`Fkdhdj.k fujLr gksus ;ksX; gS vkSj og iqu% lsok esa ÁfrLFkkfir gksus dk gdnkj gSA tgka rd losru ÁfrLFkkfir djus dk Áu gS ;g fufoZokn gS fd Jfed us fnukad 1-9-1989 ls lsok ugha dh vkSj viuk dk;Z ugha fd;k rks ml chp ds osru dk gdnkj Hkh ugha gSA vr% ;g vfHkfu.kZ; bl Ádkj fu.khZr fd;k tkrk gS fd Jfed Jo.k dqekj iqu% lsok esa ÁfrLFkkfir fd;k tk;s vkSj fu;fer :i ls j[kk tk,A Jfed Jo.k dqekj dh fnukad 1-9-1989 ls lsok lekfIr vuqfpr o voS/kkfud gSA ;g vfHkfu.kZ; rn~uqlkj fu.khZr fd;k tkrk gS vkSj Ádkku gsrq Hkstk tk,A g0@jfrjke tkVo ihBklhu vf/kdkjhAÞ 74. The contention of the counsel for the workman that the writ petition suffers from latches as there is 2 years delay in filing it and that the recovery is already said to have been made from the date of the award does not require much deliberation as Article 226 of the Constitution itself does not provide any limitation. Once a writ petition is admitted or is entertained and affidavits are exchanged it should normally be not thrown out on limitation but should be decided on merits. Any interim order is always subject to final decision as is always provided in the Court. The workman is getting vide order dated 6.3.2002 his last drawn wages as provided under Section 17-B of the Industrial Disputes Act, 1947 (Central) in terms of order dated 27.3.2003 on the modification application filed in the writ petition. 75. The workman in his written statement and rejoinder statement has averred that he was unemployed during the pendency of dispute before the Labour Court. This situation has occurred as he made no efforts to get work in order to mitigate his hardships. Why did he not do so when he was only a daily wager and had no security or job or any lien or right on any post in the employers establishment. This is what appears to be in the mind of the Labour Court when it held that the workman is not entitled to back wages when he did not work from 1.8.1989 after termination of his services. This appears to be sufficient and cogent reason for awarding back wages to him. The findings regarding back wages awarded by the Labour Court assailed by the workman in his connected writ petition may be seen. The certificate W-1 relied upon by the workman also does not falsify the stand of the employer as contended by the counsel for the workman. He does not get any benefit from the said certificate. It does not specifically show the actual number of days much less 240 days of continuous service in a year during the span of his working mentioned in the said certificate to establish violation of provisions of U.P. Industrial Disputes Act, 1947. 76. He does not get any benefit from the said certificate. It does not specifically show the actual number of days much less 240 days of continuous service in a year during the span of his working mentioned in the said certificate to establish violation of provisions of U.P. Industrial Disputes Act, 1947. 76. In this regard law settled by the Apex Court in Mohan Lal v. The Management of M/s. Bharat Electronics Ltd., AIR 1981 SC 1253 , may be referred to wherein it has been held that 240 days of continuous service is to be calculated counting backward from the date of termination of services, U.P. Industrial Disputes Act, 1947. It appears that the workman has worked intermittently for 163 days during his whole span of working and not 240 days of continuous service, therefore, it was incumbent upon him to establish that he was in continuous service which he has miserably failed to prove. 77. The subsequent events brought on record by the workman by application alongwith supplementary affidavits may now be considered wherein he has prayed for regularisation in place of one Manohar Lal, a retired employee on the ground that his junior has been regularized in service and a vacancy is available on the post on which Manohar Lal was working. 78. An adhoc or daily wage employee can discharge work of a permanent post but he has to be appointed in accordance with the Recruitment Rules for being in service of the Government unless he is absorbed or regularised in accordance with any provision in the rules, regulation or Government circular or provided in any scheme for this purpose. The workman has not brought to the notice of the Court any such provision by which a daily wager can be regularized in service of the establishment/Irrigation department in a vacancy caused by retirement of a regular employee. 79. Moreover, the averments made by the employer in paragraph 7 of the written statement has not been denied specifically in paragraph 7 of the rejoinder statement of the workman. 79. Moreover, the averments made by the employer in paragraph 7 of the written statement has not been denied specifically in paragraph 7 of the rejoinder statement of the workman. The denial is general that documents of the written statement of the employers are not admitted as they based on imagination which is no denial of specific averments by the employer in their para 7 of the written statement that total period in which the applicant worked daily wages is mentioned in the attached chart which may be treated as part of this written statement. The chart is an extract of muster rolls which are public documents and shows that the workman has worked only for 163 days during the period of his engagement claimed by the workman as given in Exhibit W-1 filed by the workman in support of his case. In the circumstances, the workman having denied the chart showing actual number of working days appended with the written statement of the employer in a general manner as based on imagination it was incumbent upon him to have rebutted the same by cogent oral and documentary evidence to prove specific number of actual days of working by him the period of engagement claimed by him. Therefore, to prove his case that that he had actually worked 240 days continuous service and not 163 days as shown in the chart of his actual working days submitted by the employer alongwith the written statement, he should have summoned the muster roll of his working by moving an application before the Labour Court. 80. In the case of Executive Engineer, State of Karnataka v. Soma Setty and others, (1997) 5 SCC 436 and Himansu Kumar Vidyarthi v. State of Bihar and others, (1997) 4 SC 560, it has been held that a daily wager has no right to the post and his disengagement is not arbitrary, hence he cannot raise any industrial dispute as daily wager for the benefits of permanent employee. A Constitution Bench of this Court in State of Karnataka v. Umadevi, (2006) 4 SCC 1 , opined as under : “43. A Constitution Bench of this Court in State of Karnataka v. Umadevi, (2006) 4 SCC 1 , opined as under : “43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of casual basis, the same would come to an end when it is discontinued.” 81. The aforesaid case was considered in the case of C. Balachandran and others v. State of Kerala and others, (2009) 3 SCC 179 and relying upon paragraph 15 of the judgment rendered in Punjab Water Supply & Sewerage Board v. Ranjodh Singh, (2007) 2 SCC 491 , the Apex Court dismissed the appeal. The operative portion of the judgment is thus : “For the reasons aforementioned, there is no merit in this appeal and the same is dismissed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs.” 82. Therefore, in view of the ratio laid down in C. Balachandran (supra) that regularisation cannot be a mode of recruitment, the Labour Court has committed an illegality for ordering regularisation of the workman concerned in service by the impugned award. Regularisation does not mean permanence. Recruitment must be in consonance with the principles of equality enshrined in Articles 14 and 16 of the Constitution. 83. The rulings cited by the workman in his favour do not strengthen his case as he having failed to prove before the Labour Court that he has actually worked 240 days continuously in the petitioner’ establishment and termination of his services was in violation of provisions of Section 6-N of the U.P. I.D. Act, 1947 not entitled to reinstatement in service. As regardes regularisation which the workman has sought by means of application alongwith supplementary affidavits in writ petition on the ground that his juniors have been regularized in service and a post of Class IV employee is vacant due to retirement of Sri Manohar Lal is concerned, it is for the department to look into the matter and pass appropriate orders in accordance with law. As stated earlier, the High Court cannot order regularisation of service of a daily wager as has been held in State of Punjab and others v. Sardara Singh, (1998) SCC 709. 84. In this backdrop the amount of salary taken by the workman as a regular employee from the date of the award pursuant to recovery certificate cannot be sustained in view of orders dated 6.3.2002 and 27.3.2002. Apart from the Standing Counsel representing the State it was also the duty of the counsel for the workman to have informed the Court that the workman was getting Rs. 570/- per month at the time of termination of his services and not Rs. 3262/- per month which pertained to wages of six workmen. The workman cannot get any benefit of Rules 23 to 27 of the U.P. Industrial Disputes Procedure of Rules, 1967 in the facts and circumstances of the present case as stated above for the reasons in the judgment rendered in Civil Misc. Writ Petition No. 23814 of 1993, State of U.P. v. Shrawan Kumar, by which the Labour Court was directed to consider all the documents on record which was not challenged in High Court or in this writ petition and therefore, the workman cannot be permitted to raise the same for the first time now at the time of argument. 85. For the reasons stated above, Writ Petition No. 14232 of 2001, State of U.P. through Executive Engineer Irrigation Division, Moradabad v. Presiding Officer, Labour Court Rampur is allowed, the impugned award dated 23.4.1999 is quashed and Writ Petition No. 8458 of 2001, Shrawan Kumar v. Presiding Officer, Labour Court and another, is accordingly, dismissed. 86. No order as to costs. ————