Judgment Heard both sides. 2. W.P.No.26636 of 2005 is filed by the Alandur Municipality represented by it Commissioner against the award of the second respondent Labour Court in I.D.No.996 of 1992 dated 05.01.2005. By the impugned award, the second respondent Labour Court directed reinstatement of the first respondent with continuity of service, full backwages and all other attendant benefits. Aggrieved by the said award, the petitioner Municipality has filed the present writ petition. 3. On 20.08.2005, this Court granted an order of stay of the operation of the award on condition that the petitioner/Municipality deposits the entire backwages as awarded by the Labour Court within a period of four weeks, failing which the interim stay granted will stand automatically vacated. The petitioner/Municipality did not comply with the conditional order. Thereafter, the first respondent/Workman filed a miscellaneous petition seeking for payment of monthly wages in terms of Section 17(b) of the I.D.Act. This Court by an order dated 03.04.2006 directed the petitioner to pay Rs.900/-from 05.01.2005, which the first respondent is getting till date. 4. In the meanwhile, since there is no stay against the operation of the award, the first respondent also filed a complaint to prosecute the petitioner Municipality under Section 29 of the I.D.Act. The complaint was filed before the Assistant Commissioner of Labour who ordered notice to the Municipality. The Municipality, thereafter filed an application to modify the award by filing another miscellaneous petition, which was also rejected by this Court on 211. 2008. Since there was no stay of the award granted by this Court, the Municipality by its meeting held on 30.06.2009 decided to fill up the post of 5 Drivers from the Sanitary Workers employed by the Municipality and also to entrust to the TEXCO, the sponsoring of two Drivers by outsourcing the said work. 5. The first respondent/workman filed a writ petition in W.P.No.15691 of 2009 seeking for enforcement of the award and also to consider his case for the post of Driver in the existing vacancy. The said writ petition was directed to be heard along with the previous writ petition filed by the Municipality. 6. Mr.P.Srinivas, learned counsel for the Municipality contended that the award of the Labour Court suffers from material irregularity and legally not sustainable. The said writ petition was directed to be heard along with the previous writ petition filed by the Municipality. 6. Mr.P.Srinivas, learned counsel for the Municipality contended that the award of the Labour Court suffers from material irregularity and legally not sustainable. Before the Labour Court, the Municipality filed N.M.R. Register for the period from 01.01.91 to 15.01.91, 17.02.91 to 28.02.91 and 01.03.91 to 15.03.91 and they were marked as Exs.M4 to M6 respectively. The register shows that the Workman was employed under the Jawaharlal Nehru Employment Scheme on daily wages of Rs.25/- and that too only for 15 days in respective months. But the Labour Court without any justification, disbelieved the entries found therein and it held that the worker has proved that he has worked for 240 days in a year preceding to oral termination. Since the Workman was not paid notice pay of wages, there is a clear violation of Section 25F of the I.D.Act. Thereafter, referring to the judgment of the Supreme Court in H.D.Singh vs. Reserve Bank of India reported in 1985 LAB.I.C. 1733, the Labour Court directed the reinstatement of the workman with full backwages as noted above. 7. Even before the second round of litigation, when the Labour Court granted the relief by its earlier award dated 31.03.1997, the Municipality challenges the same before this Court in W.P.No.18501 of 1997 and this Court by an order dated 110. 2004 allowed the writ petition. In paragraphs 6 and 7, this Court observed as follows: "6. When a person claims that he was continuously worked for a particular period the burden is only on him to prove that he worked continuously. Admittedly, Ex.P1 was an order of appointment as a driver only for a period fo three months. Therefore, it has to be presumed that he was terminated at the end of month, unless there is an another order appointing him in service. In the absence of any such document, it cannot be presumed that he worked continuously after three months. It is true that Exs.P1 and P3 relates to beginning of the year 1992. According to the respondent, he worked under different scheme called Nehru Employment Scheme which was a temporary work carried on by the Municipality only on certain specific purpose. Therefore,that cannot be considered as employment by the Municipality. It is true that Exs.P1 and P3 relates to beginning of the year 1992. According to the respondent, he worked under different scheme called Nehru Employment Scheme which was a temporary work carried on by the Municipality only on certain specific purpose. Therefore,that cannot be considered as employment by the Municipality. Though several contentions have been raised by the respondent, the respondent has not proved that he worked under Nehru Employment Scheme. It has been pointed out in the Award of the Labour Court, neither the petitioner nor the respondent have proved their case. 7.Under these circumstances, the Award of the Labour Court has to be set aside and hence it is set aside. Considering the facts and circumstances of the case, the matter is remitted back to the Labour Court so that to give a fresh finding on the evidence that may be adduced by both. The petitioner and the respondent are at liberty to adduce any fresh evidence and the Labour Court shall decide the issue by considering such evidence. In view of the long age of the Industrial Dispute, the Labour Court shall dispose of the matter within three months from this date." 8. The contention raised by the Municipality are two fold: The first contention was that the Municipality in the teeth of the documentary evidence placed before the Court, it did not appreciate the same. On the contrary put the burden on the Municipality to prove that the workman did not work for 240 days. The second contention was even if the workman proves that he has worked for 240 days and Section 25F was not complied with, the workman cannot be reinstated as a matter of right. If at all, he can be only restored as daily waged worker which work he was doing earlier. 9. In this context, it is necessary to refer to the judgment of the Supreme Court in R.M.Yellatti v. The Assistant Executive Engineer reported in AIR 2006 SC 355. The Supreme Court in that case held that the provisions of the Evidence Act in terms do not apply to the proceedings before the Labour Court but the burden whether the workman has worked 240 days or not can be proved by summoning the document and the workman also getting into the box to give evidence. In the present case, the workmans evidence was believed by the Labour Court. In the present case, the workmans evidence was believed by the Labour Court. But the Labour Court disbelieved the register produced by the Municipality. In the case cited above, the Supreme Court in paragraph 13 observed as follows: "13. ... If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact." 10. To the question of relief, in paragraph 15, the Supreme Court gave the following relief: "15. ... We set aside the impugned judgment of the division bench dated 9. 2000 and we restore the award of the labour court dated 210. 1999 in I.D.REference NO.59/97. The name of the appellant will be restored as a daily wager in the nominal muster roll." 11. Therefore, there is no scope to disturb the award passed by the Labour Court especially the Labour Court has directed reinstatement with backwages. But at the same time, since the first respondent was in receipt of the monthly payment under section 17(b) of the I.D.Act, this Court is not inclined to grant any further wages which may be available in terms of the impugned award. 12. On the contrary, the award is confirmed only to the extent of his reinstatement. With reference to the backwages whatever amount already paid by way of 17(b) will be final payment to be given to the worker. However, with reference to the direction that he should be considered for the post of Driver, which is claimed in the subsequent writ petition filed by the workman in W.P.No.15691 of 2009 is concerned, it must be stated that once it is held that he has been retrieved even after completing 240 days without complying with the provisions of Section 25F of the I.D.Act, he is also eligible for any reemployment under Section 25H of the I.D.Act. 13. 13. In the present case, the workman has proved that he has been employed for 240 days and his oral termination was in violation of Section 25F. The respondents in their council meeting held on 30.06.2009 admitted that there were vacancies of Drivers and the sanitary workers are being considered for such posts. It is also the fact that the workman is having a license and in the earlier occasions he was made work as lorry driver on daily wages. In the fitness of things, he should be considered against the regular post of driver in terms of Section 25H of the I.D.Act. 14. This Court vide its judgment in K.Kumaran and Others v. State of Tamilnadu, represented by its Secretary reported in (2007) 3 MLJ 233 has held that in case the workman seeks for reemployment in terms of Section 25-H of the I.D.Act, he should first establish before the Labour Court that he is eligible for such a relief. In paragraph 37 of the said judgment, it has been held as follows: "37. In view of the dispute over their claim, the said employees will have to approach the appropriate Labour Court to establish the total number of days worked by them and that their subsequent non-employment and their claim preference for re-employment was guaranteed under Section 25-H of the I.D.Act. It is for them to prove to the satisfaction of the Labour Court that they were actually retrenched in terms of the main definition under Section 2(oo) of the I.D Act and not covered by the exception found under sub-section (bb) of Section 2(oo) of the I.D.Act." 15. In the light of the same, the first writ petition (W.P.No.26636 of 2005) stands dismissed with the above directions. 16. With reference to backwages, the second writ petition (W.P.No.15691 of 2009) is allowed to the limited extent that the petitioner shall be considered against the post of Driver in view of his right of re-employment under Section 25H of the I.D.Act. This exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. But however, before even considering his case for regular employment as Driver, he shall stand restored to the post of Driver as directed by the Labour Court in its award impugned in the writ petition. No costs.