JUDGMENT 1. These petitions by employer are directed against an ex parte award/ judgment by the learned Judge, Labour Court, Chandrapur which he refused to set aside by rejecting the petitioner's application for setting aside exparte award. 2. The facts, which are material for deciding these petitions, are as under: The respondents in Writ Petition Nos.3997/2001 and 3998/2001 claimed to have joined services of the petitioner as unskilled labourers on 01.07.1988 and 01.02.1989, respectively. They claimed that their record was lean and unblemished and they had completed more than 240 days of continuous service. The respondents were getting wages of Rs.31.70 per day before their services were terminated on 11.09.1992 without any rhyme or reason and without following prescribed procedure, as also the provisions of Section 25-F of the Industrial Disputes Act. It was also contended that juniors were retained in service and thus, termination was illegal and improper. Since the employer did not pay heed to the request for reinstatement, the respondents-workmen approached the Assistant Commissioner of Labour for conciliation. The Assistant Commissioner made a reference to the Court upon failure of conciliation. 3. The petitioner admitted that the respondents-workmen were in service from the dates mentioned by them, but denied that they were in continuous service or had completed 240 days of continuous service prior to their ceasing to work. The petitioner denied that the services of the respondents-workmen were terminated w.e.f. 11.09.1992. According to the petitioner, the workmen were employed on temporary basis on availability of work and on completion of such work the services of the workmen were liable to be terminated. The petitioner, therefore, sought that the references should be answered in negative as untenable. It was also submitted by the petitioner/employer that the workmen has refused to accept the employment which had been offered by the petitioner. 4. The respondents-workmen tendered necessary evidence by examining themselves and submitted that they had worked for more than 240 days and that their juniors had been retained etc. However, no evidence was tendered on behalf of the petitioner/ employer. The learned Judge, Labour Court, therefore, by his award, held that the respondent-workmen were entitled to reinstatement with continuity of service and full back wages from 11th September, 1992 on their original posts. 5. These awards were questioned by the petitioner by approaching the Industrial Court. However, no evidence was tendered on behalf of the petitioner/ employer. The learned Judge, Labour Court, therefore, by his award, held that the respondent-workmen were entitled to reinstatement with continuity of service and full back wages from 11th September, 1992 on their original posts. 5. These awards were questioned by the petitioner by approaching the Industrial Court. The Industrial Court rejected the proceedings taken out by the petitioner and therefore, the petitioner approached this Court by filing Writ Petition Nos.3718/1998 and.3719/ 1998. Both these petitions were allowed to be withdrawn since the petitioners wanted to have recourse to the provisions of sub-rule (2) of Rule 26 of the Industrial Disputes (Bombay) Rules, 1957. These petitions were, therefore, disposed of on 14th July, 1999. Thereafter on 29th September, 2000 the petitioner approached the learned Judge, Labour Court by filing application under Rule 26(2) of the Industrial Disputes (Bombay) Rules, 1957 for permission to contest the case. These applications were rejected by common order dated 18.07.2001 passed by the learned Judge, Labour Court, which is impugned by these petitions. It appears that, in the mean time, the proceedings for recovery had been initiated and recovery certificate had been issued. Therefore, the petitioner also sought quashing and setting aside of the said recovery certificates and recovery proceedings. 6. I have heard learned counsel for the petitioner/employer as well as respondents-workmen. 7. The learned counsel for the petitioner submitted that the respondent-workmen had not at all completed 240 days and therefore, were not entitled to be treated as workmen to be retrenched. He submitted, first, that respondent were casual labourers, employed by the department from time to time as and when work was available and secondly, that there was no retrenchment since the petitioner was willing to provide work to the respondents, but they themselves remained absent. He pointed out that even the workmen had admitted that there were some technical breaks in their employment and therefore, assailed the conclusion drawn by the learned Judge, Labour Court that the respondents had completed 240 days of continuous service. 8. The learned counsel for the respondents-workmen submitted that the petitioner had not disputed that the respondent-workmen, in both the petitions, had been employed from the dates mentioned by them i.e. from 01.07.1988 and 01.02.1989, respectively. 8. The learned counsel for the respondents-workmen submitted that the petitioner had not disputed that the respondent-workmen, in both the petitions, had been employed from the dates mentioned by them i.e. from 01.07.1988 and 01.02.1989, respectively. He pointed out that the written statements filed by the petitioners before the Labour Court show that the work had come to an end on 31st August, 1992. Thus, according to the learned counsel, the respondents-workmen's claim that their services were orally terminated on 11.09.1992 cannot be termed as 'figment of imagination'. In the written statement the petitioners had claimed that they had called the respondents to office and offered work at Panchgaon, Kotbala or Bhatala, which the respondents declined. According to the learned counsel for the respondents, apm1 from falsity of the claim that any such work was offered, after the work on which the respondents were employed came to an end in September, 1992, the petitioner-employer had admitted that the work was available, albeit at different site. He submitted that if the work was available, there could be no question of respondents being denied opportunity to work. He pointed out that the offer of work, on which the petitioner relies, is an afterthought and was not made till the Conciliation Officer made a reference to the Labour Court on 18.11.1993. 9. The learned counsel for the petitioner submitted that the respondents/workmen had admitted that letter dated 24.01.1994 was received by one Ramkrushna Pund, who was union leader. Presuming that this letter contained an offer of work, it is clear that the offer was made on 24.01.1994 i.e. after the workmen had appeared before the Labour Court and filed their statements of claim on 12th and 21stJanuary, 1994, respectively. Further, even according to the learned counsel for the petitioner, the letter was addressed to one Ramkrushna Pund and not to the respondent-workmen. Therefore, the learned counsel for the respondents must be held to be right in submitting that the offer was an afterthought and was rightly ignored by the learned Judge Labour Court. 10. There can be no doubt that the burden to prove that the workmen had completed 240 days of work is on the workmen as held by the Supreme Court in Surendranagar Distt. Panchayat Vs. Gangaben Laljibhai, reported at 2006(III) LLJ 320 : [2006(5) ALL MR (S.C.) 46]. 10. There can be no doubt that the burden to prove that the workmen had completed 240 days of work is on the workmen as held by the Supreme Court in Surendranagar Distt. Panchayat Vs. Gangaben Laljibhai, reported at 2006(III) LLJ 320 : [2006(5) ALL MR (S.C.) 46]. However, in this case, the claim of the workman was supported by the workman by stepping into the witness box and deposing that he had put in such service. This claim was not repudiated or disproved by tendering any evidence by the petitioners. The learned counsel for the respondent/workman pointed out that the evidence of respondent was over in February, 1996 and for 18 months thereafter reference was adjourned from to time for petitioner's evidence. Therefore, he submitted that it was rightly held by the learned Judge, Labour Court that the petitioners had proved that they were in employment for 240 days. 11. The learned counsel for the respondents, relying on a judgment of Division Bench of this Court in ANZ Grindlays Bank Ltd. Vs. ANZ G. Bank Emp. Union & anr., reported at 1998(II) CLR 192, submitted that the claim of workmen that they had worked for 240 days had to be accepted and adverse inference had to be drawn for failure of the employer to produce register of employees. 12. The net result is that the petitioner failed to show that the respondents had not worked for 240 days in a year. The evidence of respondents in this behalf had not been countered by the petitioner by examining any witness or tendering any documents before the Labour Court. In any case, according to the learned counsel for the respondents, the question before this Court is not whether the learned Judge, Labour Court was right in passing his ex-parte award but whether he was wrong in refusing to set it aside by refusing to invoke sub-rule (2) of Rule 26 of the Industrial Disputes (Bombay) Rules. 13. The learned counsel for the petitioner also submitted that both the respondents i.e. Suryabhan Baghu Khadsang and Bapurao Nathuji Barde had admitted in their cross-examination that the work of construction of road, on which they had worked, was done under the Employment Guarantee Scheme. Therefore, according to the learned counsel for the petitioner, since the respondents were employed on E.G.S., they were not entitled to claim continuation. Therefore, according to the learned counsel for the petitioner, since the respondents were employed on E.G.S., they were not entitled to claim continuation. As rightly pointed out by the learned counsel for the respondents, it was not the petitioner's case .that the respondents were employed under Employment Guarantee Scheme. The statement of claim filed by the petitioner does not make such a claim. Secondly, the petitioner pas itself taken a stand that the work was available and offered it to the respondents are it was the respondents who had abandoned the said work. Therefore, it is not open to the petitioner to contend that the respondents are not liable to be provided with employment on the basis of a stray sentence in the cross-examination of an uneducated labourer. 14. On petitioner's own reckoning, after closure of work on which the respondents were employed, work was available and offered to the respondents. Thus, the petitioner cannot take advantage of non-availability of work to justify the termination of the respondents. Rather, it is the case of the petitioner that they never terminated the services of the respondents and that the respondents had themselves remained absent suo motu. This contention was rightly rejected by the learned Judge, Labour Court, since the petitioner had failed to show that the work was offered immediately after the work, on which the respondents were employed, came to an end on 13.08.1992. On the other hand, the attempt of the petitioner to address letter to one Ramkrushna Pund on 24.01.1994, after the reference was made to the Labour Court, would create a doubt about bona-fides of the claims made by the petitioners about the offer of work at alternate site. In view of this, as a fact, the findings of the learned Judge, Labour Court that the petitioners had denied work to the respondents, though it was available, without complying with the provisions of Section 25-F of the Industrial Disputes Act (since to such claim of compliance to provisions of Section 25-F was made) cannot be assailed. 15. The learned counsel for the respondents submitted and rightly in my view that a Division Bench of Delhi High Court in Anil Soon & ors. Vs. S. K. Saruaria & ors., reported at 1997(II) CLR 119 held that after a award of Labour Court was published there would be no question of making an application for setting aside exparte award. The learned counsel for the respondents submitted and rightly in my view that a Division Bench of Delhi High Court in Anil Soon & ors. Vs. S. K. Saruaria & ors., reported at 1997(II) CLR 119 held that after a award of Labour Court was published there would be no question of making an application for setting aside exparte award. Therefore, he submitted that after the award was published an application under Rule 26 could not have been entertained. 16. The learned counsel for the petitioner submitted that the petitioner is a government department and therefore, an opportunity of tendering necessary evidence should have been given to the petitioner. He submitted that the learned Judge, Labour Court should have been seen in these circumstances that the exparte award ought to have been set aside under sub-rule (2) of Rule 26. The learned Judge, Labour Court had rejected the application under Rule 26(2) of the Industrial Disputes (Bombay) Rules holding that the Court could not have entertained the application for setting aside the award after thirty days from receipt of the award by the parties concerned, and had become functus officio. The learned Judge found that the petitioner was aware of the award and had received its copy and had preferred an appeal before the Industrial Court which had been dismissed by the Industrial Court and thereafter the petitioner had approached this Court. Thus, if it wanted to avail of the benefit of the provisions of Rule 26 of the Industrial Disputes (Bombay) Rules the petitioner ought to have applied within thirty days as required by rule. The learned counsel relied on a judgment of this Court in Harrai Desai and sons Vs. Leelavati, reported at 2000(3) Mh.L.J. 540 . He submitted that in view of this judgment the Labour Court or Tribunal does not become functus officio till such application is decided and the limitation will commence from the date of receipt of copy of award and not from the date of publication of such award. In that case, the petitioner employer had come to know of the award only from the letter of the Union on 12.12.1988 and had filed application under Rule 26 on 29.12.1988 though award was dated 05.05.1988. As rightly pointed out by the learned counsel for the respondent workmen, such is not the present case. In that case, the petitioner employer had come to know of the award only from the letter of the Union on 12.12.1988 and had filed application under Rule 26 on 29.12.1988 though award was dated 05.05.1988. As rightly pointed out by the learned counsel for the respondent workmen, such is not the present case. In this case, award had come to the knowledge of the petitioner, in any case, before 10th September, 1997 when, according to the petitioner, it had approached the Industrial Court. It could not be said that the time spent in filing an appeal before the Industrial Court or writ petition before this Court could have been considered by the learned Judge, Labour Court while entertaining the application under Rule 26, since, having chosen the remedy of preferring an appeal, the petitioner could not have been permitted to go back and seek setting aside of award under Rule 26. 17. The learned counsel for the petitioners submitted that the petitioner withdrew the previous petitions because it was, in fact, decided that the parties would fight on merits. There is nothing in the orders passed by this Court to show that any such concession was made by workmen in the petitions which were disposed of by this Court. 18. Reliance by the learned counsel for the petitioner on a judgment of the Supreme Court in State of U.P. & anr. Vs. Atal Behari Shastri & anr., reported at 1992 II CLR 833, judgment of P & H High Court in Laxmi Kant Vs. P.O. LT. Cum. L.C. & Anr., reported at 1999(I) LLJ 238 and that of this Court in Standard Motor Union Vs. Shakuntala P. Shene & anr., reported at 2000(I) CLR 812 is misplaced, since in the cases at hand the petitioner had itself admitted that the work had come to an end on 13.08.1992 and is not shown to have offered alternate work immediately thereafter. Attempt to show that an offer was made has been already considered in the foregoing discussion, and. only after the respondents filed their statements of claim upon a reference to the Labour Court did the petitioner post a letter offering work to one Pund who was said to be union leader. 19. The learned counsel for the petitioner next submitted that there was absolutely no warrant for the learned Judge. Labour Court to order payment of full back wages. 19. The learned counsel for the petitioner next submitted that there was absolutely no warrant for the learned Judge. Labour Court to order payment of full back wages. He submitted that this Court had held time and again, as also in D.T. Arts & Com. College Vs. Macchindra, reported at 2009(2) Mh.L.J. 182 held that the burden to prove that he was not gainfully employed was on the workman, which burden the workman had not discharged. According to the petitioner, respondent Bapurao Natthuji Barde was working on daily wages in Gram Pane hay at, Tembhurda from March, 1994 till 9th June, 2000 and that certificate to this effect had been obtained from the said Gram Panchayat which is annexed as Annexure-10 in the petitions. The learned counsel for the respondent/workman submitted that the respondents had categorically stated that they had not been able to secure any job and could not earn a single pie. From paragraph 7 of their statement of claim it may be seen that the petitioner had responded to this plea in the statement of claim filed by the workmen by stating that the workmen were working with same cultivator and no plea that any workman was working with Gram Panchayat was raised. The learned counsel for the respondent/workmen submitted that this certificate of the Gram Panchayat had not been proved and that this Court could not go into the disputed question of fact. In my view, it would not be appropriate to hold that one of the respondents is working in the Gram Panchayat on the basis of the certificate produced in this petition and which is not shown to have been tendered before the Labour Court. 20. Reliance by the learned counsel for the petitioner on my judgment in Writ Petition No.3590 of 1999 (Chief Executive Officer, Zilla Parishad, Nagpur Vs. Raibhan Ramchandra Nagrare), decided on 29th June, 2009 or judgment of Hon'ble Shri. Justice B.P. Dharmadhikari in Writ Petition Nos.3386/1994 and Writ Petition No.3178/1994, decided on 18th January, 2007, is misplaced since they are rendered in the context of facts peculiar to those cases. 21. In view of this, it cannot be said that the learned Judge, Labour Court erred in refusing to set aside his ex parte award and rejecting petitioner's application under Rule 26 of the Industrial Disputes (Bombay) Rules, 1957. The petitions are, therefore, dismissed. Petitions dismissed.