JUDGMENT : Ravi R. Tripathi, J. Petitioner – workman, who joined as 'Chokidar' since 15/03/1998, came to be terminated on 01/04/2000, approached the Labour Court by way Reference (LCJ) No. 20 of 2001. The said reference came to be rejected by the learned Judge of the Labour Court, Jamnagar by award and order dated 20/02/2008. The impugned award and order is challenged by filing petition on 27/04/2011. The petition is opposed on various grounds, one of them is 'delay'. 2. The High Court issued notice on 06/05/2011 returnable on 20/07/2011. The Deputy Executive Engineer, Panchayat, R & B Sub Division, Dwarka filed affidavit-in-reply affirmed on 27/06/2011 wherein the issue of 'delay' is raised. It is after hearing the learned Advocate for the parties the Court issued Rule on 12/08/2011. The Court taking into consideration the nature of dispute involved in the matter ordered that the matter be listed for final hearing on 06/09/2011. Today, the matter is notified for final hearing. Learned Advocate for the petitioner requested that the matter be taken up for final hearing as the petitioner – workman is out of job since 01/04/2000. 3. Learned Advocate for the petitioner invited attention of the Court to the award and order passed by the learned Judge of the Labour Court. The learned Judge has set out the case of the workman in paragraph No.2. The learned Judge has referred to 'statement of claim' (Exh.3) wherein petitioner – workman has stated that, 'he was serving in a Rest House under the control of respondent Nos.1 and 2 (District Development Officer, Jamnagar and Deputy Executive Engineer) since 15/03/1988 and he had worked for 240 days in a year'; that since 01/04/2000 his services were discontinued and he was rendered unemployed; that 'he was neither given any notice, notice pay or retrenchment compensation'; that Rest House at Kalyanpur (Dwarka) is still running and the work of 'Chokidar' is also in existence; that after discontinuing service of the petitioner – workman, person who came later, is employed and thus there is violation of provisions of Industrial Disputes Act; that petitioner had served a notice on 21/09/2006, which was produced before the learned Judge of the Labour Court at Mark 8/1 for reinstating him in service, but no reply was given by the respondent and he was not reinstated. 3.1 The petitioner – workman had produced documents at Mark 8/1 to 8/5, wherein Mark 8/1 is the notice / application asking for reinstatement; Mark 8/2 is the acknowledgement receipt indicating the receipt of the said notice by the respondent and Mark 8/5 is the list dated 23/07/2000 of casual labourers and part time labourers, who were discontinued. 3.2 The statement of claim was replied by the respondent by filing a joint reply by respondent Nos.1 and 2. The respondents contested the contents of statement of claim saying that, the same are not true; that the application is not legal and bona fide; that the Hon'ble Court (Labour Court) has no jurisdiction to hear the matter; that there is no cause of action for filing the reference before the Labour Court; that respondents have not committed breach of any of the provisions of the ID Act; that application filed by the workman is not in proper format; that the application is liable to be dismissed on account of mis-joinder of parties; that the application is barred by principles of res judicata; that the petitioner was not appointed by respondent No.2, but was appointed on 'local basis' as per the requirement at the rest house; that the applicant was employed as 'Chokidar' on the basis of requirement for the same; that he was never given any continuous or regular appointment; that he was not given any order of appointment in writing appointing him as regular employee; that he was always employed on a condition that his services will be discontinued at any time and therefore the petitioner-workman was not entitled to any notice, notice pay or retrenchment compensation; that on a permanent employee coming to Kalyanpur Rest House, 'daily wager temporary employee' was discontinued; that as per the Government Resolution as a part of 'economy drive', the services of the 'temporary daily wager' were discontinued and therefore there is no question of reinstatement of the petitioner-workman; that there is no post in the 'set up' and therefore there is no question of reinstating the petitioner – workman; that petitioner – workman was paid for the period for which he worked and for this reason the petitioner – workman is not entitled to any relief asked for in the statement of claim. 3.3 In paragraph No.5 of the award and order the learned Judge has referred to an application filed by the petitioner – workman being Exh. 12 whereby the workman had asked for certain documents on which the predecessor of the learned Judge had passed an order of 'either to reply or comply'. This application Exh. 12 was replied by the respondents by Exh. 15. The learned Judge has then referred to the documents produced by the petitioner – workman at Mark 16/1 to 16/13. 3.4 In paragraph No.16 of the award, the learned Judge has referred to those 13 documents. Thereafter, the learned Judge has referred to the depositions of the petitioner – workman being Exh. 16. Petitioner was cross-examined by the learned Advocate appearing for the respondent (establishment). By Exh. 18 petitioner-workman declared that no further evidence is to be led. The respondent examined a witness by Exh. 22 who was cross-examined by the representative of the petitioner – workman. By Exh. 23 respondent filed a closure pursis stating that no other oral evidence is to be led. 3.5 By Exh. 25 written arguments on behalf of the petitioner – workman were filed wherein the contents of 'statement of claim' were reiterated and it was stated that the contents of the 'statement of claim' are proved by the oral and documentary evidence whereas the respondent (establishment) has not proved its defence by producing any written document; the respondent (establishment) has not disproved the continuous working of the petitioner – workman for 240 days; the petitioner – workman was appointed with the approval of the Higher Officer, the appointment of the petitioner was according to Rules. It was pleaded on behalf of the petitioner – workman that as Exh. 12 was filed by the petitioner – workman asking for production of documents which were important for proving the case of the petitioner – workman and though these documents were in possession of the respondent, the same are not produced deliberately and as the petitioner – workman has produced the documents by Exh. 16 from which it is clear that petitioner – workman had worked for 240 days with the respondent. The reason set out for discontinuing the service of the petitioner – workman in reply to the 'statement of claim' and the reasons stated by the witnesses examined by the respondents are contrary to each other. 16 from which it is clear that petitioner – workman had worked for 240 days with the respondent. The reason set out for discontinuing the service of the petitioner – workman in reply to the 'statement of claim' and the reasons stated by the witnesses examined by the respondents are contrary to each other. Though, it is stated by the respondent that the work performed by the petitioner – workman is taken from the permanent employee, the respondents have not given the name of that permanent employee or no document in support of this submission is produced by the respondent. 3.6 As against that the witness of the respondent has conceded on all important points in his cross-examination regarding the action of the respondent of discontinuing the service of the petitioner – workman violative of provisions of Section 25 (F), (G), (H) and (J) of the Industrial Disputes Act and hence the petitioner – workman is entitled to reinstatement with continuity of service and full back wages. In support of this contention decision of this Hon'ble Court reported in 2005 GLH 340 in the matter of Gujarat State v. Jitendra M. Raval is relied upon. 4. In paragraph No. 10 of the award the learned Judge has considered the submissions made by the learned Advocate, Shri S. K. Sanghani for the respondents wherein the emphasis was laid on written statement, written documents and the deposition of the witness of the respondents. The learned Advocate submitted that it is for the petitioner – workman to prove the contents of the statement of claim and as the applicant is not able to prove the same, reference is liable to be rejected at the preliminary stage. It is also submitted by the learned Advocate that the appointment of the petitioner – workman was not made by respondent No. 2 (Deputy Executive Engineer), the appointment was given at the 'Local Level' (this 'local level' is nowhere explained by the respondents). It is also contended that the petitioner – workman was employed as per the requirement; he was never given any continuous and regular appointment as a permanent employee therefore he was not given an appointment in writing. He was engaged on condition that, 'his service will be liable to be discontinued at any time'. It is also contended that the petitioner – workman was employed as per the requirement; he was never given any continuous and regular appointment as a permanent employee therefore he was not given an appointment in writing. He was engaged on condition that, 'his service will be liable to be discontinued at any time'. It is also argued that, 'on a permanent employee coming to Kalyanpur Rest House, service of 'daily wager part time employee' were discontinued. As per Government Resolution, the services of the petitioner – workman was discontinued as a part of 'economy drive' (no such Government Resolution is produced by the respondent). The petitioner – workman was not appointed on regular post of the set up and therefore the petitioner – workman is not entitled for any benefits. The petitioner – workman was appointed at the 'local level' on absolute part time basis as a 'daily wager chokidar' by oral order. Petitioner – workman did not appear before any Selection Committee for interview. He did not take any training for being a skilled worker. As per the repeated instructions from the Government as a part of 'economy drive' there being no requirement for additional work of daily wager, the petitioner – workman was discontinued. The petitioner – workman has accepted the aforesaid facts in his cross-examination. The aforesaid facts are proved by the witness of the respondents by the documentary evidence and his oral deposition. The petitioner – workman was not appointed on a permanent post following the recruitment procedure. The petitioner – workman is not entitled to get any benefit of the provisions of the ID Act. If the workman is reinstated that will amount to back door entry and that will be in violation of the Constitution of India. No relief as prayed for by the petitioner – workman can be granted. It was also argued that the Hon'ble the Apex Court and various High Courts have held that if an appointment is made without following the recruitment procedure, no relief can be granted to such workman because if such workman is reinstated the candidates possessing the requisite qualification will stand deprived which amounts to violation of Constitution of India and hence no relief can be granted to such workman under the provisions of the ID Act. It was submitted that the petitioner – workman is not entitled to any relief prayed for in the 'statement of claim' and hence the reference be rejected. 5. The learned Judge of the Labour Court framed 'issues' for determination. The learned Judge held in 'negative' that the action of the respondent of discontinuing the service of the petitioner – workman since 01/04/2000 is unreasonable, illegal and violative of principles of natural justice and in violation of the provisions of the ID Act. The learned Judge has also answered second issue in 'negative' saying that the petitioner – workman is not entitled to reinstatement at his original post with continuity of service with back wages. 6. Learned Advocate, Mr. Dave, for the petitioner invited attention of the Court to the reasoning part of the award and order wherein the learned Judge has considered rival submissions of both the parties. Learned Advocate rightly invited attention of the Court to discussion wherein the learned Judge has referred to the documents produced at Mark 16/1 to 16/3 - the 'attendance registers' from 15/03/1988 to 31/03/2000 showing the number of days worked by the petitioner – workman in every year. The learned Judge has summarised the number of days the petitioner had worked in the respective period. The learned Judge has recorded a clear finding that the petitioner did work from March – 1988 to April, 2000. For ready reference, those details are produced herein below: Sr. No. Period Number of Days 1 April, 1988 to March, 1989 291 2 April, 1989 to March, 1990 268 3 April, 1990 to March, 1991 329 4 April, 1991 to March, 1992 327 5 April, 1992 to March, 1993 248 6 April, 1993 to March, 1994 69 7 April, 1994 to March, 1995 190 8 April, 1995 to March, 1996 207 9 April, 1996 to March, 1997 228 10 April, 1997 to March, 1998 228 11 April, 1998 to March, 1999 228 12 April, 1999 to March, 2000 217 6.1 All these documents are produced by the petitioner – workman during his deposition on oath and it is very important and also relevant that all these documents do contain signatures of the responsible Officer of respondent No. 2. It is on the basis of these documents the learned Judge has recorded finding that, 'there is no dispute about the petitioner having worked according to these documents with the respondent'. 6.2 The learned Judge has then considered the question of 'appointment' having been given to the petitioner – workman by respondent No.1. The learned Judge has recorded that this fact was required to be proved by the petitioner – workman but he is not able to produce any written document to prove this fact. The learned Judge has then considered that, 'this fact is supported by the petitioner – workman by his deposition on oath' to which the respondents replied by saying that, 'the petitioner was not appointed by respondent No.2 but was engaged in rest house as a daily wager as per the requirement at 'local level'. 6.3 At this stage, it is important to note that the learned Judge has missed that the respondents did not spell out this 'local level' anywhere. The learned Judge has misdirected himself by observing that, 'the facts mentioned in the reply filed by the respondents are not proved to be wrong by the petitioner – workman by producing any written documents'. 6.4 This observation has resulted into miscarriage of justice. The petitioner – workman came before the Labour Court with a specific case that, 'he was working with respondent since 15/03/1988 and his services came to be discontinued on 01/04/2000'. He produced the documents at Mark 8/1 to 8/5 then he filed application Exh. 12 calling upon the respondent to produce relevant documents. Though these documents were in possession of the respondents, same are not produced on a flimsy ground that the petitioner has not set out as to what is the relevancy of these documents and that the petitioner – workman must prove his case on the basis of documents available with him. This is not the law on the subject. One can understand if a document is in possession of the workman, and it is not produced, then it can be said that, 'the petitioner – workman did not prove his case'. But when the documents are in possession of the respondents and an application is filed requesting the Court to direct the respondents to produce those documents, that application is replied by Exh. But when the documents are in possession of the respondents and an application is filed requesting the Court to direct the respondents to produce those documents, that application is replied by Exh. 15, that reply on the face of it found to be evasive then, the learned Judge of the Labour Court ought to have directed the respondents to produce all those documents. 6.5 The learned Judge has brushed aside the submission made by the representative of the petitioner – workman that, 'in absence of respondents producing the documents asked for by the petitioner-workman, the learned Judge should hold the case of the petitioner – workman as proved'. The learned Judge has stated that, 'I do not agree with the arguments of the petitioner – workman'. The only reason given for this observation is that, 'the facts set out in statement of claim are to be primarily proved by oral as well as documentary evidence produced by the petitioner – workman'. As discussed herein above, this would have been the position if the petitioner – workman had failed to file Exh. 12 application, but in the case on hand petitioner – workman did file an application and that application was replied by Exh. 15, which as observed herein above was evasive. In light of these circumstances the learned Judge ought to have directed the respondent to produce those documents or should have held that petitioner is able to prove his case. 6.6 The learned Judge of the Labour Court has then observed that, 'he does not agree to the submission made by the representative of the petitioner – workman that if the documents asked for are not produced by the respondent then an adverse inference is to be drawn in favour of the petitioner – workman'. Here, the learned Judge of the Labour Court mentioned that there is a decision of the Hon'ble the Apex Court that only if documents are asked for and if they are not produced only for that reason adverse inference cannot be drawn. But, no citation is mentioned. But, then learned Advocate, for respondents invited attention of the Court to a decision of the Hon'ble Apex Court in the matter of 'Surendranagar District Panchayat v. Dahyabhai Amarsinh reported in 2005 (8) SCC 750 ' wherein the Hon'ble Apex Court had occasion to observe as under: Paragraph No. 18 of that decision reads as under: “18. But, then learned Advocate, for respondents invited attention of the Court to a decision of the Hon'ble Apex Court in the matter of 'Surendranagar District Panchayat v. Dahyabhai Amarsinh reported in 2005 (8) SCC 750 ' wherein the Hon'ble Apex Court had occasion to observe as under: Paragraph No. 18 of that decision reads as under: “18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards noncompliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved.” (emphasis supplied) Dated 7-9-2011 : 6.7 From the bare reading of the aforesaid paragraph No. 18, it is clear that this decision has no application to the facts of the present case. In the present case the workman did produce the muster rolls as stated herein above. He thus proved that he had worked for more than 240 days in number of years. On the contrary, this is a clear case of victimisation of the petitioner – workman because the authorities having come to know that the petitioner – workman had worked for 291 days in 1988-89; 268 days in 1989-90; 329 days in 1990-91; 327 days in 1991-92; and 248 days in 1992-93, the petitioner was not given work so as to see that he does not complete 240 days in the year from 1993-94 to 1999-2000. The only inference which can be drawn is that it was only with a view to see that petitioner – workman does not cross the 'magic figure of 240 days'. The only inference which can be drawn is that it was only with a view to see that petitioner – workman does not cross the 'magic figure of 240 days'. 6.8 The case before the Hon'ble Apex Court was altogether different, where the workman could not produce any material as the Hon'ble Apex Court has noted that, 'What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days.' By no exercise of stretching the facts, the aforesaid ratio can be made applicable to the facts of the present case. 7. Learned Advocate for the respondents relied upon a decision of the Hon'ble the Apex Court in the matter of 'M.P. State Agro Industries Development Corpn. Ltd., & Anr. v. S C Pandey, reported in 2006 SCC (L&S) 434' and relied upon the Head Note-A and D, which reads as under : “A. Casual labour/Temporary employee-Status of-Right to regularisation, if any ,on completion of 240 days' continuous service – Held, only because a temporary employee completes said period of service, that by itself would not confer any legal right upon him to be regularised in service – Regularisation. D. Casual labour/Temporary employee – Daily wager – Status of – Held, a daily-wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and therefore he does not derive any legal right.” 7.1 Learned Advocate for the respondents laid emphasis on paragraph Nos. 17 and 22 of the said judgment of the Hon'ble the Apex Court, which read as under : “17. The question raised in this appeal is now covered by a decision of this Court in M. P. Housing Board & Anr. 17 and 22 of the said judgment of the Hon'ble the Apex Court, which read as under : “17. The question raised in this appeal is now covered by a decision of this Court in M. P. Housing Board & Anr. v. Manoj Srivastava (Civil Appeal arising out of SLP (Civil) No. 27360/04 disposed of this date) wherein this Court clearly opined that: (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) Only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularised in service; (4) If an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof. 22. Such appointments, in our opinion, having regarding to the decisions in Mahendra Lal Jain (supra) and Manoj Srivastava (supra) must be made in accordance with extant rules and regulations. It is also a well settled legal position that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularised in service. Otherwise also the legal position in this behalf is clear as would appear from the decision of this Court in Dhampur Sugar Mills Ltd. v. Bhola Singh [ (2005) 2 SCC 470 ] apart from Mahendra Lal Jain (supra).” 7.2 In the considered opinion of this Court this decision will also have no application to the facts of the present case because nature of the duty discharged by the petitioner – workman was of 'Chokidar' so it was not 'in exact terms' an appointment of a casual worker who incidentally required to work and could complete 240 days. From the very nature of the work, it was of perennial nature and that is the case of the respondent also. From the very nature of the work, it was of perennial nature and that is the case of the respondent also. It is the case of the respondent that as regularly appointed employee is now available, the services of the petitioner – workman were discontinued. It is also the case of the respondent that in light of the 'economy' measures for which instructions are issued by Government from time to time, that the services of the petitioner – workman were discontinued. This shows that it was not a case of some work being taken by the department from the petitioner – workman utilising his service as a casual labourer. The work was of perennial nature. He was given appointment, may be branded to be a 'daily wager' but that was only because respondent wanted that no right accrues in favour of the petitioner – workman. This is nothing but a camouflage and therefore the Court has to remove that camouflage and appreciate the 'nature of work' taken from the petitioner – workman. It is in light of these facts, this decision is not applicable to the present case. 8. Taking into consideration the aforesaid discussion, this Court is of the opinion that the learned Judge has committed an error in not granting any relief to the petitioner – workman though the findings recorded by the learned Judge are in favour of the petitioner – workman. 8.1 It is really painful that 'State or its limbs' do not honour the cardinal principles of Labour Laws and commit breach of the same by employing tactics not approved by law to deprive the persons like petitioner – workman of the benefits flowing from such cardinal principles of Labour laws. 8.2 The respondents (establishment) ought to have appreciated that the petitioner – workman was working since 1988 and continued to work upto 2000 i.e. more than a decade, out of that for five years he had worked for more than 240 days; in another five years he worked for more than 200 days except in the year 1993-94 he was allowed to work for 69 days and in the year 1994-95 for 190 days. 8.3 That being so, the non-grant of any relief to such workman will amount to mockery of justice and therefore the impugned award and order dated 20/02/2008 is quashed and set aside. 8.3 That being so, the non-grant of any relief to such workman will amount to mockery of justice and therefore the impugned award and order dated 20/02/2008 is quashed and set aside. The petitioner – workman is ordered to be reinstated at his original post with continuity of service. 9. Now the question arises as to whether the petitioner be granted 'back wages' and, if yes, to what extent. 9.1. Learned Advocate for the respondents submitted that though the services of the petitioner-workman were discontinued in the year 2000, the reference was filed in the year 2001 which came to be decided on 20/02/2008 and present petition is filed only on 27/04/2011. Learned Advocate for the respondent submitted that for a long period of three years he did not take recourse to the remedy against the said award and order and therefore at least for that period of three years petitioner – workman is not entitled to back wages. 9.2 The submission is well founded and therefore while awarding the back wages, this period is to be excluded as there cannot be any dispute on the same. So far as remaining period is concerned, that will be from 2000 to 2008 and petitioner – workman is required to be paid the back wages may be not 100% but then some reasonable amount. 9.3 The learned Judge of the Labour Court has not focused his attention to this aspect because he was of the opinion that no reinstatement is required to be granted and therefore question of back wages did not arise for his consideration. 10. Taking into consideration the fact that service of the petitioner-workman was not discontinued in accordance with law and he was not granted the benefits flowing from the provisions of the Labour Laws, this Court is of the opinion that awarding 25% back wages will be appropriate. Accordingly, it is ordered that petitioner – workman be reinstated at his original post with continuity of service with 25% of back wages for the period commencing from the date of termination to the date of award, as early as possibly, preferably by 10-10-2011. 11. Rule is made absolute with no order as to costs. Petition allowed.