JUDGMENT : Mukesh R. Shah, J. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to quash and set aside the impugned judgment and Award passed by the learned Presiding Officer, Labour Court, Ahmedabad dated 21/11/2005 passed in Reference (LCA) No. 1361 of 1993 by which the learned Labour Court has partly allowed the said reference directing the petitioner herein - first party No. 2 to reinstate the respondent workman to his original post with continuity of service but with 50% back wages. 2. Facts leading to the present Special Civil Application in nutshell are as under:- 2.1. That the respondent herein raised an industrial dispute challenging his alleged termination w.e.f. 3/5.2.1993 by the petitioner before the Assistant Labour Commissioner, Ahmedabad. That the dispute was referred for adjudication to the Labour Court, Ahmedabad which was numbered as Reference (LCA) No. 1361 of 1993. That the respondent workman filed his Statement of Claim alleging inter-alia that his termination w.e.f. 3/2/1993 is absolutely illegal and in breach of Section 25F is absolutely illegal and in breach of section 25(F) of the Industrial Disputes Act. It is required to be noted that in the Statement of Claim and even before the Assistant Labour Commissioner, only first party No. 1 Kalpsaru Ice Cream Private Limited was joined as a party. However, subsequently, the petitioner herein first party No. 2 Vadilal Ice Cream was joined as party. It was the case on behalf of the petitioner workman that his services have been terminated w.e.f. 3/2/1993 without following due procedure as required under the Industrial Disputes Act, more particularly section 25(F) of the Industrial Disputes Act and without making payment of any retrenchment compensation. It was the case on behalf of the respondent workman that he has completed not less than 240 days in the last preceding year. 2.2. The reference was opposed by the petitioner by submitting that as such the respondent was appointed on purely temporary basis as Junior Draftsman by order dated 6/2/1992 and he resumed the duty as such on the said post w.e.f. 8/3/1992. 2.2. The reference was opposed by the petitioner by submitting that as such the respondent was appointed on purely temporary basis as Junior Draftsman by order dated 6/2/1992 and he resumed the duty as such on the said post w.e.f. 8/3/1992. It was also the case on behalf of the petitioner that thereafter as the project work was over and the services of the respondent workman was not required, after making payment of the retrenchment compensation considering the period for which he worked with the petitioner, his services were terminated. Therefore, it was submitted that there is no breach of section 25(F) of the Industrial Disputes Act, as alleged. That thereafter solely and mainly on the basis that the respondent worked with the petitioner for 11 months, including the holidays etc. the learned Labour Court has held that the respondent workman has worked for more than 240 days and therefore, there is a breach of section 25(F) of the Industrial Disputes Act and therefore, by the impugned judgment and award, the learned Labour Court has partly allowed the said reference holding and declaring the termination of the respondent workman by the petitioner w.e.f. 5/2/1993 as illegal and in breach of section 25(F) of the Industrial Disputes Act and consequently by the impugned judgment and award the learned Labour Court has directed the petitioner first party No. 2 to reinstate the respondent workman on his original post with continuity of service but with 50% back wages. 2.3. Feeling aggrieved by and dissatisfied with the impugned judgment and award passed by the learned Labour Court, petitioner herein original first party No. 2 has preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.Kunan Naik, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned Labour Court has materially erred in holding that there is breach of section 25(F) of the Industrial Disputes Act and consequently has materially erred in directing the petitioner to reinstate the respondent workman with continuity of service but with 50% back wages. 3.1. Mr.Kunan Naik, learned advocate appearing on behalf of the petitioner has further submitted that as such the learned Labour Court has materially erred in holding that the respondent workman had worked for 240 days with the petitioner. 3.1. Mr.Kunan Naik, learned advocate appearing on behalf of the petitioner has further submitted that as such the learned Labour Court has materially erred in holding that the respondent workman had worked for 240 days with the petitioner. It is submitted that as such no evidence was led by the respondent workman to prove that he had completed not less than 240 days in the last preceding year. 3.2. Mr.Kunan Naik, learned advocate appearing on behalf of the petitioner has further submitted that as such and even as per the case of the respondent workman, he was working with the original first party No. 1 - Kalpshru Ice Cream Private Limited which came to be closed and thereafter the respondent workman was appointed afresh with the petitioner as Junior Draftsman by order dated 6/2/1992. It is submitted that after the respondent workman was relieved by the Kalpshru Ice Cream Private Limited as the same was closed and thereafter the respondent was appointed with the petitioner as Junior Draftsman in the month of March, 1992, the period for which the respondent workman worked with the said Kalpshru Ice Cream Private Limited can be counted for the service rendered by the respondent with the petitioner. It is submitted that thereafter the respondent workman has not led any evidence whatsoever to prove that he had worked with the petitioner for not less than 240 days in the last preceding year. It is submitted that therefore the finding recorded by the learned Labour Court that the respondent workman had worked with the petitioner for more than 240 days is not supported by any evidence on record. It is submitted that therefore, the learned Labour Court has materially erred in holding that there is a breach of section 25(F) of the Industrial Disputes Act. 3.3. Mr. Kunan Naik, learned advocate appearing on behalf of the petitioner has further submitted that even while terminating the services of the respondent by the petitioner w.e.f. 5/2/1993, the petitioner did paid retrenchment compensation to the respondent workman considering the period for which he worked with the petitioner. It is submitted that the aforesaid aspect has not been considered and/or dealt with by the learned Labour Court at all. It is submitted that the aforesaid aspect has not been considered and/or dealt with by the learned Labour Court at all. It is submitted that therefore, the finding recorded by the learned Labour Court that there is breach of section 25(F) of the Industrial Disputes Act and the impugned judgment and order passed by the learned Labour Court deserves to be quashed and set aside. Making above submissions, it is requested to allow the present Special Civil Application. 4. Mr. Gadhvi, learned advocate appearing on behalf of the respondent workman has tried to support the impugned judgment and Award passed by the learned Labour Court. It is submitted that in the facts and circumstances of the case, the labour court has not committed any error in holding that the respondent workman worked with the petitioner for more than 240 days and consequently, no error has been committed by the learned Labour Court in holding that there is breach of section 25(F) of the Industrial Disputes Act. It is submitted that therefore, when it was found on appreciation of evidence that the respondent workman had worked with the petitioner for more than 240 days (considering the fact that Kalpshru Ice Cream Private Limited and Vadilal Ice Cream both were under the same management and the respondent workman also worked with the Kalpshru Ice Cream Private Limited), no error has been committed by the learned Labour Court in holding that there is breach of section 25(F) of the Industrial Disputes Act and that therefore, the learned Labour Court has not committed any error in directing the petitioner to reinstate the respondent workman with continuity of service with 50% back wages. 4.1. Mr. Gadhvi, learned advocate appearing on behalf of the respondent workman has further submitted that the impugned judgment and award passed by the learned Labour Court is just and proper and the finding recorded by the learned Labour Court is on appreciation of evidence and the same is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Making above submissions, it is requested to dismiss the present Special Civil Application. 5. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned judgment and award passed by the learned Labour Court. 5.1. Making above submissions, it is requested to dismiss the present Special Civil Application. 5. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned judgment and award passed by the learned Labour Court. 5.1. At the outset, it is required to be noted that by the impugned judgment and award the learned Labour Court has held the termination of he respondent workman by the petitioner w.e.f. 3/5.2.1993 as illegal and in breach of section 25(F) of the Industrial Disputes Act and consequently the learned Labour Court has directed the petitioner - original first party No. 2 to reinstate the respondent workman. 5.2. However, it is required to be noted and even it is admitted position that the respondent workman had worked with the original party No. 1 - Kalpshru Ice Cream Private Limited for some time. It is also not in dispute that thereafter the aforesaid Kalpshru Ice Cream Private Limited came to be closed. That thereafter, the respondent was appointed afresh by the petitioner - Vadilal Ice Cream vide letter dated 6/3/1992 as Junior Draftsman. That the respondent was appointed as Junior Draftsman w.e.f. 8/3/1992. That the services of the respondent has been terminated on and from 3/5.2.1993. That the learned Labour Court has held that the respondent workman has worked for more than 240 days and therefore, there is breach of section 25(F) of the Industrial Disputes Act and therefore, there is beach of section 25(F) of the Industrial Disputes Act. However, it is required to be noted the finding recorded by the learned Labour Court that the respondent workman had worked for more than 240 days with the petitioner is not supported by any evidence. No evidence worth the name has been produced by the respondent workman in support of his case that the respondent workman that the respondent workman has worked with the petitioner for not less than 240 days in the last preceding year. It cannot be disputed that the initial burden to prove that the respondent workman has worked for not less than 240 days in the last preceding year is upon the respondent workman which the respondent workman has failed to performed. It cannot be disputed that the initial burden to prove that the respondent workman has worked for not less than 240 days in the last preceding year is upon the respondent workman which the respondent workman has failed to performed. Under the circumstances, as such the finding recorded by the learned Labour Court that the respondent workman had worked for not else than 240 days in the last preceding year is based on no evidence and the same cannot be sustained. Even otherwise, the learned Labour Court has materially erred in holding that there is breach of section 25(F) of the Industrial Disputes Act. Even otherwise, the learned Labour Court has materially erred in holding that there is breach of section 25(F) of the Industrial Disputes Act. It is required to be noted that it was specific case on behalf of the petitioner - first party No. 2 that he worked with the petitioner for the period from 8/3/1992 to 3/2/1993 and thereafter his services were terminated after following due procedure i.e. after making payment of retrenchment compensation considering the period for which he worked with the petitioner. The aforesaid has not been dealt with by the Labour Court at all. If the petitioner terminated the service of the respondent after the payment of retrenchment compensation considering the period for which he worked with the petitioner, it cannot be said that the termination of the respondent on and from 3/5.2.1993 was in breach of section 25(F) of the Industrial Disputes Act. 5.3. At this stage, it is required to be noted that even the initially the respondent workman joined the original first party No. 1 - Kalpshru Ice Cream Private Limited only and petitioner herein was joined as a first party No. 2. 5.4. Under the circumstances, the impugned judgment and award passed by the learned Labour Court cannot be sustained and the same deserves to be set aside. 5.5. In view of the above and for the reasons stated above, the impugned petition succeeds. The impugned judgment and Order passed by the learned Presiding Officer, Labour Court, Ahmedabad dated 21/11/2005 passed in Reference (LCA) No. 1361 of 1993 is hereby quashed and set aside. 5.5. In view of the above and for the reasons stated above, the impugned petition succeeds. The impugned judgment and Order passed by the learned Presiding Officer, Labour Court, Ahmedabad dated 21/11/2005 passed in Reference (LCA) No. 1361 of 1993 is hereby quashed and set aside. At this stage it is required to be noted that earlier when the present petition was taken up for final hearing, it was stated by the learned advocate appearing on behalf of the petitioner that during the pendency of the present petition, the matter has been settled and the respondent workman was paid the amount of Rs. 90,000/-, however, as the settlement was not reduced in writing and the respondent workman had not given any further information/intimation to his advocate, with the consent of the learned advocate appearing on behalf of the respective parties, this Court has taken up this petition for final hearing. In view of the above, while allowing the present Special Civil Application and quashing and setting aside the impugned judgment and award of reinstatement with 50% back wages, it is observed that if any settlement had taken place between the parties and if any amount is paid to the workman, present judgment and order shall not affect the settlement, if any. With this present Special Civil Application is allowed to the aforesaid extent. Rule is made absolute accordingly.