JUDGMENT : N.V. Anjaria, J. 1. By filing the present petition, the petitioner-Bhavnagar District Panchayat has called in question judgment and award dated 04.03.2014 passed by Labour Court, Bhavnagar, whereby the Labour Court partially allowed the reference of the workman being Reference (LCB) No. 244 of 2002. The Labour Court held the action of termination of services of the respondent-workman bad in law and illegal and directed reinstatement of the respondent with 75% backwages treating the services continuous from 01.04.2002. The respondent-Pallaviben T. Patel was employed in the office of respondent No. 2 Deputy Executive Engineer, Panchayat Road and Building Sub-Division, Palitana, functioning under respondent No. 1-Executive Engineer, Panchayat Road and Building Department, Division No. 1, District Panchayat, Bhavnagar. It was her case in the Statement of Claim at Exh. 5 before the Labour Court that she had been discharging services by doing the work of typing, accounting vouchers and preparing other statements from 04.05.1993 continuously. It was her case that she was being paid daily wage of Rs. 70/- and it was the grievance that the same was the payment below the minimum wages and/or no other benefits were extended. The workman stated that the employer was not making available identity card or salary register or register of presence and though the work which she was performing was permanent in nature, she was not being given the benefit of permanency. It was her case that when she requested to give such benefits, she was then deprived of salary for the months from October 2001 and March 2002 by the employer. As per the case of the workman, it accordingly finally led to termination with effect from 01.04.2002 by oral order of respondent No. 2 authority. The respondent stated before the Labour Court that on 03.06.2002, she requested in writing to reinstate her, but in vain. 1.1 The first party employer-the petitioner filed reply and contended that the workman was employed on temporary basis and was called for work as and when required. It was stated that the workman had filed Recovery Application No. 89 of 2002, claiming salary and other benefits and filing of reference in question was to exert a pressure. It was the case of the employer that the workman did not come on duty after August 1998. It was also contended that from July 1998, the work was not available. It was the case of the employer that the workman did not come on duty after August 1998. It was also contended that from July 1998, the work was not available. The employer denied that it had terminated the services with effect from 01.04.2002. 1.2 It was the case of the workman that her presence was regularly recorded by the employer in the presence register kept for rojamdar. She had asserted that she worked continuously since the date of entry, that is, 04.05.1993 till 01.04.2002, and that her work was of permanent kind. It was contended that the employer was not giving any proof or document such as presence card, pay-slip etc. All the documents, from which the details of services could be ascertained, were in the custody of the employer. It was therefore that the workman filed production application Exh. 9 before the Labour Court. 2. The Labour Court proceeded to decide the dispute between the parties on the basis of evidence before it. The workman produced her documentary evidence along with list at Exh.8 and at Exh.18 to Exh.20. It appears that by filing Exh. 9 application, the workman gave notice to the employer for production of documents. Below the said application, the Labour Court passed order dated 01.03.2007 requiring the first party to produce documents. On behalf of the first party employer, a witness was examined at Exh. 95. 2.1 In support of the case that she had worked continuously from October 2000 to March 2002, she produced document Exh. 38 being the page Nos. 33,49, 50 to 65, 67 to 70 and 74 of the register of presence and it was claimed by the workman that the said documents contained her own hand-writing. Similar documents were produced at Exh. 37 and it was claimed that they were also part of register of presence signed by her. The aforesaid documents were claimed by the workman to be in her own hand-writing. Similar documents produced in Recovery Application No. 89 of 2002 filed by the workman were also in the hand-writing of the workman. All those documents came to be sent to the handwriting expert for examination during the reference by the Labour Court. 2.2 Notably, the application to send the said documents to the hand-writing expert was moved by the employer at Exh. 99. The Labour Court passed order dated 09.08.2012 below Exh. All those documents came to be sent to the handwriting expert for examination during the reference by the Labour Court. 2.2 Notably, the application to send the said documents to the hand-writing expert was moved by the employer at Exh. 99. The Labour Court passed order dated 09.08.2012 below Exh. 99 application sending documentary evidence produced by the workman for handwriting expert's opinion. It was the assertion of the workman that she worked from October 2000 to March 2002 and which fact was reflected in the said documents which again were in her own hand-writing. 3. Learned advocate Mr. H.S. Munshaw for the petitioner submitted that the work provided to the workman was purely temporary. She was engaged on daily rated basis for doing miscellaneous work of typing as per the administrative requirements with effect from 04.05.1993. According to his submission, there was no sanctioned post and the engagement of the workman was without following the procedure. He submitted that the workman failed to prima facie show that she had rendered continuous service for 240 days for the relevant period. He therefore submitted that the reinstatement granted by the Labour Court was uncalled for. It was next submitted that the Labour Court could not have granted reinstatement after passage of long time. As far as grant of backwages is concerned, learned advocate for the applicant seriously assailed the said aspect to submit that granting of 75% backwages was a bounty offered to the workman. It was submitted that inference drawn by the Labour Court was not permissible from the state of evidence on record. 3.1 On the other hand, learned advocate Mr. Biren Vaishnav for the respondent submitted that the breach of Section 25F of the Industrial Disputes Act, 1947 was cogently established before the Labour Court. He submitted that the workman not only showed her case prima facie by discharging initial burden, her case and claim about having rendered services upto March 2002 was clearly proved from the documents produced by her at Exhs.23 to 30, Exhs.32 to 54 and those documents which were produced in Recovery Application No. 89 of 2002. 3.2 Learned advocate for the respondent-workman produced certified copy of the relevant papers forming part of the record of the Labour Court for perusal of the Court which included the aforesaid application Exh. 3.2 Learned advocate for the respondent-workman produced certified copy of the relevant papers forming part of the record of the Labour Court for perusal of the Court which included the aforesaid application Exh. 99, order passed by the court there-below as well as opinion of the hand-writing expert received thereafter. The opinion of the hand-writing expert under the authority of Directorate of Forensic Science was placed before the Labour Court, wherein the handwriting expert opined that the specimen Gujarati in loose sheets were of respondent-workman. The Labour Court relied on the opinion of hand-writing expert and held that the case of the workman that she rendered continuous service, was duly established. Learned advocate for the respondent submitted that in the facts and circumstances of the case, not only the Court was justified in drawing adverse inference, but the workman could be said to have discharged her burden of proof and what was shown by her with regard to her service could not be dislodged by the employer. Learned advocate for the respondent relied on decision in R.M. Yallati v. Assistant Executive Engineer (AIR 2006 SC 355). He relied on for the said proposition another decision in M/s. Shriram Industrial Enterprises Limited v. Mahaksingh ( AIR 2007 SC 1370 ). 4. It is true that where the workman asserts that she has completed 240 days and thus, rendered "continuous service", it is for her to discharge the burden to prove the said fact. However, it is a well settled evidentiary principle that the burden of proof is not a static phenomenon. Once the burden of proof is discharged initially by a party ascertaining the fact, the same would shift on to travel to become onus on the other side. At what stage of evidence or upon what amount of evidence or with which extent of evidence, the burden is to shift to become onus, would depend upon facts and circumstances of each case. The nature of fact asserted, the nature of issue with regard to which the evidence is being adduced, the law applicable, the status of the party and the class of the party could be said to be amongst the relevant factors as to at what juncture, a party could be said to have discharged the initial burden of proof in eye of law to make it shift on the other side. 4.1 In the realm of industrial law, the rival parties are ordinarily employer and employee. Both belong to unequal status socially and economically; the relationship is the master and servant. By virtue of the very nature of their capacity and status, they belong to different classes not comparable. The employer could be said to be enjoying a dominative position with higher bargaining power. This holds true more particularly when the employee's status is temporary or daily rated. It is often that the employer practices a policy of hire and fire or pick and choose; does not maintain proper record of service of their employees deliberately, or keeps within his custody and control the documentary details about service, its nature and the period of service of such employees as Rojamdars. Therefore, when a workman belonging to such crippled class approaches the Labour Court or Industrial Tribunal as the case may be, agitating for his rights and asserting his case that he rendered services for particular number of years without interruption, he may be unable to produce documentary evidence relating to his service for want of availability of service record with him or due to other debilitating factors. 4.2 The rules of discharge of burden of proof for such class of employees as Rojamdars litigating for their rights against the mighty employer, deserve to be legitimately relaxed without discarding to basic principle of requirement of the discharging initial burden to prove the fact pleaded of his case. The reinforcing principle herein is that the provisions of Evidence Act do not apply strictly to the proceedings under Section 10 of the Industrial Disputes Act, however general principle of evidence do apply. 4.3 In R.M. Yellatti (AIR 2006 SC 355) (supra), while stating that the burden of proof was on the claimant-workman to show that he had worked for 240 days in a given year and mere affidavit or self-serving statements of the workman would not be sufficient, the Supreme Court held that the workman was able to discharge initial burden for proving his case and the Court upheld the finding of breach of Section25F and the workman was reinstated with 50% backwages. The Court held thus, "Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. The Court held thus, "Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the afore-stated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In case of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt of proof or payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wages register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits of self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster roll per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to drawn an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case." (paragraph 17) 4.4 In M/s. Shriram Industrial Enterprises Limited ( AIR 2007 SC 1370 ) (supra), it was held that the workman could prove his continuous service of 240 days by producing whatever documents were with him. It was held that by not producing the attendant register and muster-roll by the employer, the employer withheld the best evidence and that in such circumstances, is entitled to draw adverse presumption against the employer. It was held that by not producing the attendant register and muster-roll by the employer, the employer withheld the best evidence and that in such circumstances, is entitled to draw adverse presumption against the employer. 4.5 In yet another case in Director, Fisheries Terminal Division v. Bhikhubhai Meghjibhai Chavda ( AIR 2010 SC 1236 ), the Apex Court ruled on the similar lines. The facts in that case before the Apex Court were that for the activities of the Fisheries Terminal Department-appellant which consisted of providing landing facilities for catching fish in a clean and hygienic condition, the services of daily rated workmen were utilized as and when the same was needed. The workman, respondent herein was accordingly engaged on daily wage basis for the work as and when needed. By order dated 17.10.1988, the State Government and all its departments were directed to discontinue the services of engaging the daily rated workmen and in lieu, to hire labourers on contractual basis. The services of the workman who was employed in the year 1986 and worked till 1988, came to be terminated. The stand of the appellant-Fisheries Department was that during those years, the workman had worked for 93 days, 145 days and 131 days respectively and thus, did not work for 240 days or more. It was also a plea raised that the appellant was a seasonal industry, hence, Section 25F of the Industrial Disputes Act was not attracted. The Supreme Court held with regard to the principle of burden of proof to be discharged by the workman that since the workman was hired on daily basis, he would have difficulty in having access to all official documents, muster-rolls in connection with his service. It was held that when the workman claimed and deposed that he worked for 240 days, the burden of proof shifted to the employer to prove otherwise. 4.5.1 The Supreme Court discussing the evidence stated, "The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, in spite of the direction issued by the Labour Court to produce the same." "Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988," 4.6 In Municipal Corporation, Faridabad v. Shrinivas ( 2004 8 SCC 195 ) : ( AIR 2004 SC 4681 ), it was a principle stated, that a court of law even in a case where provisions of the Indian Evidence Act applies, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contention, but the matter would be different where despite direction of the court, the evidence is withheld. 4.7 The position of law emerging from the above decision is that where an employee having status of daily-rated workman gives his evidence to prima facie satisfy the Court on the basis of some evidence led or produced by him and asserts about having served for certain years and about completion of continuous service of 240 days during the relevant period, and raises a plea that details of his services were not available or were not given to him, they being under the control and custody of the employer, calls upon the employer by giving notice or production of the relevant documents, and still the employer fails to produce such documents asked for, it would be permissible for the Court to draw an adverse inference against the employer first to accept the case of the workman. 4.8 The aforesaid principle regarding drawing of adverse inference when despite called upon, the employer fails to produce the relevant service record of the workman who has discharged his initial burden by leading prima facie evidence in support of his case, came to be reiterated by this Court also in the following decisions, i) Executive Engineer (Stores) R. and B. Division, Ahmedabad and Anr. v. Harsham M. Jani ( 2007 (3) GLR 1858 ) ii) Principal, S. Doshi Girls High School and Anr. v. Lilaben Somabhai Gadasa (2008 (4) GLR 2947) iii) Regional Manager, Dena Bank and Anr. v. Hareshbhai Nathabhai Goswami (2011 (5) GRL 4471): (2010 Lab IC 3805). 5. Reverting to the facts of the present case, the workman could prima facie show her case by producing the documents at Exh.37 and Exh.38. Those documents as well as similar documents showing the details of service for the period from October 2000 to March 2002 were confirmed by the hand-writing expert and it was finally established that the workman had worked for that period continuously. As already noted, upon production of the said documents claiming to be in her hand-writing, it was the first party employer who filed application to refer the same to the handwriting expert. The burden of proof initially discharged by the workman shifted and upon confirmation of the hand-writing expert that the documents were in the hand-writing as claimed, the factum of service rendered was established. The workman could successfully prove her case. 6. The burden of proof initially discharged by the workman shifted and upon confirmation of the hand-writing expert that the documents were in the hand-writing as claimed, the factum of service rendered was established. The workman could successfully prove her case. 6. In light of above, breach of Section 25F of the Industrial Disputes Act is cogently established. The action of termination of service was thus rendered void and illegal from the inception. The Labour Court in its judgment and award was eminently justified in setting aside the termination and directing reinstatement of the respondent-workman. That part of the judgment and award of the Labour Court is required to be upheld. 7. Now, adverting to the aspect of back-wages, the Labour Court has granted 75% backwages. It is well settled that the relief of backwages is not an automatic relief to follow. In Hindustan Motors Limited v. Tapan Kumar Bhattacharya ( AIR 2002 SC 2676 ), the Supreme Court reiterated the principle that even if the dismissal is set aside, relief of full backwages need not follow as a matter of course and the Tribunal is required to exercise discretion; full backwages could not be awarded without application of mind and without considering the pleadings and the evidence. The award of backwages and extent thereof is entirely in the realm of discretion of the court, which discretion is required to be exercised on sound and judicious principles taking into account the relevant factors in relation to individual case. At the same time, where the termination is illegally effected by the employer, thereby abridging rights and throwing the workman to a situation where the workman would be without source of bread, the grant of backwages would be a lawfully entailing relief. 7.1 In the present case, the Labour Court observed inter alia from the evidence of the workman that she was earning some amount by doing miscellaneous tailoring work; at the same time, she stated that her husband serving as an agent was earning Rs. 4000/-, but he died, and there was no source of income, that she was not getting any other income and her household expenses used to be Rs. 6000/- per month, the order regarding backwages ought to have been addressed by the Court by balancing the aforesaid aspects of the matter. 4000/-, but he died, and there was no source of income, that she was not getting any other income and her household expenses used to be Rs. 6000/- per month, the order regarding backwages ought to have been addressed by the Court by balancing the aforesaid aspects of the matter. Considering the totality of facts and circumstances in the present case, and considering the time gap which has intervened, granting 75% backwages to the workman being on higher side, needs to be reconsidered. Having regard to the aforesaid facts and aspects noted, it would meet the interests of justice, if 40% backwages is awarded to the respondent-workman. 8. For the foregoing reasons and discussion, the order of reinstatement in the judgment and award of the Labour Court is upheld. The part of the judgment and award in so far as it directs 75% backwages is required to be interfered with and substituted with 40% backwages directing the petitioner to pay 40% backwages for the intervening period from 01.04.2002 till the respondent-workman is actually reinstated. The judgment and award shall stand modified to the said extent only and the rest is maintained. 9. Thus, the petitioner shall comply with the judgment and award and reinstate the respondent-workman within 2(two) weeks from the receipt of copy of this judgment. It will be open for the workman to produce a simple copy and to report for duty upon which the petitioner-employer shall reinstate the workman. The backwages of 40% directed as above shall be paid within 10(ten) weeks. The petition stands decided and disposed of in the aforesaid terms. Notice stands discharged.