JUDGMENT Surya Prakash Kesarwani, J. 1. Heard Sri Ranjeet Asthana, learned Counsel for the petitioner. No one appears on behalf of the Respondent No. 2 even in the revised call. Briefly stated the facts of the present case are that undisputedly the petitioner was engaged on temporary basis by the Respondent No. 2 as messenger at Naini Branch, Allahabad for the period from 6.5.2000 to 8.9.2004. However, according to the petitioner he continuously worked from 6.5.2000 till 4th November, 2006 on which date his services were illegally terminated by the Respondent No. 2. Thereafter he raised an industrial dispute and the Central Government vide order dated 7.1.2008 referred the following question to the prescribed authority: "2. Whether the action of the management of Bank of Baroda, in terminating the services of Sri Mohd. Wazid Messenger, with effect from 4.11.2006 is justified and legal? If not to what relief the concerned workman is entitled to?" 2. It appears that the aforesaid reference was registered as Industrial Dispute Case No. 25 of 2008. During the course of proceeding in the aforesaid Industrial Dispute case, before the Respondent No. 1 the petitioner filed 25 documents and the Respondent No. 2 filed 10 documents. The Respondent No. 2 produced two witnesses, namely, Sri Ram Palat (MW-1), who was an officer of the bank and Sri Manglesh Dubey (MW-2). The witnesses were examined. As per impugned award the petitioner filed photostat copies of some vouchers. He moved an application dated 26th October, 2009 before the Respondent No. 1 for summoning certain documents. Despite the application moved by the petitioner, the records were not summoned. Although in the impugned award the Respondent No. 1 noted the facts in some detail but he rejected the claim of the petitioner without consideration to the facts of the case and his application for summoning of the records. The relevant portion of the impugned award is reproduced below: "22. I have respectfully gone through the principle laid down by the Hon'ble Apex Court, but considering the facts and circumstances of the present case, I am of the view that the workman cannot take any benefit from this decision. 23. I have examined the contention of the workman that the opposite party did not file the relevant documents relating to the period 2005-06. 23. I have examined the contention of the workman that the opposite party did not file the relevant documents relating to the period 2005-06. I do not find that there is any mala fide intention of the opposite party in withholding the records because the opposite party, their witnesses have specifically stated that the workman did not work during the period 2005-06. This fact can also be relied because when the workman himself is filing all the related vouchers etc. then he could not have also filed the other entire document relating to the period 2005-06, but there is no such document which may prove that the workman has completed 240 days of continuous working. Therefore, the workman has miserably failed to prove this case. 24. Reference is therefore, decided against the workman and in favour of the management." 3. From paragraph No. 21 of the impugned award it is evident that the petitioner pressed his application for summoning of the records and also relied upon a judgment of Hon'ble Supreme Court in the case of Devinder Singh v. Municipal, Council Sanaur 2011 (130) FLR 337 (SC). In the case of Devender Singh (supra) while dealing with the industrial dispute under section 25 of the Act, the Hon'ble Supreme Court held as under: "12. Section 2 (s) contains an exhaustive definition of the term "workman". The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence. of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term "workman". 13. 13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of section 2 (s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of section 2 (s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman. In the case of Director, Fisheries Terminal Department v. Bhikubhai Meghajibhai Chavda 2009 (123) FLR 875 (SC) : (2010) 1 SCC 47 , while considering the case of a daily wager workman under the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') held in paragraph Nos. 16, 17, 18 and 19 as under: "16. This Court in R.M. Yellatti v. Asstt. Executive Engineer has observed 2006 (108) FLR 213 (SC) : (2006) 1 SCC p. 116, para 17: "17......However, applying general principles and on reading the [aforesaid] 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 cases of termination of services of daily-waged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the 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 wage register, the attendance register, etc. Drawing the adverse inference ultimately would depend thereafter on the facts of each case." 17. Thus in most cases, the workman (the 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 wage register, the attendance register, etc. Drawing the adverse inference ultimately would depend thereafter on the facts of each case." 17. Applying the principles laid down in the above case by this Court, the evidence produced by the appellant has not been consistent. The appellant claims 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 appellant employer to prove that he did not complete 240 days of service in the requisite period of constitute continuous service. 18. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witnesses 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. 19. It has also been observed by the High Court that the muster roll for 1986-1987 was not completely produced. The appellant has 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. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of the three-Judge Bench of this Court in Municipal Corpn. Faridabad v. Siri Niwas wherein it is observed (Sic) SCC p. 198, para 15: "15. A Court of law even in a case where provisions of the Indian Evidence Act apply, 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 contentions. The matter, however, would be different where despite direction by a Court the evidence is withheld." 4. The matter, however, would be different where despite direction by a Court the evidence is withheld." 4. From the law laid down by Hon'ble Supreme Court in the case of Director, Fisheries Terminal Department (supra) and also the law laid down by the Hon'ble Supreme Court in the Case of R.M. Yellatti v. Asstt. Executive Engineer, 2006 (108) FLR 213 (SC) : (2006) 1 SCC 106 para 17, it is clear that in case of termination of services of daily-wages earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus 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 wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. 5. I find that that the petitioner has pressed his application for summoning of the relevant document, however, the respondent No. 1 did not pass any order on the said application and merely observed in concluding paragraph No. 23 of the impugned award that "I do not find that there is any mala fide intention of the opposite party in withholding the records because the opposite party, their witnesses have specifically stated that the workman did not work during the period 2005-06." Thus the respondent No. 1 merely relied upon the allegations made by the Respondent No. 2. No reasons have been assigned by the Respondent No. 1 for the aforesaid conclusion. The Respondent No. 1 should have considered the application of the petitioner for summoning of the records and should have directed the Respondent No. 2 to produce the records in evidence. The action of the Respondent No. 2 in not doing so cannot be sustained in view of the law laid down by Hon'ble Supreme Court in the cases of Director, Fisheries Terminal Department (supra) and R.M. Yellatti (supra). 6. In view of the above discussions, the impugned award dated 31.12.2013 passed by the Respondent No. 1 in Industrial Dispute No. 25 of 2008 cannot be sustained and is hereby set aside. The matter is remitted back to the Respondent No. 1 to decide the aforesaid case afresh in accordance with law after affording to the parties concerned. 6. In view of the above discussions, the impugned award dated 31.12.2013 passed by the Respondent No. 1 in Industrial Dispute No. 25 of 2008 cannot be sustained and is hereby set aside. The matter is remitted back to the Respondent No. 1 to decide the aforesaid case afresh in accordance with law after affording to the parties concerned. It is further directed that the Respondent No. 1 shall make effort to decide the case as expeditiously as possible preferably within a period of four months from the date of production of a certified copy of this order. The writ petition is allowed to the extent indicated above.