JUDGMENT : K.M. Thaker, J. 1. The captioned petitions are, in substance and in effect, cross petitions inasmuch as original claimant before the learned Labour Court and original opponents have taken out captioned petitions against the same award passed by learned Labour Court at Junagadh i.e. Award dated 30.11.2006 passed by learned Labour Court, Junagadh in Reference No. 31 of 2002. 1.1 By impugned award, learned Labour Court directed the opponent University to reinstate the original claimant on post of labour and to pay 20% backwages. The original claimant as well as the opponent University are aggrieved by the said award and final directions. Hence these cross petitions. For sake of convenience, the parties to present proceeding are described on the basis of their status before learned Labour Court i.e. claimant and the opponent University. 1.2 So far as original claimant is concerned, he is aggrieved to the extent that the award directs reinstatement on the post of Labour instead of directing the employer i.e. University to reinstate him as Computer Operator-cum-Programmer. 1.3 So far as the University is concerned, it is agreed by the direction to reinstate the claimant as well as by the direction to pay 20% backwages. 1.4 Thus, according to original contesting parties before learned Labour Court, impugned award is erroneous and defective. Both sides to the present proceedings before the learned Labour Court have grievance against the finding recorded by learned Labour Court and the final direction passed by the learned Labour Court. 2. Today on final hearing of the petition, i.e. after almost 10 years both sides would contend and submit that in view of the errors in the award, the proceeding deserve to be remitted to the learned Labour Court for fresh consideration with opportunity of hearing to both sides. Unfortunately, the said realisation is little too late in time inasmuch as abut 10 years have passed since learned Labour Court passed the award with which both sides are dissatisfied and in respect of which both sides have grievance and contentions against the findings recorded by the Court as well as against the final direction. 3. So far as the factual background is concerned, it has emerged from the record that the claimant raised industrial dispute with the allegation that the opponent University illegally and arbitrarily terminated services and that, therefore, he should be reinstated with all benefits. 3. So far as the factual background is concerned, it has emerged from the record that the claimant raised industrial dispute with the allegation that the opponent University illegally and arbitrarily terminated services and that, therefore, he should be reinstated with all benefits. 3.1 Appropriate Government referred the said dispute for adjudication to learned Labour Court at Junagadh. The dispute came to be registered as Reference No. 31 of 2002. 3.2 The gist of the statement of claim filed by the claimant before learned Labour Court is found in Para-3 and 4 of the impugned award. Learned Labour Court has summarized the allegations and contention of the claimant thus: "3. It is averred that the workman was working with the first party from 19.06.96 as a Computer operator-cum-programmer. His daily wages was Rs. 40/-. It is stated that though the Institute got work done that of skilled workman. The workman was paid the salary that of unskilled labour. Therefore, he sent a notice through his advocate on 16.8.2001 to get salary and different of salary between the skilled and unskilled workman. Therefore, the first party discharged the workman after getting the notice of 16.8.2001, without any reason. It is stated that the workman was informed that his name was to be deleted from the muster rolls from 11.09.2001. 4. It is further stated that the workman was not paid notice pay, or retrenchment compensation at the time of terminating his service. It is stated that he is unemployed, junior employees to the workman are working with the first party. Therefore, it is stated to order the first party to reinstate him with backwages." 3.3 The opponent University opposed the statement of claim and the demand. The opponent University denied the allegations by the claimant including the case of the claimant that he was engaged by the University and he worked as Computer Operator-cum-Programmer. Learned Labour Court has summarized the facts stated by and contention assailed by the opponent University in its written reply in Paras 6 and 7 of the award, which reads thus: "6. It is contended that the workman has not completed 240 days, in any calendar year. Learned Labour Court has summarized the facts stated by and contention assailed by the opponent University in its written reply in Paras 6 and 7 of the award, which reads thus: "6. It is contended that the workman has not completed 240 days, in any calendar year. It is contended that the workman was engaged as a daily wager from 19.6.96 as per necessity of the work and on completion of job that could be allotted to the workman, he was discharged after giving one month notice with effect from 1.9.01. It is stated that there is no such work that could be given to the workman. 7. It is further contended that there is no post of computer operator in the University and no such post has been sanctioned in set up. It is stated the workman was entrusted the job wherever the farm needed his services. It is contended that there is no computer except with the head of Dairy Branch. It is stated that the workman was allotted job at Dairy Branch as and when required. Therefore, it is stated to dismiss the reference." 4. Upon conclusion of the pleading by both sides, learned Labour Court received and recorded evidence from the contesting parties and upon conclusion of evidence by both the sides, learned Labour Court heard submissions by learned advocates for claimants and opponent University. Thereafter, learned Labour Court considered the material available on record and the submission by contesting parties and passed impugned award with above mentioned direction. 5. Mr. Chauhan, learned advocate University submitted that it was established before learned Labour Court that the claimant had not worked for 240 days in any year with the University, much less during preceding 12 months and the allegations that the claimant worked continuously and regularly with the University or that he had worked for 240 days are incorrect. He submitted though the workman failed to establish the said fact learned Labour Court unjustifiably shifted the said burden to the University and decided the case on the ground that since the University failed to establish that the claimant did not work for 240 days, adverse inference must be drawn. He submitted that the said approach by the learned Labour Court for deciding the reference is unjust and contrary to the decision by the Hon'ble Apex Court. He submitted that the said approach by the learned Labour Court for deciding the reference is unjust and contrary to the decision by the Hon'ble Apex Court. He further submitted that since the claimant had not worked for 240 days in preceding 12 months there was no obligation on the University to comply the provision under Section 25F or Section 25G or any other provision of the Act and that therefore it cannot be said that the University committed breach of any statutory provision. Learned advocate for the University also submitted that the claimant was engaged on casual, ad hoc and daily wage basis and as unskilled labourer to work at agricultural farm of the University and the said fact was duly established before the learned Labour Court and that, therefore, learned Labour Court has specifically mentioned in the award that the claimant be reinstated on the post of labourer and that therefore claimant's objection against the said direction is unjust and baseless. With the said submission, learned advocate for the University opposed the petition filed by the claimant and also opposed the award, more particularly the direction to reinstate the claimant and to pay 20% backwages. 6. Besides the said contention, Mr. Chauhan, learned advocate for the university emphasized one factual aspect. He submitted that immediately after learned Labour Court passed the award, the University had with a view to reducing obligation of paying idle wages, addressed a letter dated 17.01.2007 and instructed the claimant to report for duty as labour in compliance of the award passed by the learned Labour Court. He further submitted that despite the said specific intimation and request to the claimant, the claimant never reported for duty, though he received the said intimation. Mr. Chauhan further emphasized the fact that the claimant addressed a letter dated 26.02.2007 to the University and informed that he is not satisfied with the direction passed by the learned Labour Court that he should be reinstated on the post of labour instead of Computer Operator-cum- Programmer he is in process of challenging the award passed by the learned Labour Court in the High Court and that therefore, he is not willing to report for duty as labour and he cannot comply the instruction of the University. Mr. Mr. Chauhan submitted that the University's communication and reply by the claimant are available on record of the Special Civil Application No. 23012 of 2007. According to the petitioner, the claimant was reinstated, but he did not report for duty. The fact with reference to the University letter dated 17.01.2007 and claimant's reply dated 26.02.2007 are not in dispute and they are not opposed by the learned advocate for the original claimant. 7. However, learned advocate for claimant would contend, while opposing the petition that the award passed by learned Labour court so far as it directs the university to reinstate the claimant as labour, is unjust and contrary to the fact as well as evidence on record. 8. At this stage, it is necessary to mention that in reply to the query by the Court, learned advocate for claimant specifically and expressly clarified that the claimant's petition is restricted to the claimant's objection against the direction to reinstate the claimant as labour and that the claimant has not challenged the decision of the learned Labour Court denying 80% backwages and restricting the relief to only 20% backwages. 9. Therefore, so far as the claimant is concerned, the issue related to denial of backwages by 80% is not required to be exonerated. 10. Ms. Pandya learned advocate for the claimant relied on document at Annexure "B" (Page-17) and submitted that one of the Officers of the University had issued a certificate which clearly gives out that the claimant was working as "labour" for computer operator in Cattle Breeding Farm of the University and that, therefore, the direction by the learned Labour Court to reinstate the claimant as labour as well as the university's communication dated 17.01.2007, are not justified. Learned advocate for the claimant heavily relied on the said certificate i.e. Annexure "B" Page-17, which was received on record by the learned Labour Court at Exh-25. She also relied on the document at Annexure "D" Page-19 which purports to be Notice dated 16.08.2001 allegedly given by learned advocate at the behest of the claimant wherein the claimant demanded that he should be assigned work as Computer Operator. Learned advocate for claimant submitted that claimant actually worked as Data entry operator. She also relied on the document at Annexure "D" Page-19 which purports to be Notice dated 16.08.2001 allegedly given by learned advocate at the behest of the claimant wherein the claimant demanded that he should be assigned work as Computer Operator. Learned advocate for claimant submitted that claimant actually worked as Data entry operator. She submitted that the award passed by the learned Labour Court which disregards the said certificate, is bad in law inasmuch as documents available on record are not considered by the learned Labour Court. She also submitted that the direction passed by learned Labour Court is contrary to the said documents and, therefore, the award deserves to be set aside. 11. With reference to the said document i.e. Annexure "B" (Page-17), learned advocate for the University submitted that the said Certificate is not issued by Competent and Authorised Officer of the University. He further submitted, without prejudice to the contention of the University, that the document is not authorised or official document issued by authorised and competent authority of the University and that therefore it cannot be taken into account however it is pertinent that even the said Certificate also does not describe the claimant either as Data Entry Operator or as Computer Operator-cum- Programmer as alleged by the claimant. He emphasized that even the said Certificate describes the claimant as "Skilled Labour" for computer operator in Cattle Breeding Farm. Mr. Chauhan emphasized that the claimant was only a labour and not a Computer Operator-cum-Programmer or Data Entry Operator as alleged by him. 12. Learned advocate for the University as well as learned advocate for the claimant relied on the statement which was placed on record of the learned Labour Court by the University wherein the University mentioned the details with regard to the nature of work for which claimant was engaged from time to time and the record of his attendance and the amount which was paid to the claimant at the time when he was engaged. Ms. Ms. Pandya learned advocate for the claimant could not escape the fact that the statement on which she placed reliance does not contain any detail with regard to nature of job for which the claimant was engaged and/or the duties which he performed and it does not describe the claimant as Computer Operator-cum-programmer and it does not come out from the said statement that he was engaged as Computer Operator-cum-Programmer of even as Data Entry Operator. She also could not escape the fact that the claimant did not place on record any material to establish that he was engaged as Computer Operator-cum-Programmer or Data Entry Operator. 13. On the other hand, from the statement which is placed by University on record at Annexure "A" in Special Civil Application No. 13552 of 2008 it comes out that during most of the period when the claimant was intermittently engaged by the University starting from July, 1996 to June, 2001, the claimant, on most occasion, according to the details mentioned in statement at Annexure "A" was engaged as unskilled labourer. Of course, from the said statement it comes out that for 2 months i.e. in September, 1996 and October, 1996, the claimant was engaged as Data Entry Operator and during span of 3 months i.e. July, 1998, August, 1998 and September, 1998 as well as in February, 1997 and March, 1997, the claimant was engaged as skilled labourer. Similarly, for 2 months i.e. December, 1999 and January, 2000 and for 3 months i.e. June, 1999, July, 1999 and August, 1999, the claimant was engaged as Skilled Labourer. 14. Except above mentioned period, the claimant was engaged as unskilled Labourer for most of the period from July 1996 to June, 2001. 15. Even the payment made to the claimant during such duration are paid at different rate then the rate which was paid to him as unskilled labourer. 16. Thus, the details in the said statement also gives out that the claimant was engaged intermittently for different work at different point of time. 17. The said details, as such, do not bring out that the claimant was engaged as Computer Operator-cum-Programmer or Data Entry Operator. 18. Above mentioned aspects related to the documents described and discussed hereinabove are prima-facie impression which emerge from the said documents. 19. 17. The said details, as such, do not bring out that the claimant was engaged as Computer Operator-cum-Programmer or Data Entry Operator. 18. Above mentioned aspects related to the documents described and discussed hereinabove are prima-facie impression which emerge from the said documents. 19. What actually emerges from the said documents and the submissions by the learned advocate for the claimants and the University is the fact that the said aspect and/or the said documents have not been considered by the learned Labour Court while passing the impugned award. 20. On reading the award it comes out that there is no discussion with regard to above discussed documents. 21. It is not clear as to whether learned advocate for the claimant and the University before learned Labour Court had actually referred to and relied on the said documents before learned Labour Court and/or whether they had made any submission before learned Labour Court on that count or not. 22. It is possible that the learned advocate for contesting parties might not have referred to the said documents and not raised any contention on strength of the said documents and, therefore, learned Labour Court did not deal with the same. 23. Be that as it may, the fact remains that the said documents and contentions have not been considered by the learned Labour Court and the impugned award is silent so far as the documents and contentions based on said document are concerned. 24. The said details, documents and submission by learned advocate also bring out the fact that both the sides are aggrieved by the award and the university has grievance with regard to certain aspects e.g. that the claimant failed to establish that he worked for 240 days and the learned Labour Court committed error shifting the burden of proof to University and in drawing adverse inference against University and directing reinstatement of the claimant without having regard to the fact that he was engaged only intermittently on adhoc, casual and daily wages and he had never worked for 240 days. Whereas, the claimant aggrieved by the fact that the learned Labour Court directed the University to reinstate him as labourer. 25. Whereas, the claimant aggrieved by the fact that the learned Labour Court directed the University to reinstate him as labourer. 25. In this view of the matter, the only course which remain open and available in respect of these 2 petitions and in reference to the award impugned in these 2 petitions is to set aside the award and remand the case to the learned Labour Court for fresh consideration of the material or record. Therefore, the submission by learned advocates for claimant and University is accepted and following order is passed: (a) Impugned award dated 30.11.2006 passed by learned Labour Court, Junagadh in Reference No. 31 of 2002, is set aside and said Reference case is remanded to learned Labour Court for fresh consideration and fresh award, in light of the material available on record, however, after granting opportunity of hearing to the claimant and the University. 26. With the aforesaid clarification and directions, the petitions are partly allowed and Rule is made absolute to the aforesaid extent. Petition Partly Allowed.