JUDGMENT : 1. Rule returnable forthwith. Learned advocate Ms. Vidhi Bhatt waives service of notice of Rule on behalf of respondent – workman. 2. State has filed this petition challenging the award of Labour Court, Anand, dated 15.12.2011 in Reference (LCA) Case No. 136 of 1998 wherein the Labour Court, awarded reinstatement with 20% backwages. 3. Brief facts referred in the petition are as under: - It was case of respondent – workman before the Labour Court that he was working with the office of petitioner with effect from 28.11.1995 as a peon. After joining service in Borsad, he was transferred to various other offices of State as a peon. Thereafter, without any reason and without following any provisions of the Industrial Disputes Act, 1947 (‘the Act’ for short), he was illegally terminated on 30.06.1998. It was his case before the Labour Court that he completed 240 days in a year and had continuously worked from 1995 to 1998 and thus there was breach of Section 25F of the Act. It was also stated in the Statement of Claim that at his place some other person was appointed and thus though work was available, he was illegally terminated. For the said illegal termination dated 30.06.1998, the workman raised Industrial Dispute before Labour Court, Anand registered as Reference (LCA) No. 136 of 1998. Upon adjudication, the Labour Court by award dated 15.12.2011, granted reinstatement with 20% backwages. Pursuant to the award of Labour Court, workman was reinstated in service, subject to filing of petition by order dated 23.10.2012. Aggrieved by the award dated 15.12.2011, present petition is filed. 4. Heard learned Assistant Government Pleader Mr. Mayank Chavda for the petitioner – State and learned advocate Ms. Vidhi Bhatt for the respondent – workman. 5. Learned Assistant Government Pleader Mr. Mayank Chavda for the petitioner – State submitted that taking best case of the workman, he was appointed as peon with the office of petitioner on 28.01.1995 and thereafter he was terminated on 30.06.1998. Thus, he had completed only 3 years and 4 months of service. No evidence was produced by the workman in relation to his appointment. No appointment order was produced by the respondent – workman and there was no evidence with regard to completion of 240 days in a year. Thus, he had completed only 3 years and 4 months of service. No evidence was produced by the workman in relation to his appointment. No appointment order was produced by the respondent – workman and there was no evidence with regard to completion of 240 days in a year. Further, from the written statement filed by the petitioner before the Labour Court it is evident that the respondent – workman had not worked on a permanent post. He was appointed as daily-wager and accordingly paid wages. Since the workman was not appointed on a permanent sanctioned post the seniority list was not prepared and kept. Further, provisions of the Industrial Disputes Act (“the Act) would not be applicable in case of daily wager and no notice is required to be given terminating the service. Moreover, from the wage register produced from March, 1996 to December, 1996 and from January, 1997 to December, 1997, admittedly the workman had not completed 240 days in a year. Most importantly, he was paid wages on the basis of the days he had worked. Hence, there was no breach of Section 25F of the Act as alleged. 5.1 In the cross-examination, the workman had stated that he is owning three cows and is earning from going to labour work and maintaining his livelihood. Most importantly, he stated that he was earning Rs.15,000/- per year which is more than the amount he used to receive as dailywager. Further, pursuant to the Government Resolution dated 06.02.2006, the practice of appointing daily wager has been abolished and it has been decided to appoint casual workers through outsourcing agency and therefore also the reinstatement as directed is beyond the Government Resolution dated 06.02.2006. 5.2 One more aspect which the Labour Court has ignored is that co-worker in the cross-examination had stated that he is not aware about completion of 240 days by the workman. On the contrary, he stated that the respondent was paid through vouchers and no seniority list was maintained. Learned Assistant Government Pleader submitted that the onus is on the workman to establish that he was appointed and had completed 240 days in a year, which he failed to do and therefore he would not be entitled for relief as granted by the Labour Court. Thus, the award of the Labour Court being erroneous deserves to be quashed and set aside. Thus, the award of the Labour Court being erroneous deserves to be quashed and set aside. 5.3 In support of his submissions, he relied upon decision of Hon’ble Supreme Court in the case of Surendranagar District Panchayat V/s Dahyabhai Amarsinh reported in (2005) 8 SCC 750 to submit that it is primary onus of the workman to lead evidence to support his claim that he had completed 240 days in a year. If a workman failed in discharging his primary onus, then it cannot be stated to be breach of Section 25F of the Act. Further, placing reliance on the seniority list, Learned AGP, submitted that no other workman is taken on service after Government Resolution dated 06.02.2006 and hence reliance placed by respondent – workman that someone else is appointed at his place is erroneous. 5.4 Learned Assistant Government Pleader Mr. Chavda also relied upon the appointment of casual workers through outsourcing agency by inviting tenders and the communications dated 01.02.2022, 22.04.2022. He therefore submitted that since the workman was appointed as a casual worker for limited period and not on sanctioned post, he would not be entitled for reinstatement and backwages as claimed. Most importantly, pursuant to Government Resolution dated 06.02.2006, the casual workers are appointed through outsourcing agency, and no casual worker has been appointed in place of the workman, therefore, question of reinstatement does not arise. 6. On the other hand, learned advocate Ms. Vidhi Bhatt for the respondent – workman submitted that there is no dispute with regard to the fact that respondent – workman was appointed with the office of petitioner in the year 1995. The reliance placed by petitioner on completion of 240 days is erroneous because in the Harji Patrak/Muster Roll produced by petitioner – State, the details were provided from March, 1998 to February, 1999. In Patrak 18 the details were provided from March, 1996 to December, 1996 and thereafter from January, 1997 to December, 1997. Thus, complete details of the entire year were not provided. Moreover, in the case of Workmen of A E I B Corpn. V/s. Management A E I B Corpn. reported in 1985 (4) SCC 71 Saturdays and Sundays and public holidays are to be reckoned for counting 240 days. Therefore, in this case, since the workman had completed 240 days in a year, reinstatement is appropriately awarded. 6.1. Moreover, in the case of Workmen of A E I B Corpn. V/s. Management A E I B Corpn. reported in 1985 (4) SCC 71 Saturdays and Sundays and public holidays are to be reckoned for counting 240 days. Therefore, in this case, since the workman had completed 240 days in a year, reinstatement is appropriately awarded. 6.1. She further relied upon following decisions: (i) In the case of Indian Rayon Industries Ltd. V/s. Bhikhabhai Bhagwanbhai and Ors in Special Civil Application No. 105 of 2018 decided on 20.04.2022, wherein this Court relying upon decision of Deepali Gundu Surwase V/s. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors reported in (2013) 10 SCC 324 held that when no contrary evidence is produced to prove that the workman had not completed 240 days in a year, the workman would be entitled for reinstatement. (ii). In the case of Salim Ali Centre for Ornithology and Natural History, Coimbatore and Another V/s. Dr. Mathew K. Sebastian reported in 2022 LiveLaw (SC) 377 it is held that so far as backwages are concerned it is difficult for the workman to prove negative and therefore no interference is required for backwages. (iii) In Letters Patent Appeal No. 1512 of 2019 in Special Civil Application No. 10898 of 2018 decided on 07.08.2023, it is held that once reinstatement is awarded, the workman would be entitled to 100% backwages. (iv) Reliance is also placed on the decision of Hon’ble Supreme Court in the case of Nandkishore Shravan Ahirrao V/s. Kosan Industries (P) Ltd. reported in 2020 AIR (SC) 1776 to submit that when the workman is not gainfully employed, he would be entitled to backwages. 6.2 Learned advocate Ms. Bhatt for the respondent – workman thus submitted that pursuant to the award of Labour Court the workman was reinstated in service by order dated 23.10.2012 and therefore the question only remains with regard to backwages which he would be entitled for. 6.3 On the aspect of continuity of service, learned advocate for the respondent submitted that in view of decision of Hon’ble Supreme Court in the case of Gurpreet Singh [supra] when the continuity is not been specifically denied, the workman would be entitled for continuity and therefore it is a fit case for grant of continuity and 20% backwages. 7. Considered the submissions and the decisions relied upon. 7. Considered the submissions and the decisions relied upon. Undisputedly, the workman for his illegal termination of the year 1998 raised a dispute and the same was adjudicated and vide award dated 15.12.2011 reinstatement with 20% backwages was awarded. Pursuant to the award dated 15.12.2011 the workman was reinstated in service by order dated 23.10.2012, subject to outcome of filing of petition which is subject matter here. It was submitted by Learned Advocates for both the parties that upon reinstatement w.e.f. 23.10.2012, the respondent-workman is at present working. Since, the respondent upon reinstatement is working with petitioner from the year 2012, this court deems it appropriate, not to decide the issue of reinstatement, in facts of this case, at this stage. The only issue remains is with regard to grant of continuity of service and 20% backwages. 8. In the decision of Hon’ble Supreme Court in the case of Deepali Gundu [supra] it is held as under: - “XXXX 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. XXXX” 9. In the decision of Hon’ble Supreme Court in the case of Gurpreet Singh [supra] the Hon’ble Supreme Court has held as under : “3. XXXX” 9. In the decision of Hon’ble Supreme Court in the case of Gurpreet Singh [supra] the Hon’ble Supreme Court has held as under : “3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside the part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above.” 10. Therefore, in view of above referred decisions of Hon’ble Supreme Court, it is clear that since the workman has been awarded reinstatement, the continuity is to be allowed to him and therefore the petitioners are directed to grant continuity to the workman. 11. So far as backwages are concerned the workman in his cross-examination had stated that he is owing two to three cattle and is doing business of milk to maintain his family. In the decision of Hon’ble Supreme Court in the case of Salim Ali [Supra], the Hon’ble Supreme Court has held that the employee cannot be asked to prove the negative. However, he has to at least assert on oath that he was neither employed nor was engaged in any gainful business or venture that he did not have any income. Applying the same principles in the present case from the cross-examination, it could not be established that the workman is engaged in any employment and is having continuous source of income out of the same. 12. Further, when the reinstatement is allowed, backwages are to be given to the workman. In the present case, the Labour Court considering the cross-examination of the workman as also relying upon the period for which the workman had not worked only awarded 20% backwages. 12. Further, when the reinstatement is allowed, backwages are to be given to the workman. In the present case, the Labour Court considering the cross-examination of the workman as also relying upon the period for which the workman had not worked only awarded 20% backwages. In the opinion of this Court, the grant of 20% backwages awarded to the workman is appropriate considering the unemployment of the workman and that he was only earning to meet with his livelihood expenses, in the opinion of this Court, no interference is required with regard to grant of 20% backwages. Therefore, the petition of the State is rejected and the award dated 15.12.2011 of Labour Court, Anand in Reference (LCA) No. 136 of 1998 is confirmed. Rule is discharged.