Burden Of Proving Completion Of 240 Days of Service In Any Calendar year rests On Petitioner: Bombay High Court

Background of Facts

Prakash S. Hande (Petitioner), claimed to have been employed by Hindustan Level Limited (Respondent) as a Clerk/Steno-Typist from June 1, 1987, to January 21, 1998, primarily at the Head Office and Research Center in Andheri. He alleged that despite performing duties akin to a permanent employee, he was terminated without due process. After a demand for reinstatement with full back wages, conciliation efforts failed, and the case was referred to the Labour Court. The Petitioner challenged his termination and sought reinstatement with full back wages. However, the Respondent contended that the Petitioner was engaged intermittently as a temporary worker based on exigencies of work and that his termination fell under Section 2(oo)(bb) of the Industrial Disputes Act, 1947. The Labour Court in its order rejected the Petitioner's reference but allowed the Respondent the liberty to offer the Petitioner a job, conditional on him clearing eligibility tests. Aggrieved by the order of the Labour Court, the Petitioner filed the writ petition.

It was contended by the Petitioner, that the Labour Court made an error in dismissing the reference without considering that the Petitioner's termination lacked due process. The Petitioner completed over 240 days of service in various calendar years, making his termination without retrenchment compensation and notice wages a violation of the Industrial Disputes Act, 1947. The Petitioner further contended that the Respondent falsely claimed contractual engagement without providing any support documents and that the burden of proving this claim rested on the Respondent, who failed to produce such evidence.

On the other hand, the Respondent contended that the issuance of reference order was unnecessary since the Respondent had offered the Petitioner temporary employment and later invited him to participate in the regular selection process by taking a test. Further, it was contended that the Petitioner himself admitted in the statement of claim to working intermittently with the Respondent, implying that his services were utilized based on the exigency of work. Additionally, the Respondent argued that the burden of proving continuous service for 240 days rested on the Petitioner. Moreover, the Respondent argued that the Petitioner made false statements under oath regarding his employment status claiming that the Respondent proved these statements false by presenting evidence that the Petitioner was employed elsewhere since April 2003.

Findings of the Court

The court observed that the Petitioner admitted to deliberate breaks in his service with the Respondent from June 1, 1987 to March 21, 1998, indicating that his service during those years was not continuous. Although the Petitioner claimed to have completed 240 days of continuous service from December 9, 1994 to November 7, 1995, the burden of proving this rested on him. The court relied on the Supreme Court judgement of Range Forest Officer v. S. T. Hadimani wherein the court stated that the burden of proof lies with the worker to demonstrate 240 days of work in the preceding year. The court thus observed that the Petitioner failed to provide sufficient evidence to prove the same. Additionally, the court observed several discrepancies in the dates of the Petitioner's discontinuation of service. The Petitioner claimed to have begun his employment from January 22, 1998, while the Respondent claimed March 12, 1998. Despite this, the court found that the Petitioner's service was intermittently terminated when not needed by the Respondent, and the Petitioner's participation in a selection process for permanent employment indicated acknowledgment of the temporary nature of his employment.

With the aforesaid observations, the court dismissed the writ petition.

Case: Prakash S. Hande v. Hindustan Lever Limited

Case No. WP. 6125 of 200

Counsels for the Petitioner: Mr. Devendranath Shrikamt Joshi

Counsel for the Respondent: Mr. Kiran Bapat, Mr. R. N. Shah, Mr. Netaji Gawade, M/s. Sanjay Udeshi & Co.

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