JUDGMENT D.P. Singh, J.
1. Heard counsel for the parties.
2. This writ petition is directed against the Labour Court award dated 3.6.1995 whereby the claim of the respondent workman has been accepted and relief of reinstatement with back wages has been granted.
3. It appears that the respondent workman was working on daily wage basis in the Irrigation Department of the State of U.P.
4. The case as set up before the Labour Court was that since August, 1987 he was working as such but when he made a claim for regular wages therefore his services were ceased. This dispute could not be resolved by the Conciliation Officer as such on a failure report, the dispute was referred under Section 4K of the U.P. Industrial Disputes Act which was registered as Adjudication Case No. 173 of 1992 by the Labour Court, Variansi. The parties filed their written statement and the workman also made his oral statement before it. The representative of the petitioner did not appear after filing of its pleadings, thus the Labour Court proceeded exparte and has rendered the award which is under challenge.
5. Learned counsel for the petitioner has urged that in the written statement filed on behalf of the department a clear case was taken up by it that the Irrigation Department is not an industry within the meaning of Act and this contention has not been considered by the Labour Court at all. In supped of his contention he has relied upon a decision of the Apex Court in the case of Executive Engineer (Sate of Karnataka) v. K. Somasetty and Ors. [(1997) 5 Supreme Court Cases 434] Learned counsel for the respondent workman has no answer to this issue but he insists that since no evidence was led by the State, this point could not have been decided, in my opinion, the contention of the learned counsel for the respondent workman cannot be accepted. Once an objection has been raised with regard to the jurisdiction, it would be open to the workman to prove by evidence to show the nature of work carried on by the department to enable the court to record a finding that the department was in fact an Industry. In the aforesaid case, the Apex Court after examining the nature of the work carried out by the department has held that Irrigation Department is not an Industry.
6. The learned counsel for the petitioner has next urged that the case as set up in the written statement was that the workman was a daily wage employee who was engaged from time to time whenever work was available but the Labour Court without recording a finding that the workman had continuously worked for 240 days in the last 12 calendar months, it has granted relief of full back wages which was illegal. However, learned counsel for the respondent workman has vehemently urged that there was a statement on his behalf that he has continuously been working for three years and it has also been recorded by the Labour Court. The Labour Court in its finding has said that the workman has worked for nearly three years but no finding has been recorded that he worked continuously for 240 days in the last 12 calendar months. The Apex Court in the case of Range Forest Officer v. S.T. Hadimani (2002 (94) F.L.R. 622) has held that where the employer disputes the continuous working of the workman, the burden is upon the workman to prove by cogent evidence that he has worked for 240 days continuously for the last 12 calendar months.
7. The learned counsel for the workman has lastly urged that in similar circumstances with regard to another workman this court vide its judgment and order dismissed the Civil Misc. Writ petition No. 34290 of 1999 against a similar award and which order of this Court has been upheld by the Apex Court. A bare perusal of the judgment of the aforesaid case shows that in the other case there was a specific finding recorded by the Labour Court that the workman had worked for 240 days for the last 12 calendar months and as such it held that without complying with the provision of 6N, their services could not be dispensed with. Thus, the case relied upon by the learned counsel for the workman does not apply to the facts and circumstances of this case.
8. For the reasons given hereinabove, this petition succeeds and is allowed and the impugned award dated 3.6.1995 is hereby quashed. No order as to cost.