Gujarat High Court
State Of Gujarat vs Dilavarsha Bhikhusha Shahmdar on 5 August, 2025
NEUTRAL CITATION
C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17722 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 784 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 768 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 740 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 1015 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 752 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 973 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 860 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 1159 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 801 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 730 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 815 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 836 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 1197 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 786 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 971 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
YES
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STATE OF GUJARAT
Versus
DILAVARSHA BHIKHUSHA SHAHMDAR
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Appearance:
MR ADITYA DAVDA, ASST GOVERNMENT PLEADER for the Petitioner(s)
No. 1 IN SCA NO.17722 OF 2024
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NEUTRAL CITATION
C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025
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MS DIXA PANDYA, ASST GOVERNMENT PLEADER for the Petitioner(s)
No.1 in SCA NOS.740,1015,1159,801, AND 786 OF 2025
MR DHAVAL PARMAR ASST GOVERNMENT PLEADER for the
Petitioner(s) No.1 in SCA NOS 784, 752, 973, 971 OF 2025
MR MRUNAL DHOLARIA ASST GOVERNMENT PLEADER for the
Petitioner(s) No.1 IN SCA NOS.768 AND 815 OF 2025
MS. FORUM BIMAL SUKHADWALA ASST GOVERNMENT PLEADER for
the Petitioner(s) No.1IN SCA NOS.860, 730, 836 AND 1197 OF 2025
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 05/08/2025
COMMON ORAL JUDGMENT
1. Rule, returnable forthwith. Learned advocate Mr.Pandya waives service of notice of Rule on behalf of the respondent.
2. Since the issue raised in the these appeals are similar, they are being decided by a common judgment. The facts of Special Civil Application No.17722 of 2024 are taken for the purpose of adjudication.
3. This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the judgment and award dated 27.09.2022 passed by the learned Labour Court, Jamnagar in Reference (T) No.58 of 2020, whereby the Labour Court directed the present petitioner to reinstate the respondent to his original post, without granting the benefits of back wages or continuity of service.
4. It is the case of the present petitioner that the Page 2 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined Reference came to be filed by the employees seeking reinstatement in service from the date of termination, i.e., 23.05.2005, which was registered as Reference (T) No.58 of 2020. In the statement of claim filed before the learned Labour Court, it was alleged that the respondent-employees were serving as Ward Servants (Class IV) since 25.09.1994, had completed 240 days of service, and were being paid daily wages of Rs.50/-. Their services were allegedly terminated on 23.05.2005. Demand notices were issued on 23.12.2019, which went unanswered, leading to a complaint being filed before the learned Labour Commissioner, which ultimately culminated in the present References.
4.1. The petitioner appeared before the learned Labour Court and contended that the respondents had not worked continuously from 1994 to 2005 as alleged, but had only rendered services for a period of 89 days between 1994 and 1995. It was further submitted that the Reference, having been filed after an inordinate delay of 16 years, was liable to be rejected on the ground that the respondents had not completed 240 days of service in the preceding year.
4.2. The learned Labour Court, after considering the evidence adduced by both sides, partly allowed Page 3 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined the Reference in favour of the respondents, which is the subject matter of challenge before this Court.
5. Heard the learned AGP Ms.Dixa Pandya for the petitioner State and learned advocate Mr.Yogen Pandya for the respondent.
Submissions on behalf of the Petitioner:
6. Learned AGP Ms. Pandya submits that the learned Reference Court has committed an error in drawing an adverse inference against the present petitioner and in holding that the respondent had completed 240 days of service in the preceding year. She further submits that the application for production of documents, filed by the respondent, was duly replied to by the petitioner, stating that since the Reference was filed after more than 16 years, the documentary evidence sought was no longer traceable.
6.1. Learned AGP Ms. Pandya further contends that the learned Reference Court erred in shifting the burden of proof on the petitioner without the respondent first discharging the initial burden of establishing his case. It is submitted by the learned AGP Ms.Pandya that in the absence of sufficient evidence from the respondent, the award Page 4 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined passed in his favour is unsustainable. Accordingly, learned AGP Ms. Pandya prays that the present petition may be allowed by setting aside the impugned award.
Submissions on behalf of the Respondent:
7. Per contra, learned advocate Mr. Pandya, appearing for the respondent, has submitted that in total, 26 References were filed by different employees, and in all those matters, the learned Labour Court has awarded the relief of reinstatement without back wages or continuity of service.
7.1. It is submitted by the learned advocate Mr.Pandya that the State Government has accepted the award in 10 similar cases and has chosen not to challenge the same. However, in the present matter, the award has been selectively challenged, thereby discriminating against the present respondent. This act of selective challenge, according to learned advocate Mr. Pandya, amounts to arbitrary and discriminatory treatment.
7.2. Learned advocate Mr. Pandya further submits that the production application filed by the respondent was allowed by the learned Labour Court, but the same was not complied with by the Page 5 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined petitioner. Therefore, the learned Court was justified in drawing an adverse inference against the petitioner and awarding relief in favour of the respondent.
7.3. As regards the delay in filing the Reference, learned advocate Mr. Pandya submits that the learned Labour Court has already considered the same and, as a result, has rightly denied the relief of back wages and continuity of service to the respondent.
7.4. It is, therefore, submitted that since the learned Labour Court has passed the award after assigning detailed and cogent reasons, no interference is warranted by this Hon'ble Court, and the present petition deserves to be dismissed.
Findings and Reasons
8. Having considered the submissions advanced by the learned advocates for the respective parties and upon perusal of the record and proceedings produced before this Court, it emerges that the dispute came to be referred by the learned Commissioner on 24.02.2020 for adjudication of the terms as to whether the respondent is entitled to reinstatement from 23.05.2005 and whether the action of the Page 6 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined petitioner in terminating the service of the respondent is legal and valid?
8.1. In support of the case, the respondent filed a statement of claim at Exhibit 4, wherein it was averred that the respondent was serving on the post of Ward Servant, Class IV, from 25.09.1994 and was being paid daily wages of ₹50. The challenge to the alleged termination dated 23.05.2005 was made for the first time through a demand notice issued on 23.12.2019, i.e., after a lapse of more than 14 years.
9. The petitioner appeared before the learned Labour Court and filed a written statement contending that the respondent had worked only for 89 days during the year 1994-1995 and had thereafter voluntarily abandoned the service. Hence, there arises no question of termination of service. It was further contended that no steps were taken by the respondent for a period of 16 years to challenge the alleged termination, and therefore, the Reference deserves to be dismissed on the ground of delay and laches.
9.1. The respondent, however, filed an application below Exhibit 7 seeking production of wage Page 7 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined registers and attendance sheets for the period from 01.01.2000 to 31.12.2005. In response, the petitioner filed a reply below Exhibit 9, stating that the records sought were too old and, as per the guidelines issued by the State Government, such records are not preserved beyond 10 to 15 years.
9.2. Despite this, the learned Labour Court allowed the said application vide order dated 12.07.2022, directing the petitioner to produce the documents as prayed for. It emerges from the record that, except for this production application, no other evidence was adduced before the learned Labour Court.
9.3. During the cross-examination of the respondent, no satisfactory explanation was provided for the inordinate delay of more than 16 years in raising the dispute. Though the petitioner had contended that the respondent had worked only for 89 days, the learned Labour Court disbelieved the said contention and directed production of documentary evidence for a period dating back 16 years, which was admittedly not available with the petitioner.
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10. In this background, the moot question that arises for consideration is whether the learned Reference Court was justified in drawing an adverse inference in favour of the respondent.
11. At this stage, the reference of the decision rendered by the Apex Court in the various cases is required to be made hereinunder:
11.1.In the case of Municipal Corporation, Faridabad v. Siri Niwas, reported in (2004) 8 SCC 195, the Apex Court held that in order to establish continuous service as defined under Section 25B of the Industrial Disputes Act, 1947, the burden lies upon the workman. In the said case, it was observed that except for examining himself in support of his contention, the workman had neither produced any documentary evidence nor called for the same from the employer's office.
The Court further observed that even in proceedings where the provisions of the Indian Evidence Act apply, the Court may or may not draw an adverse inference against a party who, despite being in possession of the best possible evidence, fails to produce it. It was clarified that such a presumption is not mandatory and remains discretionary. The Court must consider the factual background and surrounding circumstances of the Page 9 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined dispute. It was also held that where, despite a specific direction of the Court, the evidence is not produced, the matter may stand on a different footing. However, even intentional non-production may sometimes be justified on reasonable grounds, and hence, adverse inference cannot be drawn as a matter of course.
11.2.In the case of Manager, Reserve Bank of India v. S. Mani and Others, reported in (2005) 5 SCC 100, the Apex Court held that the initial burden of proof lies on the workman to establish that he has completed 240 days of continuous service in the preceding year. The onus does not shift to the employer merely because the employer fails to substantiate a defence or takes a plea of abandonment of service. The Apex Court further held that the filing of an affidavit by the workman stating that he had completed 240 days of continuous service, or that he had made repeated representations or raised a demand for reinstatement, would not be sufficient to discharge the statutory burden of proof cast upon him.
11.3.In the case of R.M. Yellatti v. Assistant Executive Engineer, reported in (2006) 1 SCC 106, the Apex Court held that while the strict Page 10 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined provisions of the Evidence Act do not apply to proceedings under Section 10 of the Industrial Disputes Act, the general principles of evidence are nonetheless applicable. It has been consistently held that the burden of proof lies upon the workman to establish that he has worked for 240 days in the relevant year. This burden can be discharged only when the workman enters the witness box and adduces cogent oral and documentary evidence. In cases of termination of daily wage earners, where documentary proof such as appointment letters or termination orders are usually absent, the workman is entitled to call upon the employer to produce records such as nominal muster rolls, wage registers, attendance registers, and other relevant documents. However, the drawing of any adverse inference for non- production of such records would ultimately depend on the specific facts of each case. The judgment further clarifies that mere affidavits or self-serving statements by the workman are insufficient to discharge the statutory burden of proof under Section 25B of the I.D. Act. Moreover, the mere non-production of muster rolls by the employer, without any plea or proof of deliberate suppression by the claimant workman, cannot by itself be a ground for the Tribunal to draw an Page 11 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined adverse inference against the employer. The Court also reiterated the well-established principle that the High Court, in exercise of its powers under Article 226 of the Constitution of India, will not interfere with the concurrent findings of fact recorded by the Labour Court or Industrial Tribunal unless such findings are shown to be perverse or based on no evidence. This exercise too would depend on the facts and circumstances of each case.
11.4.If the above principle is applied to the present case, it clearly emerges that the Reference itself was filed after an inordinate delay of more than 15 years. The production application filed at Exhibit 7 was duly replied to by the petitioner-employer, stating that the documents sought by the respondent were more than a decade old and had already been disposed of. Furthermore, it was specifically contended that, as per the available register, the respondent's presence during the year 1994-95 was recorded for only 89 days. The relevant registers, which formed part of the record before the learned Labour Court and have also been placed before this Court through an affidavit filed by the Under Secretary, Legal Department, Gandhinagar, suggesting presence of workman in Page 12 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined each case, which is reproduced hereinbelow:
Sr. Name of LCB Ref. SCA No. Dt. of Dt. of Nos. of No Employee Appointment Termination days . worked
1. Dilavarsha 57/2020 SCA/17722/24 25.05.1994 09.01.1995 89 Bhikhusha Shahmdar
2. Godavariben 14/2020 SCA/730/25 18.05.2003 24.05.2005 412 Muljibhai Koriya 3. Niruben 66/2020 SCA/740/25 05.10.1994 - 1 Muljibhai Purabiya
4. Savitaben 35/2020 SCA/752/25 10.06.1997 18.03.1998 92 Babubhai Parmar
5. Devshi 30/2020 SCA/768/25 01.07.2000 28.04.2005 1234 Gopalbhai Bariya
6. Nashimaben 26/2020 SCA/784/25 18.09.2003 24.05.2005 284 Ibrahimbhai Pathan
7. Jashvantiben 29/2020 SCA/786/25 23.05.2003 24.05.2005 434 Parshottambh ai Rathod
8. Naynaben 25/2020 SCA/801/25 20.06.2003 31.08.2004 306 Chetanbhai
9. Raghuvirsinh 197/2019 SCA/815/25 10.06.1997 31.03.2000 117 Natubha Zala
10. Nilesh 55/2019 SCA/836/25 27.12.1995 11.04.1999 744 Vaghjibhai Jadav
11. Chandrikaben 94/2020 SCA/860/25 - - Not Ramjibhai worked Makwana at all (NIL)
12. Motiben 36/2020 SCA/971/25 03.06.2000 03.05.2005 794 Ravjibhai Solanki
13. Shaidaben 34/2020 SCA/973/25 18.01.2004 14.09.2004 68 Ibrahimbhai Pathan
14. Razak 65/2020 SCA/1015/25 14.05.1998 05.09.1998 32 Fidahusen Makwa
15. Bhavnaben 198/2019 SCA/1159/25 15.04.2001 08.05.2004 269 Rameshbhai Zala
16. Bhanuben 28/2020 SCA/1197/25 14.10.2002 22.05.2005 634 Rameshbhai Parmar Page 13 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined 11.5. Admittedly, there was no allegation of suppression or withholding of any documents with any ulterior motive. Despite the specific objection raised by the petitioner before the learned Labour Court in response to the production application, stating that the relevant records had already been destroyed, the learned Labour Court directed the petitioner to produce the muster rolls for the period from 01.01.2000 to 31.12.2005. The detail, which is referred herein above suggests, that some of the employee did not work at all or worked for very short period i.e. either one day or 89 days etc. and is remained controverted by the respondent.
12. In the opinion of this Court, in the absence of discharge of the onus, which squarely lies on the workman to prove the case of continuous service, the learned Labour Court was not justified in shifting the burden upon the petitioner that too after a lapse of 16 years from the date of the alleged termination.
Before drawing any adverse inference, the learned Court ought to have considered the facts and circumstances of the case in proper perspective. Admittedly, for a period of 16 years, no communication addressed to the petitioner was produced before the Court. The only explanation, offered by the respondent for the delay, was that Page 14 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined attempts were made, both written and oral, to communicate with the petitioner; however, no written representation was placed on record, nor were there any specific averments regarding to whom the oral representation was made or whether the same went unheeded. These essential facts were not established by the respondent.
13. As per the decision rendered by the Apex Court in the case of Prabhakar vs. Joint Director, Sericulture Department and Another, reported in (2015) 15 SCC 1, it has been held that if the services of a workman are terminated and he does not make a demand or raise the issue alleging wrongful termination immediately or within a reasonable time, but does so after a considerable lapse of time, such a dispute cannot be said to be an "existing dispute." The Court further observed that though there is no prescribed period of limitation under the Industrial Disputes Act, and the right is conferred upon the workman to raise a dispute even belatedly, when such a dispute is raised after an inordinate delay, it is essential to examine whether the dispute still survives and is in existence. In other words, notwithstanding the non-applicability of the Limitation Act, the workman must establish that there is a dispute in praesenti. To do so, the Page 15 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined workman must demonstrate that even though there is considerable delay or laches, such delay has not extinguished the industrial dispute. If the delay is such that the dispute no longer remains alive and is rendered a "dead dispute," it cannot be treated as an existing dispute capable of reference.
14. It is contended by the learned advocate Mr.Pandya that on considering the delay learned Court molded relief by not granting relief of back wages and continuity of service. To examine above contention this Court refers the decision of the Division Bench of this Court in Letters Patent Appeal No.307 of 2016 wherein the Division Bench has held as under:
"3. Challenging the order of the Labour Court, the respondent-employer approached this Court by way of Special Civil Application no.17860 of 2015. The learned Single Judge mainly on the ground that there is delay and laches on the part of the appellant-workman and placing reliance on the judgment of the Hon'ble Supreme Court on the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, subdivision, Kota v/s Mohan Lal, reported in 2013(14) SCC 543, has allowed the writ petition of the employer by setting aside the award.
4. In this appeal, it is contended by learned counsel for the appellant that the delay attributed was of nine years by the respondent employer but the learned Single Judge considered the delay as twenty years and allowed the petition. It is further submitted that The Limitation Page 16 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined Act, 1963 would not apply to the disputes under the Industrial Disputes Act. It is further contended that in any event by applying the ratio laid down by the Hon'ble Supreme Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, sub-division, Kota (supra), he is entitled for compensation.
5. It is to be noticed that though it is the case of the workman that he was discontinued from service on
15.9.1999, the dispute was raised in the year 2008. It is true that the provisions of Limitation Act, 1963 would not apply in stricto senso to the disputes under the Industrial Disputes Act but in the judgment in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, sub-division, Kota (supra) and further in the judgment of Prabhakar V/s Joint Director Sericulture Department, reported in JT 2015(9) SC 83, the Supreme Court has clearly held that in a case of unexplained delay and laches on the part of the workman, the Court shall bear in mind such objection before grant of relief. It is also to be noticed that there is a specific case of the petitioner that the petitioner last worked only upto 1989 and on his own he discontinued from attending the work. In spite of such contention, there is no material placed before the learned Single Judge to show that he has continued in service after the year 1989. In that view of the matter, we are of the view that the learned Single Judge rightly placed reliance on the judgment referred above and allowed the petition. With regard to the other submissions made by learned advocate for the appellant that he may be awarded compensation at least in terms of the ratio of the laid down in Assistant Engineer, Rajasthan State Agriculture Marketing Board, sub- division, Kota (supra), it is to be noticed that in that set of facts, there was a delay of six years and he has Page 17 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined admittedly worked from 1.11.1984 to 17.2.1986. In this case, having regard to the statement made by the employer before the Labour Court that the petitioner discontinued from the year 1989 on his own, we are of the view that this is not a fit case to grant any compensation also. Granting of compensation instead of reinstatement is also a matter which depends on various factors.
6. Having regard to the fact that there is abnormal delay and laches and the stand of the respondent that the petitioner discontinued the services on his own volition in the year 1989, we are of the view that this is not a fit case to grant compensation also. In view of the aforesaid and in view of the reasons recorded by learned Single Judge, this appeal is devoid of merits and is accordingly dismissed. As the appeal is dismissed, Civil Application also stands dismissed."
14.1.In the absence of any cogent explanation for raising the dispute belatedly, it can be presumed that the workman has either waived his right or has acquiesced to the act of termination. Consequently, if the dispute is raised after an inordinate delay, it assumes the character of a stale claim, and the learned Labour Court can hold that there is no industrial dispute in existence within the meaning of Section 2(k) of the Industrial Disputes Act. Accordingly, no relief can be granted in such a case.
15. In that background, in the considered opinion of Page 18 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined this Court, the learned Labour Court committed an error in drawing an adverse inference in favour of the respondent in the absence of discharge of the burden to establish continuous service as defined under Section 25B of the Industrial Disputes Act.
16. The next contention raised by the learned advocate Mr.Pandya that by accepting the awards in favour of the similarly situated persons in ten other References the respondent was discriminated. This Court had called for an explanation from the Under Secretary, Legal Department, who, in his affidavit, has stated that out of 26 References, in 10 References the concerned workmen had completed more than five years of service and, therefore, a conscious decision was taken not to challenge those impugned awards before this Court. In the considered opinion of this Court, when in those cases also the workmen had failed to independently establish the requirements of Section 25B, the authority could have challenged the award. However, even if such benefits have been granted, the question that arises for consideration before this Court is: in the absence of establishing any right entitling the claimant to relief, whether this Court is bound to continue or perpetuate an illegal order by extending similar relief to other employees on the ground of equality under Article 14 of the Page 19 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined Constitution of India?
17. To examine this issue, this Court has referred to the decision of the Apex Court in Ekta Shakti Foundation v. Government of NCT of Delhi, reported in (2006) 10 SCC 337, wherein it was held that the concept of equality enshrined under Article 14 of the Constitution of India is a positive concept and cannot be enforced in a negative manner. If any authority is shown to have committed an illegality or irregularity in favour of any individual or group, others cannot claim parity on the ground of denial of similar illegality or irregularity. Likewise, a wrong judgment or order in favour of one person does not confer a right on others to claim the same benefit.
18. While referring to the decision in the case of Gursharan Singh & Ors. etc. etc. v. New Delhi Municipal Committee & Ors., reported in (1996) 2 SCC 459, it has been held that citizens have misconstrued the true scope of Article 14 of the Constitution of India, which guarantees equality before the law to all citizens. The Apex Court clarified that benefits extended to certain individuals in an irregular or illegal manner cannot be claimed by others under the guise of equality enshrined in Article 14, by way of a writ petition before the High Court.
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"9.Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
18.1.This Court has also relied upon the decision rendered by the Apex Court in the case of Vice Chancellor, M.D. University v. Jahan Singh, reported in (2007) 5 SCC 77, wherein it has been held that Article 14 of the Constitution of India embodies a positive concept of equality and cannot be invoked to perpetuate or justify illegalities. The Apex Court clarified that equality before law does not envisage repetition or continuation of a wrong merely because a similar benefit was erroneously extended to someone else.
18.2.This Court has referred the decision rendered by the Apex Court in the case of Directorate of Film Festivals & Ors vs. Gaurav Ashwin Jain & Ors, Page 21 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined passed in Civil Appeal No.1892 of 2007 wherein the Apex Court has held as under:
"20.When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law. The principle has been stated by this Court in Chandigarh Administration v. Jagjit Singh [1995 (1) SCC 745] thus :
"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of Page 22 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not Page 23 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a similar action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles."
In Gursharan Singh v. New Delhi Municipal Committee [1996 (2) SCC 459], this Court observed :
"There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State \005.. so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 Page 24 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuated an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in the process there has been a discrimination."
18.3.In the case of State Of Bihar & Ors vs Kameshwar Prasad Singh & Anr, reported in AIR (2000) SC 2306 the Apex Court has held as under:
"30.The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. NDMC, (1996) 2 SCC 459 : (1996 AIR SCW 749 : AIR 1996 SC 1175) held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in Page 25 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined the High Court. The Court observed (Para 9) :
"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain, (1997) 1 SCC 35 this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding :
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
In State of Haryana v. Ram Kumar Mann,(1997) 3 SCC 321:(1997 AIR SCW 1574) this Court observed (Para 3) :
"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to Page 26 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."
31.In view of our finding that the judgment of the High Court in the case of Brij Bihari Prasad Singh being contrary to law was not sustainable and liable to be dismissed, the impugned judgment in the case of Kameshwar Prasad Singh's case cannot be upheld. The aforesaid respondent is, therefore, not entitled to any relief as prayed for by him on the analogy of the judgments passed and directions given in Brij Bihari Prasad Singh's case."
19. The High Court cannot ignore the law in the well- accepted norms governing the writ jurisdiction, nor can it hold that merely because a similar award was Page 27 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined accepted in another case, the same course must be repeated, irrespective of whether such order or action is contrary to law or otherwise. Before examining the issue of discrimination, the Court must first ascertain whether the respondent approaching the Court has established a legal right. As held in the above-referred decisions, equality under Article 14 of the Constitution of India is a positive concept and cannot be enforced in a negative manner. If the order in favour of another person is found to be contrary to law or unwarranted in the facts and circumstances of that case, such illegal or unwarranted orders cannot be made the basis for issuing a writ compelling the authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary powers of this Court cannot be exercised for such a purpose.
19.1.Merely because the authority has once passed an illegal order, which may have been accepted, it does not entitle the High Court to compel the authority to repeat the illegality again and again. Any illegal or unwarranted action must be corrected in the first instance. Even if, on an earlier occasion, a wrong order was passed, the same cannot be made the foundation for claiming equality for its enforcement. As observed earlier, Page 28 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined the right to claim equal treatment must be founded upon an enforceable legal right. A wrong decision does not create a right to enforce another wrong order or to claim parity. Two wrongs can never make a right.
20. The learned Labour Court, while granting the relief of reinstatement, observed that as there were 240 vacant posts in Class IV, an order of reinstatement would serve the ends of justice. This Court has referred to the decision rendered by the Apex Court in State of Himachal Pradesh v. Suresh Kumar Verma, reported in (1996) 7 SCC 562, wherein a three-Judge Bench of the Apex Court held that a person appointed on a daily-wage basis is not an appointee to a post in accordance with the rules.
21. In the considered opinion of this Court, if directions are given to re-engage a person in any other work or to appoint them against existing vacancies, the judicial process would become another mode of recruitment de hors the rules. Appointments are required to be made in accordance with the doctrine of public employment, and in such circumstances, it would not be proper to direct reinstatement of the employee.
Page 29 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined
22. With regard to the contention of violation of Sections 25G and 25H of the I.D. Act, it emerges from contention of the petitioner, which remained unchallenged by the respondent before the labour Court, the respondent themselves had abandoned the service, as per the testimony of the petitioner's witness. Admittedly, no evidence was adduced by the respondent to substantiate the alleged violation of Sections 25G and 25H of the I.D. Act. The learned Labour Court recorded that, since the petitioner did not maintain the seniority list, the principle of "last in, first out" had not been followed. However, the Apex Court, in Surendranagar District Panchayat v. Dahyabhai Amarsinh, reported in 2006 (2) GLR 1014, has held that in the absence of regular appointment of the workman, the employer is not expected to maintain a seniority list of employees engaged on a daily-wage basis. In the absence of any proof by the respondent regarding the existence of a seniority list and his alleged seniority, no relief can be granted for non-compliance with Sections 25G and 25H of the I.D. Act. The option to draw an adverse inference against the employer is available only when the existence of a seniority list is proved and the same is then not produced before the Court. For the Court to draw an inference adverse to a party, it must be satisfied that such evidence was in Page 30 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025 NEUTRAL CITATION C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025 undefined existence and could have been proved. On this count also, the impugned award suffers from infirmity.
23. Considering the over all circumstances, impugned award deserves interference and these petitions require to be allowed.
24. Resultantly, the present petitions are allowed. The impugned award passed by the learned Labour Court, whereby the petitioner was directed to reinstate the respondent to his original post, is hereby quashed and set aside. Rule is made absolute accordingly.
Sd/-
(M. K. THAKKER,J) M.M.MIRZA Page 31 of 31 Uploaded by M.M.MIRZA(HC01407) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:59:58 IST 2025