Gujarat High Court
The Deputy Executive Engineer vs Manjibhai Lakhabhai Rathod on 11 August, 2025
NEUTRAL CITATION
C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16981 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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THE DEPUTY EXECUTIVE ENGINEER & ANR.
Versus
MANJIBHAI LAKHABHAI RATHOD
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Appearance:
MS DIXA PANDYA, ASST. GOVERNMENT PLEADER for the Petitioner(s)
No. 1,2
MR BJ TRIVEDI(921) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/08/2025
ORAL JUDGMENT
1. This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the award passed by the learned Labour Court, whereby the relief of reinstatement with 10% back wages has been granted.
2. It is the case of the present petitioner that the respondent filed the Reference seeking reinstatement from 30.04.2003 with all consequential reliefs. In the statement of claim, it was stated that the respondent had been engaged by the petitioner- employer since 1992 as a Watchman and that his services were terminated on 30.04.2003 without following the due procedure of law. A demand notice Page 1 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined was issued on 12.03.2010 and a complaint was filed on 25.03.2010, which subsequently culminated into a Reference on 06.07.2010. It was contended before the learned Reference Court that though the respondent had continuously worked for the aforesaid period, his services were illegally terminated. Accordingly, the respondent prayed for reinstatement with all consequential benefits.
2.1. The petitioner appeared before the learned Labour Court and submitted that the Reference was filed after a delay of five years, and that the respondent had failed to establish the requirements under Section 25B of the I.D. Act. Therefore, in the absence of cogent evidence, no relief could be granted. The learned Reference Court, after considering the evidence placed on record, held that the petitioner had violated the provisions of Sections 25F and 25G of the I.D. Act and, accordingly, passed an order of reinstatement with 10% back wages, which is the subject matter of challenge before this Court.
3. Heard the learned AGP Ms. Dixa Pandya for the petitioner- State and learned advocate Mr.B.J.Trivedi for the respondent.
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4. Learned AGP Ms. Pandya submits that the learned Labour Court committed an error in accepting the case of violation of Section 25B of the I.D. Act without the workman having discharged the onus cast upon him. Learned AGP Ms. Pandya submits that, despite there being a delay of seven years in filing the Reference, the learned Labour Court, instead of dismissing the same on the ground of delay, proceeded to grant the relief of reinstatement. She further submits that the respondent, during cross- examination, admitted that he was engaged in miscellaneous work and earning between Rs.1,000/- and Rs.1,500/-, and therefore, the grant of 10% back wages is also erroneous. Hence, on these grounds as well, the impugned award deserves to be set aside.
4.1. Learned AGP Ms. Pandya submits that, without discharging the onus, the respondent filed a production application, and due to non-compliance with the order passed therein, the learned Labour Court erred in drawing an adverse inference against the present petitioner. Learned AGP Ms. Pandya further submits that, as per the settled legal position, the initial burden lies upon the workman to establish his case, and unless and until such burden is discharged, the onus cannot be shifted upon the petitioner to prove the Page 3 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined negative case of the respondent. Learned AGP Ms. Pandya also submits that, in view of the law laid down by the Apex Court in Surendranagar District Panchayat v. Dahyabhai Amarsinh, reported in 2006 (2) GLR 1014, the requirement of a seniority list does not arise in cases of daily wage appointments. However, the learned Labour Court has committed an error in holding that there is a violation of Section 25G of the I.D. Act. Therefore, the impugned award deserves to be interfered with, and the petition is required to be allowed.
5. Per contra, learned advocate Mr. Brijesh Trivedi, appearing for the respondent, has submitted that, during the cross-examination of the petitioner's witness, it was admitted that the respondent had worked continuously from 1992 to 2003. It was further admitted that the petitioner was in possession of the attendance sheets for the said period, yet the same were not produced before the Court. Learned advocate Mr. Trivedi submits that the learned Labour Court has rightly relied upon the decision of this Court in an identically situated matter, being Special Civil Application No. 18173 of 2021, which was accepted by the petitioner, and pursuant thereto, the concerned employees were reinstated. Learned Page 4 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined advocate Mr.Trivedi submits submits that, in the absence of any error or perversity in the impugned award, no interference is called for, and the petition deserves to be dismissed.
6. Having considered the arguments advanced by the learned advocates for the respective parties and on perusal of the record, it emerges that the dispute before the learned Reference Court pertained to the alleged illegal termination of the respondent's services and the prayer for reinstatement from 30.04.2003. It is an undisputed fact that the Reference challenging the termination effected in the year 2003 came to be filed in the year 2010. However, during the cross-examination of the petitioner's witness, the respondent successfully brought on record that he had rendered continuous service from 1992 to 30.04.2003. The record further reveals that, in addition to leading his own evidence, the respondent-workman filed a production application seeking production of the attendance sheets, wage registers, etc., for the period from 2001 to 2003. The said application was allowed, and the petitioner was directed to produce the documents. However, the order remained uncomplied with, leading the learned Court to draw an adverse inference.
Page 5 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined 6.1. It is pertinent to note that, during cross- examination, the petitioner's witness admitted to having perused the attendance records from 1992 to 30.04.2003. In this background, the learned Court was justified in drawing an adverse inference, as the petitioner, despite being in possession of the best evidence, failed to produce the same. It is also noteworthy that, during cross- examination, the petitioner's witness admitted that, at the time of terminating the respondent's services, neither notice nor retrenchment compensation was paid. In these circumstances, this Court is of the considered opinion that no error has been committed by the learned Labour Court in holding that there was a violation of Section 25F of the I.D. Act.
7. At this stage, reference of the order passed by this Court in Special Civil Application No.18173 of 2021 is required to be made as this Court in the identical situation has dismissed the petitions filed by the employer by observing as under:
"14. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the respondent- workman raised an industrial dispute claiming that he was serving as Daily Wager in Sathra Section of the petitioner-Department since the year 1992 and on 20-04-2013, without Page 6 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined assigning any reasons and without any fault of the respondent-workman by oral order, services of the respondent-workman came to be terminated. The respondent- workman gave the demand notice on 22-08- 2016 and on failure to reconciliation, reference was made by the State Government to the Labour Court, which was registered as Reference (LCB) No.135 of 2016. The impugned award came to be passed on 22- 04-2021. It appears that immediately upon the award being issued, the respondent-workman addressed the communication on 10-06-2021 to join the duty, but was not permitted to do so.
15. Vide Exh-13, the Labour Court has recorded the evidence of the respondent-workman in the form of Affidavit and was thereafter, cross examined on behalf of the petitioner-Department. On behalf of the respondent-workman, documentary evidence vide Exh-14 was produced, which was seniority list placed by the petitioner-Department in connection with another reference raised by different workman being LCB No.398 of 2001, where said document was given vide Exh-17. On behalf of the petitioner-Department vide Exh-19, witness - Jayeshbhai Nanjibhai Bareya was examined by way of Affidavit and cross examination by the respondent-workman. Vide Exh-20 and Exh-21, the petitioner-Department has produced details regarding attendance of the respondent - workman and tabular information of yearly attendance of the respondent- workman. Vide Exh-9, application was given by the respondent - workman before the Labour Court calling upon the petitioner-Department to place relevant documents, which were in custody of the petitioner- Department. As per application, seven documents were demanded, which included the Seniority List of the Daily Wager, Watchman cum Beldar, List of work, which was taken from the respondent-workman by the petitioner-Department, list of workmen, who were at Page 7 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined the relevant time still engaged with the petitioner- Department and also the details regarding Attendance Sheets,Salary Slips, Attendance Cards, Vouchers and Cash-books for the period between 1992 to 2013, even if such work has taken through the Contractor. In connection with this application, Exh-9, order came to be passed on 19-09-2019 directing the petitioner- Department to place on record original Attendance Sheets, Salary Slips and Vouchers of previous two years, prior to terminating the respondent-workman and also Seniority List as on 2013. Remaining documents were not called for under the aforesaid Order.
16. In response, it appears that the petitioner- Department could only produce Exh-19 and Exh-20, which is tabular form simply indicating the days on which the respondent-workman has remained present, which is claimed to have been prepared on basis of office record, but cannot be treated as evidence, which was called for by order under Exh-9.
17. In the opinion of the Court, failure to produce the evidence as ordered for by the Labour Court entitled the Labour Court to infer against the petitioner-Department regarding fact of service period of the respondent- workman and therefore, was justified in accepting the claim of the respondent-workman being in service since 1992 as Chokidarcum Beldar.
18. At this stage, it would be appropriate to refer to discussion of the impugned award, wherein the Labour Court has categorically found that despite the order below Exh-9, where an option was given either to file an Affidavit or place on record the evidence regarding Attendance Sheets and Salary Slips / Vouchers, the petitioner-Department has failed to do either and in this connection, the Labour Court has also appreciated that the petitioner-Department has resorted to pick and Page 8 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined choose policy, when it comes to place on record of the documentary evidence regarding Attendance of respondent-workman in various references. The Labour Court has also referred to cross examination of witness on behalf of the petitioner-Department, wherein he has deposed that as and when the Daily Wagers were being engaged with the petitioner-Department, Muster Roll was maintained, remuneration was paid by Vouchers and section-wise, the Attendance Sheets have been maintained of all the Daily Wagers. Therefore, the Labour Court has held that the respondent-workman has discharged his burden by his oral evidence regarding his engagement and continuous service, whereby the burden shifted on the petitioner-Department, which the petitioner-Department ought to have discharged on its own. The petitioner-Department has failed to discharge such burden, even after specific directions contained in order below Exh-9. Therefore, the Labour Court has given findings that with oblique motive, the petitioner- Department has not produced on record relevant evidence regarding Attendance of the respondent- workman with the petitioner- Department.
19. With regard to the claim of the petitioner- Department of there being delay in raising industrial dispute, when the petitioner-Department contended that the respondent-workman had himself stopped attending and reliance being placed on Circular dated 01-04-2000 by which practice of maintaining Muster for Daily Wager was completely barred. However, the Labour Court has observed that no such Circular was placed on record for appreciation of the same. Moreover, nothing is placed on record regarding the respondent-workman having abandon the service, as even the deposition of the witness on behalf of the petitioner-Department has not supported this case.
20. The evidence of Jayeshbhai Nanjibhai Bareya, the Page 9 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined Deputy Executive Engineer vide Exh-19, admits to the engagement of the respondent- workman with the petitioner-Department in the year 1995. In the cross examination, this witness has deposed that the petitioner-Department has not placed any documentary evidence in support of the claim of the petitioner- Department or against claim of the respondent- workman. In his evidence, he has mentioned that nature of work is perennial and as on today, the work is being executed through the respondent-workman who was junior to the respondent-workman. It is also stated that whenever required, the respondent-workmen from other divisions have also been called for, for executing the work of the petitioner- Department. The claim of the petitioner-Department that the respondent-workman had abandon the service, was therefore, rightly not believed and the Labour Court arrived at conclusion that cause of action to raise industrial dispute occurred only in the year 2013, when the respondent-workman was orally terminated. In the deposition of the respondent- workman, it is coming on record that after being terminated, the respondent-workman did wait on account of assurance given by the Officers of the petitioner-Department of being absorbed again with the petitioner-Department. There is no reason for this Court to disbelieve such findings given by the Labour Court more particularly, when the petitioner-Department is unable to bring anything more than this on record of the Court.
21. With regard to the contention of the petitioner- Department regarding the Department not being an Industry, such contention need not be deliberated upon in great detail in view of the decision of the Apex Court in case of Bangalore Water-Supply & Sewerage Board, etc. v/s. R. Rajappa & others reported in 1978 AIR 548 and finding given in this connection to the Issue No.2, wherein Reference is also made to other Page 10 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined Judgment of the Apex Court including the decision of Gujarat Forest Producers, Gatherers And Forest Workers Union v/s State of Gujarat reported in 2004(2) GLR 1488. At this stage, it would be pertinent to refer to the decision of this Court in case of Navnitray Parmanand Jani v/s. Deputy Executive Engineer and others passed in Special Civil Application No.20706 of 2018 and allied matters, which came to be disposed of by Common Oral Judgment dated 24-10-2019, wherein identical facts were examined by this Court and held in favour of the respondent-workman by directing reinstatement and continuity. Aforesaid order was thereafter modified by Oral Order dated 29-11- 2019.
22. The Court has considered the contention raised by the respondent- workman with regard to the breach of Section-25(F) and (G). In the opinion of the Court with nature of evidence available on the record, the Labour Court has proceeded to appreciate it in the right perspective and merely because, the evidence on behalf of the petitioner-Department indicated that nature of work was perennial and was being executed by other Juniors, would not make it necessary for the Labour Court to examine the same, when the Labour Court has considered the wider issue of reinstating the respondent- workman with continuity. Claim of the respondent- workman for examining the issue was for the purpose of back-wages in that case also, burden to bring on record the evidence to claim back-wages, would still lie on the shoulders of the respondent -workman. Perusal of the record would indicate that for the purpose of claiming back-wages, the respondent-workman has not discharged his burden by placing on record necessary evidence of him having discharged his duties from 1992 till 2013 and has not received any remuneration for the same. Moreover, from the year 2013 till raising demand, the respondent-workman has only claimed that he was given assurance by some Officers of being Page 11 of 12 Uploaded by M.M.MIRZA(HC01407) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:44:32 IST 2025 NEUTRAL CITATION C/SCA/16981/2023 JUDGMENT DATED: 11/08/2025 undefined absorbed, whereas no concrete evidence in this regard, in the opinion of the Court, is placed before the Labour Court for its appreciation. Hence, the Court does not find any reason to interfere with the findings of the Labour Court even on this count on behalf of the respondent -workman (petitioner of cross petition)."
8. As the learned Labour Court, after examining the evidence in detail, has held that there is a violation of Section 25F of the I.D. Act and, accordingly, granted the relief of reinstatement with 10% back wages, no error of law can be said to have been committed. The learned Court has also balanced the contention of the present petitioner with regard to the delay by not granting the remaining 90% of back wages. In this background also, no infirmity can be found in the impugned award, and therefore, the petition deserves to be dismissed.
9. Resultantly, this petition is dismissed. It is needless to clarify that the petitioner shall implement the award of the Labour Court, preferably within a period of 12 weeks from today.
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