Gujarat High Court
Laxmanbhai Bhagwanbhai Pagi vs Deputy Executive Engineer on 27 February, 2025
NEUTRAL CITATION
C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17153 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17213 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17493 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17457 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17472 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17460 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17466 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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LAXMANBHAI BHAGWANBHAI PAGI
Versus
DEPUTY EXECUTIVE ENGINEER
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Appearance:
MR A R DWIVEDI(11319) for the Petitioner(s) No. 1
MR R G DWIVEDI(6601) for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 27/02/2025
ORAL JUDGMENT
1. These petitions are filed challenging the awards passed by the learned labour court whereby, the references Page 1 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025 NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined filed by the petitioner-workmen came to be dismissed on the ground of no evidence. As in all the petitions there is a common ground of dismissing the references, this Court has considered all the petitions together and passed a common order.
2. Facts of Special Civil Application No.17472 of 2024 is taken for consideration of the disposal of the petitions.
3. It is the case of the petitioner workmen that petitioner was serving as a daily wager since1979 and was receiving wages of Rs.7.50 per day. Thereafter, in the year 1985, the services of the petitioner came to be disengaged which was challenged before the learned labour Commissioner on 16.10.2014 after a period of 31 years. Learned reference court, on considering the submission made by the respondent parties as well as considering the evidence placed by the respondent Institute below Exh.7 comes to the conclusion that petitioner fails to establish that he was working with the respondent Institute and was terminated illegally. In that view, learned reference court has dismissed the reference, which is subject matter of challenge before this Court.
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NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined
4. Heard learned advocate Ms.Supriya Tiwari for learned advocate Mr.R.G.Dwivedi for the petitioner. 4.1. Learned advocate Ms.Tiwari submits that as he was a daily wager and had not been provided with the appointment letter, identity card or a pay slip, the petitioner had not produced the same and has filed application for production of relevant documents. Learned advocate Ms.Tiwari submits that despite the said application was allowed, the respondent has only placed the seniority list of the year 1973 and submitted that as per the seniority list, name of the petitioners were not reflected. Learned advocate Ms.Tiwari submits that during the cross-examination, it is admitted by the respondent Institute that on perusing the records, the exact information can be given with regard to the strength of the daily wager during the year 1979-1985. Learned advocate Ms.Tiwari submits that though record was available, the affidavit was filed before the learned labour court stating that after the period of 25 years all the records were destroyed. Learned advocate Ms.Tiwari submits that without considering the contrary stand, learned labour court has dismissed the reference Page 3 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025 NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined and therefore, impugned award deserves to be set aside and the petition requires to be allowed.
5. Considering the submissions made by the learned advocate for the respective parties. In view of the following reasons, the impugned order does not require to be interfered with:-
i. Though it is stated before the learned labour court in the statement of claim that the petitioner was serving since 1979 as a daily wager, no evidence was adduced by the petitioner and there is no specific date mentioned in the statement of claim of joining or termination. It is stated in the statement of claim that in the year 1985 his services were disengaged, however, during the period of 1979 to 1985 at which place he worked, under whose supervision he worked has not been stated, nor any evidence was adduced. In absence of any sufficient evidence to prove the existence of the facts, the petitioner would not entitle in claiming the relief before the learned labour court. As he failed to discharge the burden of proof which was laid on the petitioner, the learned reference court has Page 4 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025 NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined dismissed the reference.
ii. The production application which is filed wherein, order was passed to produce the last three year's documents and in pursuance to the order, Exh.7 list was produced wherein, as per the seniority list which was prepared in the year 1973 name of the present petitioner is not figured. In addition to that the affidavit is filed stating that as all the documents which are demanded is prior to 25 years, it was destroyed as per the rules framed by the respondent Institute. The said order remained unchallenged by the present petitioner. This Court is of the view that as the petitioner fails to establish that at which place he worked, which date he joined and which department had terminated, merely non producing the documents would not be a ground of drawing adverse inference in favour of the present petitioner.
iii. Petitioner has stated the name of the Officers, however, no one has been examined as witnesses to prove that the petitioner ever worked with the respondent Institute. It is a well settled principal of Page 5 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025 NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined law that person who set up a plea of existence of relationship of employer and employee, the burden would be upon him. In absence of discharging the said burden, learned reference court is justified in dismissing the reference.
iv. It is true that initial burden to show the continuity of service is on the workman however, that burden can be discharged by making positive assertion and by filing the application of the production of the necessary evidence on record. At this stage, this Court has referred the decision of the Apex Court rendered in the case of R.M. Yellatti vs The Asst. Executive Engineer, reported in (2006) 1 SCC 106 is required to be referred, wherein it is held by the Apex Court in the above case that the provisions of the Evidence Act in terms would not apply in the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the judgments, it was held that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the Page 6 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025 NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or order of termination. There will also be no receipt or proof of payment. Thus in most cases, the workman can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case.
v. This Court has also referred the decision rendered by the Apex Court in the case of Director, Fisheries Terminal Division versus Bhikubhai Meghajibhai Chavda, reported in (2010) 1 SCC 47 wherein it is observed that since the employer inexplicably failed to produce the complete record and the muster roll inspite of the directions of the learned labour court, the learned labour Court was justified in concluding that the workman had completed Page 7 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025 NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined continuous service of 240 days during the preceding year.
vi. All the references were filed after the delay of more than 29 years as, as per the claim of the petitioner he was terminated in the year 1985 and all the references were filed in the year 2014. The petitioner did not produce any evidence to show that during this period any representation or application is filed requesting to reinstate in the service. In absence of any evidence, dispute cannot be said live dispute as per the decision rendered by the Apex Court in the case of Prabhakar Vs Joint Director Sericulture Department and Ors. reported in 2015 15 SCC 1 and therefore, also no error has been committed by the learned reference court in dismissing the reference of the petitioner. vii. As per the claim of the present petitioner, he joined the service in the year 1979 and as per the evidence which was adduced in the year 2016, his age is mentioned as 48 years. If this can be considered to ascertain the age at relevant point of time, then it comes on record that in the year 1979, Page 8 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025 NEUTRAL CITATION C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025 undefined the petitioner might be aged 11 years. In that view also, the claim of the petitioner falsifies and therefore, also impugned judgment and award requires to be confirmed.
6. In view of the above, no ground in made out to interfere with the impugned award, hence these petitions are dismissed.
7. Resultantly, these petitions are dismissed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 9 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:58:38 IST 2025