Gujarat High Court
Dabhi Tushar Baldevsinh vs Contractor Of Hina Enterprises on 21 July, 2025
NEUTRAL CITATION
C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9820 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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DABHI TUSHAR BALDEVSINH
Versus
CONTRACTOR OF HINA ENTERPRISES & ANR.
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Appearance:
MR ATRAYA K TRIVEDI(11333) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 21/07/2025
ORAL JUDGMENT
1. This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the order dated 27.09.2024 passed by the learned Presiding Officer, Labour Court, Kheda, in Reference (LCN) No. 122 of 2015. By the impugned order, the learned Labour Court has rejected the reference on the ground that the petitioner had not completed one year of continuous service, which is a mandatory requirement for invoking Page 1 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined the protection under Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the "ID Act").
2. It is the case of the petitioner before the learned Labour Court that he was employed by respondent No.2 from 11.08.2010 as a Helper in the SVP Packing Department and was being paid wages at the rate of ₹190/- per day. The petitioner claimed to have completed 240 days of continuous service. Thereafter, he was abruptly transferred to Hina Enterprise, a contractor supplying manpower. According to the petitioner, although he had rendered continuous service for a period of 3.5 years, no salary slips, identity card, or any other employment- related documents were ever issued to him. He further alleged that his services were terminated orally on 14.01.2014, while juniors were retained in service. Aggrieved by the said termination, the petitioner raised an industrial dispute, which culminated in the filing of Reference (LCN) No. 122 of 2015 before the learned Labour Court, Kheda. Upon appreciation of evidence, particularly the petitioner's own admissions and the wage register produced at Exhibit 40, the learned Page 2 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined Labour Court rejected the reference which is subject matter of challenge before this Court.
3. Heard learned advocate Mr.Atraya Trivedi. 3.1. Learned advocate Mr. Trivedi, appearing on behalf of the petitioner, submits that although the petitioner had rendered continuous service for a period of 3.5 years with respondent No.2, the learned Labour Court has committed an error in disbelieving the petitioner's case by holding that no evidence was adduced to substantiate the claim. Learned advocate Mr.Trivedi submits that in the absence of issuance of salary slips, identity card, or any documentary proof by the employer, it was not reasonably possible for the petitioner to produce such evidence. However, without examining the same, learned reference court has rejected the reference without cogent reasons. In view of the above submissions, learned advocate Mr.Trivedi prays to allow the petition by setting aside the impugned order.
4. Having considered the submissions advanced by the learned advocate and upon perusal of the reasoning assigned by the learned Labour Court, it emerges from the record that the salary was paid by respondent No.1, Page 3 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined i.e., the Contractor, and the Provident Fund deductions were made under the PF Code of respondent No.1. The petitioner, during cross-examination conducted below Exhibit 42, admitted that he did not receive any appointment letter, identity card, or salary slip for the period of service claimed from 2010 onwards. He further admitted that the PF deductions were carried out by the Contractor under his PF Code. The petitioner specifically admitted that from 30.06.2013, he was working under a Contractor, namely Jay Madi Labour Contractor, and that he began working with Hina Enterprise from 01.07.2013. He also conceded that respondent No.2 had not paid him any salary during the years 2010 or 2011. It was further admitted that he was working as employee of the Contractor and rendering services to respondent No.2 through Jay Madi Labour Contractor and Hina Enterprise. Exhibit 40, comprising the muster roll and wage register produced before the learned Labour Court, indicates that the petitioner worked for 23 days in July 2013. His name appears at Serial No.99 in the wage register for August 2013, at Serial No.98 for September 2013, at Serial No.99 for October 2013, and Page 4 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined similarly in the records up to January 2014. However, although his name appears at Serial No.92 for the month of January 2014, the muster roll reflects that no attendance was recorded for any day in that month. After considering the wage register alongwith the cross- examination of the present petitioner, learned court came to the conclusion that petitioner has worked from 01.07.2013 to 31.12.2013.
5. At this stage reference of section 25 B of the ID Act is required to be made which is reproduced herein below:-
"Section 25B - Definition of continuous service
1. For the purposes of this Chapter,--
(a) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(b) where a workman is not in continuous service within the meaning of clause (a) for a period of one year or six months, he shall be deemed to be in continuous service under an employer--
(i) for a period of one year, if the workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--Page 5 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025
NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined (a) 190 days in the case of a workman employed below ground in a mine, and (b) 240 days in any other case;
(ii) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--
(a) 95 days in the case of a workman employed below ground in a mine, and (b) 120 days in any other case.
2. For the purposes of clause (b) of sub-section (1), the number of days on which a workman has actually worked under an employer shall include the days on which--
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave, so however, that the total period of such maternity leave does not exceed twelve weeks."
6. In the considered opinion of this Court when the petitioner fails to establish the case of continuous service in twelve consecutive months preceding the date Page 6 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined of retrenchment, he cannot claim the reinstatement with any of the respondent. This Court has considered the decision rendered by the Apex Court in the case of Mohd. Ali Versus State of Himachal Pradesh And Others reported in (2018) 15 SCC 641 wherein, interpretation of section 25 B was made, is reproduced herein below:-
"14. It is a well known fact that the Industrial Disputes Act is a welfare legislation. The intention behind the enactment of this Act was to protect the employees from arbitrary retrenchments. For this reason only, in a case of retrenchment of an employee who has worked for a year or more, Section 25F provides a safeguard in the form of giving one month's prior notice indicating the reasons for retrenchment to the employee and also provides for wages for the period of notice. Section 25B of the Act provides that when a person can be said to have worked for one year and the very reading of the said provisions makes it clear that if a person has worked for a period of 240 days in the last preceding year, he is deemed to have worked for a year. The theory of 240 days for continuous service is that a workman is deemed to be in continuous service for a period of one year, if he, during the period of twelve calendar months preceding the date of retrenchment has actually worked under the employer for not less than 240 days.
15. In Surendra Kumar Verma and Others vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another (1980) 4 SCC 443, a three-Judge Bench of this Court has Page 7 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined very categorically dealt with the theory of 240 days as contemplated under Section 25B of the Act. The relevant paragraphs of the judgment are reproduced hereinbelow:-
"8....The provision appears to be plain enough. Section 25- F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present Section 25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need not be. That appears to be the plain meaning without gloss from any source.
9. Now, Section 25-B was not always so worded. Prior to Act 36 of 1964, it read as follows:
"For the purposes of Sections 25-C and 25-F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry. Explanation.--....
The difference between old Section 25-B and present Section 25-B is patent. The clause "where a workman is not in continuous service ... for a period of one year" with which present Section 25-B(2) so significantly begins, was equally significantly absent from old Section 25-B. Of the Page 8 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined same degree of significance was the circumstance that prior to Act 36 of 1964 the expression "continuous service" was separately defined by Section 2(eee) as follows: "(eee) 'continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or lock-out or a cessation of work which is not due to any fault on the part of the workman;" Section 2(eee) was omitted by the same Act 36 of 1964 which recast Section 25-B. Section 25-B as it read prior to Act 36 of 1964, in the light of the then existing Section 2 (eee), certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one year's completed service so as to attract the provisions of Section 25-F. That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v.
Workmen. The court said:
"On the plain terms of the Section 25-F only a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. 'Continuous service' is defined in Section 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. What is meant by 'one year of continuous service' has been defined in Section 25- B. Under this section a workman who during a period of Page 9 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined twelve calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed service in the industry. . . . The position (therefore) is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of Section 25-B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more." Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25-B(2) now begins with the clause "where a workman is not in continuous service . . . for a period of one year". These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the Page 10 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined other appellants."
16. Further, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225, in paragraphs 10 and 12 held as under:-
"10. It was, however, urged that Section 25-F is not attracted in this case for an entirely different reason. Mr Markendeya contended that before Section 25-F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25-F......
12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in sub-clause (a) of clause (2). The conditions are that commencing (sic) the date with reference to which calculation is to be made, in case of retrenchment the date Page 11 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter V-A. It is not necessary for the purposes of clause (2)(a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment.
In other words, in order to invoke the fiction enacted in clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the Page 12 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025 NEUTRAL CITATION C/SCA/9820/2025 JUDGMENT DATED: 21/07/2025 undefined eligibility qualification enacted in Section 25-F. On a pure grammatical construction the contention that even for invoking clause (2) of Section 25-B the workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions.
The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render clause (2) otiose. The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it......" In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period. "
7. Having considered the aforesaid judgment and the facts and circumstances of the present case, this Court does not find any infirmity or illegality in the impugned award passed by the learned Labour Court. Accordingly, the petition is devoid of merits and deserves to be dismissed.
8. Resultantly, this petition is dismissed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 13 of 13 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Jul 23 2025 Downloaded on : Wed Jul 23 23:16:22 IST 2025