Gujarat High Court
State Of Gujarat vs Prabhubhai Bhikhabhai Kabira on 7 July, 2025
NEUTRAL CITATION
C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10834 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 4975 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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STATE OF GUJARAT
Versus
PRABHUBHAI BHIKHABHAI KABIRA
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Appearance:
MS.DIXA PANDYA, AGP for the Petitioner(s) No. 1
MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/07/2025
ORAL JUDGMENT
ORDER IN SPECIAL CIVIL APPLICATION NO.10834 OF 2024
1. At the outset learned AGP Ms.Dixa Pandya states that the workman has been reinstated pursuant to the order passed by this Court.
2. The present petition is filed challenging the award Page 1 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025 NEUTRAL CITATION C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025 undefined passed by the learned labour court, Ahmedabad in Reference (LCA) No.93 of 2015 whereby the petitioner was directed to reinstate the respondent to its original post with continuity of service and without back wages. Additionally, costs of Rs.5,000/- was awarded while allowing the Reference by the learned labour Court.
3. The gist of the case is that the respondent No.1 was working with the petitioner since 01.02.2010, and his services were alleged to have been discontinued from 01.10.2014. Challenging the order of the termination, the the respondent was raised the dispute before the learned Reference Court, which registered being a Reference (T) No.93 of 2015 wherein the relief of reinstatement was claimed. During the pendency of the Reference, an application below Exhibit 6 was filed seeking the production of the relevant documentary evidence by the respondent No.1, the said application was ordered in favour of the workman. However, neither any evidence adduced nor was any affidavit filed explaining the nonproduction of the evidence which was sought. Learned Reference court, after considering the evidence adduced, concluded that the termination order Page 2 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025 NEUTRAL CITATION C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025 undefined was passed illegally and therefore, granted the relief of reinstatement with continuity of service, without back wages, which is the subject matter of challenge before this Court.
4. Heard the learned AGP Mr.Pandya for the petitionerState and learned advocate Mr.Mishra for the respondent.
5. Learned AGP Mr.Pandya submits that the learned Reference court has relied on the bare words of the respondent on completion of 240 days, service for holding termination is illegal. Learned AGP Mr.Pandya submits that no evidence was adduced by the respondent to show that he served continuously since 04 years. It is submitted by the learned AGP Mr.Pandya that despite the breach of Sections 25G and 25H of the Industrial Disputes Act, 1947 was not established, learned Reference court has allowed the Reference in favour of the respondent.
5.1. Learned AGP Mr.Pandya submits that burden to prove the continuity of service lies with the workman however, without discharging the same, the impugned award is passed by the learned Reference court and therefore, Page 3 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025 NEUTRAL CITATION C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025 undefined also the petition is required to be allowed by setting aside the award passed by the learned labour court.
6. On the other hand, learned advocate Mr.P.C.Chaudhari submits that though an application for the production of documents was filed below Exhibit 6 and the same was ordered in favour of the present respondent, the compliance of the order was not made. Learned advocate Mr.Chaudhari further submits that as per the admission of the witness of the petitioner, it was established that the respondent has served continuously served from 01.02.2010 to 01.10.2014. Learned advocate Mr.Chaudhari further submits that after serving continuously for 04 years, the respondent was terminated without following due procedure under the I.D.Act. Therefore, the learned Reference Court rightly allowed the Reference in favour of the respondent, and no inference is warranted and petition deserves to be dismissed.
7. Considering the submissions made by the learned advocates for the respective parties and on referring the reasons assigned by the learned Reference Court, it is an undisputed fact that the application below Exhibit 6 Page 4 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025 NEUTRAL CITATION C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025 undefined was filed seeking the production of the documents by the respondent. Although, the application was allowed in favor of the respondent, neither the documents were produced, nor any affidavits were filed before the learned Reference court. It is also not disputed that the witness of the petitioner had admitted during his cross examination that, as per the record maintained by the petitioner, the respondent had continuously served from 01.02.2010 to 01.10.2014.
8. From the above admission, it is evident that the record is available, however, the same did not produce and therefore, learned Reference Court has rightly drawn adverse inference against the present petitioner concluding that if the same would be produced that would go against the present petitioner.
9. 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 Page 5 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025 NEUTRAL CITATION C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025 undefined (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 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.
10. This Court has also referred the decision rendered by Page 6 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025 NEUTRAL CITATION C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025 undefined 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 continuous service of 240 days during the preceding year.
11. Considering the above decisions, this Court is of the view that in absence of compliance of the directions issued in the production application, learned labour Court had no choice but to presume that if the evidences were produced, it would have gone against the employer. In that background, the learned labour Court has rightly drawn an adverse inference against the present petitioner and concluded the Reference in favour of the respondent.
12. As this Court does not find any infirmity in the impugned judgment, this petition deserves to be dismissed, being devoid of merits.
13. Resultantly, this petition is dismissed. Page 7 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025
NEUTRAL CITATION C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025 undefined ORDER IN SPECIAL CIVIL APPLICATION NO.4975 OF 2025 Learned advocate Mr.P.C.Chaudhari submits that pursuant to the order passed by this Court, the petitioner was reinstated in the service, however, the relief now, which is required to be granted would be with regard to the back wages. Learned advocate Mr.Chaudhari submits that though declaration is made in the statement of claim as well as in the chief examination with regard to the unemployment as well as the efforts made for getting an alternate job, the learned court has committed an error in declining the relief of back wages on the ground that the petitioner did not make any averment in his pleading.
In view of the above submissions, Rule returnable on 13.11.2025. Learned AGP Ms.Dixa Pandya waives service of Rule on behalf of respondent-State.
(M. K. THAKKER,J) NIVYA A. NAIR Page 8 of 8 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:34:58 IST 2025