Gujarat High Court
Kanubhai Dadabhai Gadhvi vs State Of Gujarat on 7 May, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/635/2025 ORDER DATED: 07/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 635 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 17810 of 2016
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KANUBHAI DADABHAI GADHVI & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1,2
MS SHRUTI R. DHRUVE, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 07/05/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal is filed under Clause 15 of the Letters Patent, 1865, and is directed against the order dated 09.08.2024 passed by the learned Single Judge in the captioned writ petition. The said writ petition was filed by the appellants challenging the award dated 08.07.2016 passed by the Labour Court, Ahmedabad in Reference (LCA) No.1210 of 2009.
2. Learned advocate Mr. R. G. Dwivedi, appearing for the appellants, has submitted that the order passed by the learned Single Judge, confirming the award of the Labour Court, is liable to be quashed and set aside. It is submitted that both - the learned Single Judge and the Labour Court have failed to properly appreciate the fact that the appellants - original workmen - were appointed on 03.08.1990 and on 23.07.1992 respectively and continued in service until 12.03.1997, Page 1 of 9 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri May 09 2025 Downloaded on : Sat May 10 15:56:04 IST 2025 NEUTRAL CITATION C/LPA/635/2025 ORDER DATED: 07/05/2025 undefined therefore, it is presumed that the appellants had completed 240 days of continuous service. He has further submitted that there is a clear violation of Section 25H of the Industrial Disputes Act, 1947, (I.D.Act), inasmuch as juniors to the appellants were retained in service while the appellants' services were terminated. He has also referred to the appointment of one Shri Mavjibhai Popatbhai Solanki, and has submitted that the appellants are also entitled to the same treatment. Thus, it is urged that the impugned judgment and order of the learned Single Judge as well as the award passed by the Labour Court, may be quashed and set aside.
3. Per contra, learned Assistant Government Pleader has submitted that no interference is warranted in the present matter, as it is evident from the record that the appellants have failed to produce any documentary evidence to establish that they had completed 240 days of continuous service preceding their termination. She has further submitted that, in fact, no juniors were retained by the respondents, and there was no requirement to maintain a seniority list, since the appellants were not appointed on a regular basis. It is also submitted that, in the absence of any documentary evidence on record, the provisions of Section 25H of the I.D. Act, are not attracted in the present case.
4. We have heard the learned advocates appearing for the respective parties.
5. Learned Single Judge, after perusing the award of the Labour Court, which has impugned in the writ petition, has Page 2 of 9 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri May 09 2025 Downloaded on : Sat May 10 15:56:04 IST 2025 NEUTRAL CITATION C/LPA/635/2025 ORDER DATED: 07/05/2025 undefined observed in the order dated 09.08.2024 thus : -
"6. Considered the submissions and the documents on record. Revisitation of facts reveal that for their termination of the year 1997, the petitioners raised dispute before the Labour Court registered as Reference (LCA) No.1502 of 1997. The said reference was rejected by the Labour Court on the ground of jurisdiction which was subject matter of challenge in Special Civil Application No.7661 of 2006. This Court vide order dated 01.12.2006 in Special Civil Application No.7661 of 2006 directed the respondents to consider their representation. The said representation was rejected by order dated 23.02.2007, against which Special Civil Application No. 11435 of 2007 was filed, wherein this Court directed the respondent authorities to consider the case of the petitioners on the ground of order dated 05.10.2005, passed in case of Shri Mavjibhai Solanki.
7. Against the order dated 05.10.2005 of respondent authorities, the petitioners preferred reference registered as Reference (LCA) No.1210 of 2009 in which the Labour Court held that no documents were produced by the workmen in relation to completion of 240 days. Their position as they were similarly situated to one Shri Mavjibhai Solanki was also not supported by any documents. The Labour Court held that except statement of claim, no documents were produced. It is also noticed that no witnesses have been examined in support of their claim. Even the ground for illegal termination were not raised before the Labour Court. Despite, having raised the independent reference seeking their reinstatement claiming parity with one Shri Mavjibhai Solanki, nothing has been referred in the statement of claim that when Shri Solanki was terminated and they were working with him. Thus, it cannot be ignored that before the Labour Court which is the factfinding Court, no evidence was led in support of their claim. Therefore, the finding of the Labour Court that the workmen failed in producing documents for their illegal termination and completion of 240 days and therefore it was difficult to prove breach of the provisions if the I.D. Act.; in the opinion of this Court is appropriate and no interference is called for. The contention of learned advocate for the petitioner that the reinstatement awarded to one Shri Mavjibhai Solanki is on record does not merit acceptance because in the opinion of this Court when the independent reference was raised claiming reinstatement, it was onus of the workmen to lead evidence in support of their claim. It was open for the workmen to lead the evidence by examination of witnesses, which was not done. Further, the finding recorded by the Labour Court is also supports the case of respondent that originally reference was decided in the year 2001, and by now 20 years have been passed as the alleged termination was of the year 1997, and therefore also reinstatement was not possible. "
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6. On a perusal of the facts incorporated in the writ petition, and as mentioned in the order dated 09.08.2024 passed by the learned Single Judge, we have noticed that the appellants, in the writ petition, have mentioned erroneous and misleading facts relating to the writ petitions filed by them before this Court. Learned Single Judge has also failed to ascertain the facts of earlier proceedings.
7. It appears that the appellants were serving under the respondent-Pension and Provident Fund Department, State of Gujarat. It is the case of the appellants that the appellants and two others were terminated in the year 1997. They had raised an industrial dispute, which culminated into Reference (LCA) No.1502 of 1997, which was rejected vide order dated 24.12.2001 on the ground that the respondent-Pension and Provident Fund Department, State of Gujarat does not fall within the definition of "Industry" as defined under section 2(j) of the I.D. Act, and since the appropriate remedy would be to file appropriate proceedings before the Tribunal, which has been constituted by the State Government for resolving the disputes of Government Employees under the Gujarat Civil Services Tribunal Act.
8. There are two appellants - original writ petitioners viz. Kanubhai Dadabhai Gandhvi and Rajubhai Arakhabhai Rathod. The order dated 24.12.2001, passed by the Labour Court in Reference (LCA) No.1502 of 1997 refers to the writ petition being Special Civil Application No.2244 of 1997. It is noticed by us that the said writ petition filed by the appellant -
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Kanubhai Dadabhai Gandhvi, was disposed of as withdrawn vide order dated 29.04.1997 with a liberty to raise Industrial Dispute. This fact has been suppressed in the writ petition viz. Special Civil Application No.17810 of 2016. The writ petition has been filed by another appellant viz., Rajubhai A. Rathod.
9. It appears that the appellant - Kanubhai Dadabhai Gandhvi filed a writ petition being Special Civil Application No.7706 of 2006 along with other three writ petitions filed by other three employees. All were decided by order(s) dated 01.12.2006. It appears that all these four employees were parties to Reference (LCA) No.1502 of 1997, which was rejected by the Labour Court on the ground of jurisdiction vide order dated 24.12.2001. Though, a statement is made in the writ petition that the appellants (in fact by Shri Kanubhai Dadabhai Gandhvi only) have challenged the said order before this Court by filing the aforesaid writ petition being Special Civil Application No.7706 of 2006, we have noticed from the order dated 01.12.2006, that this Court has not recorded any fact about challenge to the order dated 24.12.2001. This Court vide order dated 01.12.2006 has only directed the respondent- Department to consider their representation.
10. We have also noticed that the appellants in the other writ petition being Special Civil Application No.17810 of 2016 has only produced the order dated 23.02.2007 rejecting the representation of an employee Kiritkumar Kushaldas Parmar, but not of the appellants, and a misleading statement has been made in the writ petition that the representation of the appellants-petitioners has been rejected, without producing Page 5 of 9 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri May 09 2025 Downloaded on : Sat May 10 15:56:04 IST 2025 NEUTRAL CITATION C/LPA/635/2025 ORDER DATED: 07/05/2025 undefined the order. The respondent-Department, in case of Shri Kiritkumar Kushaldas Parmar, has held that he was serving as a part- timer and he was not regularly appointed.
11. It appears that against the order dated 23.02.2007 Kiritkumar Kushaldas Parmar and appellant - Kanubhai Dadabhai Gandhvi filed writ petitions being Special Civil Application Nos.11435 and 11436 of 2007, respectively, wherein this Court vide a common order dated 30.04.2007 directed the respondent authorities to consider their case on the ground of order dated 05.10.2005 passed in the case of one Shri Mavjibhai Solanki.
12. Again the respondent-Department rejected the representation of Kiritkumar K. Parmar vide order dated 19.09.2007 by holding that Shri Mavjibhai Solanki was appointed as a daily-wager, and was continued in service because of the interim orders of this Court and was ultimately appointed in view of the orders of this Court, and his case cannot be said to be similar him. The only order, which is produced in the writ petition is of Kiritkumar K. Parmar, who is not the petitioner. Thus, in this writ petition also, the appellants have not produced any order in their name rejecting their representation.
13. It appears that thereafter, the appellants again raised industrial dispute, which culminated in another proceedings being Reference (LCA) No.1210 of 2009, which has been rejected by the order dated 08.07.2016 by holding that no documents were produced by the workmen in relation to Page 6 of 9 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri May 09 2025 Downloaded on : Sat May 10 15:56:04 IST 2025 NEUTRAL CITATION C/LPA/635/2025 ORDER DATED: 07/05/2025 undefined completion of 240 days, and their claim that they are similarly situated to one Shri Mavjibhai Solanki was also not supported by any documents. The Labour Court held that except statement of claim, no documents were produced. It is also noticed that no witnesses have been examined in support of their claim.
14. The aforesaid order of the Labour Court was the subject matter of challenge in the captioned writ petition. It appears that for the first time the second appellant - original petitioner
- Rajubhai A. Rathod has filed the captioned writ petition Special Civil Application No.17810 of 2016.
15. Thus, the writ petition suffered from misleading facts and suppression of vital facts. On merits also, before us as well, nothing has been pointed out, which can come to the rescue of the appellants. The appellants have failed to produce any documentary evidence, either before the Labour Court or before the learned Single Judge to substantiate the claim that they had completed 240 days of continuous service in the year preceding their termination so as to attract the provisions of Section 25F of the I.D. Act.
16. So far as the violation of Sections 25G and 25H of the I.D. Act is concerned, we may refer to the decision of the Supreme Court in the case of Surendranagar District Panchayat vs. Dahyabhai Amarsinh, (2005) 8 SCC 750. The Supreme Court, while examining the provisions of Sections 25G and 25H read with Section 2(oo) of the I.D. Act, has observed thus:-
"...............As regards non- compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list Page 7 of 9 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri May 09 2025 Downloaded on : Sat May 10 15:56:04 IST 2025 NEUTRAL CITATION C/LPA/635/2025 ORDER DATED: 07/05/2025 undefined was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved."
17. The Supreme Court has categorically held that in the absence of regular employment, the employer is not expected to maintain a seniority list of daily-wage employees. Consequently, in absence of any proof of such a seniority list, no relief can be granted to a daily-wager for the alleged non- compliance with the provisions of Sections 25G and 25H of the I.D. Act. The appellants have not proved that any person junior (part-timer) peon to them was retained, while terminating their service. The appellants cannot claim parity with Shri Mavjibhai P. Solanki, since he was appointed as daily-wage Sweeper, and was continued under the interim orders of this Court. Shri Mavjibhai Solanki challenged his oral termination order dated 19.04.1993 by filing writ petition being Special Civil Application No.3845 of 1993 and by the order dated 06.12.1999, this Court directed the respondents to continue him and to grant all benefits.
18. In the instant case, it is pertinent to note that the initial findings of the Labour Court in the order dated 24.12.2001 rejecting Reference (LCA) No.1502 of 1997 to the effect that Page 8 of 9 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri May 09 2025 Downloaded on : Sat May 10 15:56:04 IST 2025 NEUTRAL CITATION C/LPA/635/2025 ORDER DATED: 07/05/2025 undefined the respondent-Pension and Provident Fund is not an Industry, and the appellant has the remedy of approaching the Civil Services Tribunal has not been disturbed by any of the order. This Court, in the writ petition, has also recorded that the appellants were serving as part-timer in the respondent- Department. The orders dated 23.02.2007 and 19.09.2007 passed by the Pension and Provident Fund Department of the State Government are not set aside by any of the orders passed by this Court. The appellants-writ petitioners have not produced any order passed by the respondents in their names. Hence, we are not inclined to accept the present appeal.
19. Accordingly, the Letters Patent Appeal, being devoid of merits, stands rejected.
Sd/-
(A. S. SUPEHIA, J) Sd/-
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