Gujarat High Court
Mohanbhai Somabhai Bariya vs State Of Gujarat on 11 September, 2025
NEUTRAL CITATION
C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19240 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19245 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19247 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19248 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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MOHANBHAI SOMABHAI BARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
ADITYA DAVDA, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/09/2025
COMMON ORAL JUDGMENT
1. Leave to delete part of the prayer clause 10B. Necessary amendments shall be carried out forthwith.
2. The present petitions are filed challenging the award passed by the learned Labour Court dated 23.04.2018, whereby while awarding the relief of reinstatement, the learned Court has not granted the back wages as well as not mentioned with regard Page 1 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:25:58 IST 2025 NEUTRAL CITATION C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025 undefined to the continuity of service.
3. It is the case of the present petitioner that the petitioners are serving as daily wage labourers for more than 15 years and they have been paid the meager amount of Rs.500/- per month. Despite completing 240 days of continuous service in each year, their services were terminated without following due procedure on 01.04.1998, which is the subject matter of challenge by the workmen in Reference (T) No.382 of 2006 and other allied references. After considering the evidence adduced by both parties, the learned Court held that the termination is in violation of the provisions of the Industrial Disputes Act. However, considering the delay in filing the reference, the learned Court has not granted the relief of back wages as well as has not specified anything with regard to the continuity of service and the same is a matter of challenge before this court.
4. Heard learned advocate Mr. Brahmbhatt for the petitioner and the learned AGP Mr. Davda for the respondents.
5. Learned advocate Mr. Brahmbhatt submits that while not granting the benefit of back wages, the learned Court has committed an error in observing that no record was produced to Page 2 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:25:58 IST 2025 NEUTRAL CITATION C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025 undefined suggest that despite sincere efforts were made to procure a job, he could not succeed. Learned advocate Mr. Brahmbhatt submits that declaring on oath with regard to the unemployment, the onus would shift on the respondent to rebut the same either by cross-examining the petitioner or by producing documentary evidence. Learned advocate Mr. Brahmbhatt submits that the learned Court has committed an error in not granting the benefit of back wages only on the ground of delay and has not specified anything with regard to the continuity of the service and therefore, impugned award deserves to be interfered with qua the above relief.
6. Per contra, the learned AGP Mr. Davda has vehemently opposed these petitions and submitted that for holding the termination illegal, the learned Court has only drawn adverse inferences against the present respondents. Learned advocate Mr. Davda submits that the muster roll, which was produced before the learned Reference Court, suggests that the petitioner has not worked for a single day. Learned AGP Mr. Davda submits that the said muster roll was not for a continuous period. However, learned Reference Court has held the termination is Page 3 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:25:58 IST 2025 NEUTRAL CITATION C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025 undefined illegal and the relief of reinstatement was awarded. Learned AGP Mr. Davda submits that the reference was filed after delay of 7 years and no documentary evidence was produced except the self-serving statement, learned Court is justifying in not granting the relief of back wages. Learned AGP Mr. Davda further submits that as the reference was filed after a long time, therefore, the learned Court is also justifying in not specifying anything with regard to the continuity of service. Learned AGP Mr. Davda submits that the order of reinstatement has not been challenged by the respondent. In that background, the impugned award requires to be confirmed and the present petitions are required to be dismissed.
7. Having considered the arguments advanced by the learned advocates for the respective parties, it emerges from the record that petitioners were working with respondents for more than 15 years. Out of the four petitioners, the petitioner of Special Civil Application No.19240 of 2021 retired from service on 31.03.2019, the petitioner of Special Civil Application No.19247 of 2021 retired on 31.07.2025 and the petitioner of Special Civil Application No.19248 of 2021 retired on 30.06.2020. As on date, Page 4 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:25:58 IST 2025 NEUTRAL CITATION C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025 undefined only the petitioner of Special Civil Application No.19245 is working pursuant to the order passed by the learned Reference Court. It emerged that the learned Court, while awarding the relief of reinstatement, has neither denied the continuity of service and nor granted the same.
7.1 This Court has referred to the decision by the Hon'ble Apex Court in the case of Gurpreet Singh V/s. State of Punjab And Ors., reported in 2002 (9) SCC 492, wherein it is held that the learned Labour Court, while setting aside the termination, if has not specifically denied the continuity of service, the relief of continuity of service is required to be granted. It is true that reference was filed after a period of 7 years; however, in the considered opinion of this court, denying total back wages would be unjust and improper. It is also required to be noted herein that on making the declaration of unemployment, the same was not controverted by the witness of the respondent during cross- examination of the petitioner has neither produced evidence to rebut the same.
7.2 This Court has referred to the decision of the Hon'ble Apex Court in the case of General Manager, Haryana Roadways vs Page 5 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:25:58 IST 2025 NEUTRAL CITATION C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025 undefined Rudhan Singh reported in (2005) 5 SCC 591, wherein, the criteria is specified to decide the question of back wages, relevant part is reproduced herein below:-
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important Page 6 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:25:58 IST 2025 NEUTRAL CITATION C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025 undefined factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year."
In view of this court, if 10% back wages would be awarded to the petitioner, the ends of justice would be met.
8. Resultantly, the present petitions are partly allowed. The respondents are directed to give the continuity of service along with 10% back wages to each of the workmen and the employees who retired from service shall be entitled to such benefit up to the date of their superannuation. It is needless to clarify that if the petitioners are aggrieved by any other benefit which is not granted, the remedy would be available before the appropriate Court.
(M. K. THAKKER,J) Vikramsinh Amarsinh Page 7 of 7 Uploaded by Vikramsinh Amarsinh(HCW0055) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:25:58 IST 2025