[Cites 13, Cited by 0]
Bombay High Court
M/S. Mallikarjun Pipes And Cements ... vs Dayanand A. Kotharkar (Since Deceased ... on 2 December, 2025
2025:BHC-GOA:2372
2025:BHC-GOA:2372
WP 470-2025
Jose
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.470 OF 2025
M/s. Mallikarjun Pipes & Cements Ltd.,
A company incorporated under the
Companies Act, 1956,
Having its registered office at
Dayanand Nagar, Dharbandora - Goa.
herein represented by its director,
Mr. Subhash Ramchandra Anvekar. ... Petitioner.
Versus
1. Shri. Dayanand A. Kotharkar,
(since deceased, Rep. by Legal heirs),
a. Shri Yogesh D. Kotharkar,
S/o Late Shri Dayanand A. Kotharkar,
R/o H. No. 666, Post Angadi,
At Kothar, Karwar, Karnataka.
b. Shri Suyog D. Kotharkar,
S/o Late Shri Dayanand A. Kotharkar,
R/o H. No. 666, Post Angadi,
At Kothar, Karwar, Karnataka. ... Respondents.
Mr. Yash Suhas Naik, Advocate for the Petitioner.
Mr. Shivraj Gaonkar, Advocate for the Respondent.
CORAM: VALMIKI MENEZES, J.
RESERVED ON: 20th June, 2025
PRONOUNCED ON: 2nd December, 2025
Page 1 of 12
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ORDER:
1. Registry to waive office objections and register the matter.
2. The Petitioner, a company incorporated under the Companies
Act, 1956, represented by its Director Shri Subhash Ramchandra
Anvekar, who has filed the present Petition, whilst invoking the
Supervisory jurisdiction of this Court, and has challenged order dated
27.01.2025, passed by the Industrial Tribunal and Labour Court, at
Panaji, Goa. The order of the Industrial Tribunal, in turn, confirms
the order dated 15.03.2024 passed by the Controlling Authority under
section 10 of the Payment of Gratuity Act, 1972.
FACTS:
3. The Petitioner company, situated at Loliem, Pollem, Canacona,
is engaged in the manufacturing of pipes and cement, in which the
Respondent claims to be employed. It is the case of the Respondent
No.1 that he is an employee in the Petitioner Company and thus filed
a claim before the Controlling Authority, under Section 10 of the
Payment of Gratuity Act, 1972 (Gratuity Act for short), in Case No.
CLE/(PG-1)/2016, contending to be in continuous employment with
Petitioner company, from 07.03.1994 to 10.09.2015 and was,
therefore, entitled to gratuity upon retirement. However, the
Respondent No.1 expired, pending the Application before the
Controlling Authority, and thus his legal representatives were
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brought on record.
4. The said claim was vehemently opposed by the Petitioner,
contending that Respondent No.1 was never an employee at the
Petitioner Company nor has he worked there for a continuous period
of 21 days, and has not produced any document or records to
substantiate his claim; the application is beyond the period of
limitation. However, the said claim was allowed by the Controlling
Authority, vide its order dated 15.03.2024, whilst directing the
Petitioner to pay an amount of ₹74,025/- with simple interest @ 10%
per annum from 11.10.2015; the Petitioner, on 13.05.2024, assailed
the order dated 15.03.2024 in an Appeal bearing No. LC-PGA-
01/2024, before the Industrial Tribunal and Labour Court, Goa,
which was summarily dismissed vide order dated 27.01.2025, by the
Industrial Tribunal, impugned herein.
5. Subsequently on 30.01.2025, the son of Respondent No.1 filed
an application before the Controlling Authority to withdraw the
gratuity amount deposited before it; the Controlling Authority issued
notice dated 21.02.2025 to the Petitioner, which was received by the
Petitioner on 07.03.2025, subsequent to the date of hearing i.e.
04.03.2025; the Petitioner vide its letter dated 07.03.2025 requested
the Controlling Authority to intimate the next date of hearing,
however the next date i.e. 24.03.2025 was not informed to the
Petitioner and an order was passed allowing the application for
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withdrawal of the gratuity amount deposited along with the interest.
SUBMISSIONS
6. The Advocate for the Petitioner, Mr. Yash Suhas Naik,
advanced the following submissions:
a. That the Petitioner never employed 10 or more persons for
the Gratuity Act to be applicable. The burden of proof was
wrongly shifted to the Petitioner, despite the Respondent
producing no documentary evidence of employment or
continuous service. The Tribunal relied only on oral
testimony and computed gratuity on presumptions,
rendering the findings perverse, unsustainable, and
prejudicial to the Petitioner.
b. According to the Petitioner, the provision of the Gratuity
Act, not been applicable to an Industrial Unit, employing
less than 10 workmen, the impugned order of the
Controlling Authority was without jurisdiction; it was
further argued that even if the Authority concluded that if
there were more than 10 employees, there was no material
produced to establish an employer employee relationship,
between the Petitioner and the Applicant.
c. That the Controlling Authority proceeded on the erroneous
legal assumption that the Industrial establishment being
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registered as a "factory" under the Factories Act, 1948,
could not presume that there were more than 10 workmen
employed therein, to apply the provisions of the Gratuity
Act.
d. It was argued that the impugned order dated 24.03.2025 was
passed without notice of hearing and in violation of
principles of natural justice, without affording any
opportunity of arguing the matter.
7. The Advocate for the Respondents, Mr. Shivraj Gaonkar,
advanced the following submissions:
a. It was submitted that the Controlling Authority like the
Industrial Tribunal under the Industrial Disputes Act,1947,
is a Tribunal, whose procedures are not restricted by rules of
evidence and procedure, considering the labour legislation
to be beneficial in nature; it was submitted that though the
burden of proof does lie initially on the workmen, such
burden should not be construed strictly since the Evidence
Act is not applicable to the procedures of Tribunal. It would
suffice if the workmen call upon the employer in whose
possession relevant documents, such as muster rolls or wage
registers, are maintained, to produce the same, and in the
absence of such production, Tribunals can draw an adverse
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inference on facts, the burden of which lies on the workmen
to prove.
b. It was further submitted that two authorities, on fact, after
assessing the evidence on record have concurrently found
that the Applicant was in employment of the Petitioner and
that there were more than 10 workmen in the establishment;
the findings on fact should not be easily upset in supervisory
jurisdiction of this Court under Article 227 which should
not reassess evidence as if the proceedings before this Court
were an appeal.
c. In furtherance of his arguments, the Respondent relied on
the following case laws:
i. R.M. Yellatti v. Asstt. Executive Engineer, reported in
2006 (1) SCC 106.
ii. Gauri Shanker v. State of Rajasthan, reported in
2015 (12) SCC 754.
CONSIDERATIONS
8. On considering the pleading of the parties, the written
statement of the Petitioner raises a preliminary objection on
maintainability stating that the Applicant was not in continuous
service of the Petitioner, and the Petitioner is not covered by the
Gratuity Act, as it does not engage 10 or more employees. Apart from
merely denying that the Applicant was its employee and stating that
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it does not engage more than 10 workmen, there are no facts pleaded
as to the number of workmen actually employed by the Petitioner.
This is an evasive pleading as the number of employees and the rolls
of the Petitioner ought to have been within its knowledge, as it is not
the Petitioner's case that it did not run an Industrial establishment.
9. The workman examined himself and one co-worker, in whose
evidence it has come on record that the applicant had worked with
the Petitioner from 07.03.1994 till the date of his retirement,
10.09.2014 (21 years). His co-worker, Prashant Bandekar, has also led
evidence to this effect, establishing that the applicant was in
employment for a substantial period and certainly for a continuous
period of 240 days in a year, to establish his continuous service. Thus,
the initial burden having been discharged, the Petitioner ought to
have at least placed on record its wage registers and employment
registers, which were within its possession, to substantiate that the
Applicant was neither its employee nor did it engage more than 10
workmen. There is absolutely no evidence led by the employee to this
effect.
10. The Controlling Authority has, in a detailed judgement dated
15.03.2024, considered the evidence and arrived at a finding of fact
that the Applicant was an employee of the Petitioner and the
Petitioner engaged more than 10 workmen on the date of the claim.
The fact that there was evidence led, that the Petitioner was
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registered as a factory under the Factories Act, 1948, only
corroborates this position, as registration under that Act would lead
to a presumption that since it was running the factory with power, it
employed more than 10 workmen, making the provisions of that Act
applicable to it. This piece of evidence was only to corroborate the
evidence led by the workmen, and in the absence of any cogent
evidence to counter these facts, by the employer, the version of the
workmen has been correctly accepted. The finding of the controlling
Authority cannot be termed as perverse or not based upon the
evidence on record.
11. In R. M. Yellati (supra) the Supreme Court has considered
whether the strict rules of evidence under the Evidence Act would
apply to the procedure to be followed by the Industrial Tribunal
under the Industrial Disputes Act, 1947. Whilst considering this
issue, it has examined the manner in which the burden of proof is
discharged under various labour statutes and has recorded the
following:
"17. Analyzing the above decisions of this Court, it is clear that the
provisions of the Evidence Act in terms do not apply to the
proceedings under Section 10 of the Industrial Disputes Act.
However, applying general principles and on reading the aforestated
judgments, we find that this Court has repeatedly taken the view
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
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earners, there will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus in most cases, the
workman (the claimant) 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 the facts of each case. The above decisions
however make it clear that mere affidavits or self-serving statements
made by the claimant/workman will not suffice in the matter of
discharge of the burden placed by law on the workman to prove that
he had worked for 240 days in a given year. The above judgments
further lay down that mere non-production of muster rolls per se
without any plea of suppression by the claimant workman will not be
the ground for the Tribunal to draw an adverse inference against the
management. Lastly, the above judgments lay down the basic
principle, namely, that the High Court under Article 226 of the
Constitution will not interfere with the concurrent findings of fact
recorded by the Labour Court unless they are perverse. This exercise
will depend upon facts of each case."
12. The ratio laid down in R.M. Yellati (supra) applies to the
specific facts of the present case, where the workman himself and on
examining his co-workmen, has brought on record, evidence to
establish his relationship as well as the number of workmen employed
at the establishment. In the absence of any evidence led, especially on
the production of the relevant registers, by the employer, and
considering that the rules of evidence do not strictly apply to the
procedures in labour tribunals, the version of the workmen has been
correctly accepted. There was no cause for interference with these
findings of fact by the Appellate Court.
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13. The Appellate Court/ Industrial Tribunal has re-appreciated
the entire evidence and, in a very detailed judgement, has
independently and concurrently arrived at the specific finding that
the workman was employed in continuous service at the
establishment and that the establishment employed more than 30
workmen in its unit. There is no infirmity in the findings arrived at by
the Appellate Forum, which has correctly assessed the evidence and
applied the correct law to the facts of the case.
14. As held in Gauri Shanker (supra), the scope of reviewing or
reassessing evidence and scanning through the judgment of
subordinate Tribunals in the supervisory jurisdiction of the High
Court under Article 227 of the Constitution of India is very narrow.
Specific reference to this principle is found in paragraph 20 of this
judgment, which is quoted below:
"20. It is not in dispute that the workman was employed with the
respondent Department in the year 1987 and on the basis of material
evidence adduced by both the parties and in the absence of the non-
production of muster rolls on the ground that they are not available,
which contention of the respondent Department is rightly not
accepted by the Labour Court and it has recorded the finding of fact
holding that the workman has worked from 1-1-1987 to 1-4-1992.
The Labour Court has drawn adverse inference with regard to non-
production of muster rolls maintained by them; in this regard, it
would be useful to refer to the judgment of this Court in Gopal
Krishnaji Ketkar v. Mohd. Haji Latif wherein it was held thus:
(AIR p. 1416, para 5)
"5.... Even if the burden of proof does not lie on a party the Court
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may draw an adverse inference if he withholds important
documents in his possession which can throw light on the facts at
issue. It is not, in our opinion, a sound practice for those desiring
to rely upon a certain state of facts to withhold from the Court the
best evidence which is in their possession which could throw light
upon the issues in controversy and to rely upon the abstract
doctrine of onus of proof. In Murugesam Pillai v Manickavasaka
Pandara", Lord Shaw observed as follows: (IA p. 103)
'A practice has grown up in Indian procedure of those in
possession of important documents or information lying by,
trusting to the abstract doctrine of the onus of proof, and failing,
accordingly, to furnish to, the courts the best material for its
decision. With regard to third parties, this may be right enough-
they have no responsibility for the conduct of the suit but with
regard to the parties to the suit it is, in Their Lordships' opinion
an inversion of sound practice for those desiring to rely upon a
certain state of facts to withhold from the court the written
evidence in their possession which would throw light upon the
proposition.'
This passage was cited with approval by this Court in a recent
decision- Biltu Ram v. Jainandan Prasad (Civil Appeal No.941
of 1965, order dated 15-4-1968(SC)). In that case, reliance was
placed on behalf of the defendants upon the following passage
from the decision of the Judicial Committee in Bilas Kunwar v.
Desraj Ranjit Singh (1914-15 42 IA 202 : (1915) 2 LW 830¹:
(IA р. 206)
'... But it is open to a litigant to refrain from producing any
documents that he considers irrelevant; if the other litigant is
dissatisfied it is for him to apply for an affidavit of documents
and he can obtain inspection and production of all that appears
to him in such affidavit to be relevant and proper. If he fails so to
do, neither he nor the Court at his suggestion is entitled to draw
any inference as to the contents of any such documents.' "
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15. Applying these principles to the present case, the Authorities
from which the present petition arises, having arrived at concurrent
findings of fact on acceptable evidence, the case before me does not
call for review in jurisdiction under Article 227 of the Constitution of
India. The findings are therefore affirmed by me, and the Petition is
rejected.
16. No Costs.
VALMIKI MENEZES, J.
2nd December, 2025
