[Cites 9, Cited by 0]
Bombay High Court
Sou. Shobha Laxman Kamthe, vs Bharati Vidyapeeth Ladies Hostel, on 12 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:12076
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6784 OF 2013
Sugandha Sunil More,
Age : Adult, Occ.: Nil,
R/at : Dattanagar, Ambegaon Bk.,
Digitally
signed by
near Telco Society, near Shankar,
SHABNOOR
SHABNOOR AYUB
AYUB PATHAN
Pune - 411 046. ... Petitioner
PATHAN Date:
2026.03.12
12:20:10
+0530
V/s.
Bharati Vidyapeeth Ladies Hostel,
Dhankawadi, Pune - 411 042. ... Respondent
WITH
WRIT PETITION NO. 6789 OF 2013
Suman Dnyaneshwar Gaikwad,
Age : Adult, Occ.: Nil, R/at : S. No. 46,
Dattanagar, Ambegaon Bk., Jambhulwadi,
Near Telco Society, Post - Katraj, Tal : Haveli,
Pune - 411 046. ... Petitioner
V/s.
Bharati Vidyapeeth Ladies Hostel,
Dhankawadi, Pune - 411 042. ... Respondent
WITH
WRIT PETITION NO. 6785 OF 2013
Lata Suresh Usulkar, ... Petitioner
Age : Adult, Occ.: Nil, R/at : Room No. 3,
Dattanagar, Ambegaon, Deshmukh Chawl,
1
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Pune - 411 046.
V/s.
Bharati Vidyapeeth Ladies Hostel,
Dhankawadi, Pune - 411 042. ... Respondent
WITH
WRIT PETITION NO. 6787 OF 2013
Shalini Dattatraya Kalokhe,
Age : Adult, Occ.: Nil, R/at : Rajvilas
Building, Plot No. 11, Ambegaon, back to
Bharti Vidyapeeth, Pune - 4110146 ... Petitioner
V/s.
Bharati Vidyapeeth Ladies Hostel,
Dhankawadi, Pune - 411 042. ... Respondent
WITH
WRIT PETITION NO. 6790 OF 2013
Shobha Laxman Kamthe,
(Since Deceased), Age : Adult, Occ.: Nil,
R/at : S. No. 3-21, Govind Patil Nagar,
Parande Bhau Chawl, Near Shantadurga
Provision Stores, Room No. 385, Dhankavadi,
Pune - 411 042. ... Petitioner
1(a) Pradip Laxman Kamathe,
Age 38 years, Occ. : Service,
R/at : H. No. 385, S. No. 3/21,
Govindrao Patil Nagar, Parande Bhau
Chawl, Dhankawadi Pune - 411 043.
1(b) Pallavi Jayesh Pandit,
Age 35 years, Occ. : Service,
R/at : H. No. 385, S. No. 3/21,
2
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Govindrao Patil Nagar, Parande Bhau
Chawl, Dhankawadi Pune - 411 043.
V/s.
Bharati Vidyapeeth Ladies Hostel,
Dhankawadi, Pune - 411 042. ... Respondent
WITH
WRIT PETITION NO. 12817 OF 2015
Ranjana Narayan Sakhare,
Age : Adult, Occ.: Nil, R/at : Ankush Kadam
Chawl, Grampanchayat Opp. Katraj Gaon,
Pune. ... Petitioner
V/s.
Bharati Vidyapeeth Ladies Hostel,
Dhankawadi, Pune - 411 042. ... Respondent
Mr. Vikas B. Tapkir for the Petitioner a/w Mr. Parth
Deshpande, for the Petitioner in all writ petitions.
Mr. Mahindra B. Deshmukh for the Respondent in all
writ petitions.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 7, 2026
PRONOUNCED ON : MARCH 12, 2026
JUDGMENT:
1. The present writ petitions arise out of similar set of facts and
evidence. As the issues involved are similar and arise from the
similar, they are being decided together by this common judgment.
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In the interest of convenience, facts in Writ petition No. 6790 of
2013 are treated as lead petition.
2. These writ petitions have been instituted under Article 227
of the Constitution of India challenging the award dated 2 July
2011 passed by the Presiding Officer, First Labour Court, Pune in
Reference (IDA) No.620 of 2004. The circumstances giving rise to
the present proceedings may be briefly stated. A reference came to
be made by the Deputy Commissioner of Labour, Pune under
Section 10(1)(c) read with Section 12(5) of the Industrial Disputes
Act, 1947. By the said reference, adjudication was sought on the
following demand: "Whether Smt. Shobha Laxman Kamthe is
entitled to reinstatement in service with continuity and with full
back wages for the intervening idle period with effect from 30
November 2003."
3. The petitioner filed her statement of claim at Exhibit 4. It
was stated that she had been working as a sweeper for
approximately eleven years and that her last drawn wages were
Rs.1,500/- per month. According to her, she was assigned duties in
the ladies' hostel known as "A" Block, where she was required to
clean the rooms, passages, toilets, and bathrooms. She further
asserted that such work was carried out under the instructions of
the Chief Rector, Smt. Alka Shinde, and that she was also required
to perform other duties as directed by the concerned officers. The
petitioner further contended that she was paid wages below the
prescribed minimum wages and that several statutory benefits
were denied to her. In order to pursue these grievances, she joined
the Pune Majdoor Sabha. It was stated that the Union addressed a
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letter dated 12 April 2002 raising demands relating to payment of
minimum wages and other labour related issues. Though there was
a revision of wages in July 2002, the petitioner alleged that even
thereafter the wages paid to her were below the minimum wages
prescribed under law. According to the petitioner, after she
associated herself with the Union and raised the said demands, she
was subjected to harassment by the management. She therefore
filed Complaint (ULP) No.12 of 2002 before the Industrial Court.
The Industrial Court granted an interim order on 9 January 2003
restraining the management from taking any adverse action
against her. However, the said complaint ultimately came to be
dismissed on 29 November 2003 on the ground that the Industrial
Court lacked jurisdiction to entertain the matter.
4. The petitioner further asserted that on 30 November 2003
she reported for duty at about 8:00 a.m., but the Chief Rector, Smt.
Alka Shinde, did not permit her to resume work and orally
terminated her services. It was alleged that such termination was
effected without payment of retrenchment compensation and in
breach of the provisions of Section 25F of the Industrial Disputes
Act. It was also stated that no domestic enquiry was conducted,
despite intervention by the Deputy Labour Commissioner. On these
grounds, the petitioner sought reinstatement in service with
continuity and full back wages.
5. The respondent filed its written statement at Exhibit 8 and
denied all the allegations made by the petitioner. It was specifically
contended that there was no relationship of employer and
employee between the parties and that the petitioner had never
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been formally employed by the respondent institution. According
to the respondent, the hostel facility was managed by the students
themselves and any arrangement for engaging sweepers was made
merely for convenience and not as part of any formal employment
by the respondent. The respondent further relied upon earlier
proceedings initiated under Sections 28(1) and 30(2) of the MRTU
and PULP Act before the Industrial Court, Pune. In those
proceedings, being Complaints (ULP) Nos.7 of 2003 to 17 of 2003,
the Industrial Court had dismissed the claims on 29 November
2003. The respondent contended that the said decision amounted
to a final adjudication on the issues raised by the petitioner. On the
basis of the pleadings of the parties, the learned Labour Court
framed the following issues for determination:
(i) Whether there existed a relationship of employer and
employee between the petitioner and the respondent.
(ii) Whether the petitioner had been illegally terminated from
service.
(iii) Whether the petitioner was entitled to the reliefs claimed in
the reference.
6. In support of her case, the petitioner examined Dr. Anita
Sardar Patil at Exhibit 20 and also entered the witness box herself
at Exhibit 12. Both sides placed several documents on record in
support of their respective contentions. Upon considering the rival
submissions advanced on behalf of the parties and the evidence
available on record, the learned Presiding Officer, First Labour
Court, Pune delivered the judgment and award dated 02 July
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2011, whereby the reference raised at the instance of the
petitioner came to be rejected.
7. Mr. Tapkir, learned Advocate appearing on behalf of the
petitioner, invited attention of this Court to the impugned
judgment and submitted that during the course of the proceedings
the petitioner had sought production of certain documents from
the respondent. These included the vouchers reflecting payment of
salary and the attendance register, which according to the
petitioner were relevant for establishing the existence of a
relationship of employer and employee between the parties. It was
submitted that the respondent employer denied the existence of
such relationship and further took a stand that the documents
sought by the petitioner were not in existence. On the basis of this
stand, the Trial Court initially rejected the application filed by the
petitioner seeking a direction to the respondent to produce the
said documents. It was further submitted that thereafter the
petitioner filed an application seeking permission to lead
secondary evidence on the ground that the original documents
were not in her custody and were within the control of the
respondent. The Trial Court allowed the said application. Pursuant
thereto, the petitioner produced photo-stat copies of the muster
rolls pertaining to the periods from August 1994 to December
1994 and from January 1995 to December 1995. The petitioner
also produced on record a salary voucher dated 01 November
1996 along with a duty list. According to the petitioner, these
documents were proved in evidence during the course of the
proceedings before the Labour Court. Learned Advocate for the
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petitioner further contended that in view of the specific defence
taken by the respondent denying the relationship of employer and
employee, the Labour Court ought to have drawn an adverse
inference against the respondent employer for failure to produce
the relevant records sought by the petitioner. It was submitted that
such documents were in the exclusive possession and control of
the employer. In support of this contention, reliance was placed
upon the judgment of the Supreme Court in R.M. Yellatti v.
Assistant Executive Engineer, reported in (2006) 1 SCC 106.
8. It was also submitted on behalf of the petitioner that during
the pendency of the proceedings the petitioner has already
attained the age of superannuation. In such circumstances, it was
contended that reinstatement is no longer a practical relief.
According to the petitioner, she is therefore entitled to appropriate
monetary compensation in lieu of reinstatement and continuity of
service, and an order directing payment of such compensation
deserves to be passed in her favour.
9. Per contra, Mr. Deshmukh, learned Advocate appearing on
behalf of the respondent employer, opposed the petition and
submitted that the respondent had never employed the petitioner
at any point of time. It was contended that in the ladies' hostel the
students themselves used to make informal arrangements for
engaging domestic help for cleaning purposes. According to the
respondent, any services rendered by the petitioner, if at all, were
not under the supervision, control, or employment of the
respondent institution. Learned Advocate for the respondent
further submitted that the petitioner has failed to place on record
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any cogent evidence to demonstrate that she had rendered
continuous service for a period of not less than one year as
contemplated under Section 25B of the Industrial Disputes Act. It
was also contended that the petitioner has not offered any
satisfactory explanation as to how she came into possession of the
muster rolls and salary vouchers which were sought to be relied
upon as secondary evidence. On the basis of these submissions, it
was contended that no relationship of employer and employee
ever existed between the petitioner and the respondent. It was
further submitted that in the absence of proof of continuous
service as required under Section 25B of the Industrial Disputes
Act, the petitioner cannot claim the protection of the provisions
relating to retrenchment. On these grounds, learned Advocate for
the respondent prayed that the present petition deserves to be
dismissed.
REASONS AND ANALYSIS:
10. I have considered the record and the submissions. The facts
set out by the parties are clear from the pleadings and evidence.
The issue is whether the petitioner was in employment with the
respondent and whether she was wrongly deprived of service and
benefits.
11. In order to appreciate the submissions of the parties, it
becomes necessary to examine the legal principle explained by the
Supreme Court in Anil Mithra v. Sree Sankaracharya University of
Sanskrit (2022) 17 SCC 505 . The judgment explains the meaning
of continuous service under Section 25B of the Industrial Disputes
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Act and the mandatory requirements contained in Section 25F
before termination of a workman.
12. Section 25B explains when a workman is said to be in
continuous service. If a worker is employed without interruption
for a certain period, he is considered to be in continuous service.
Even if there are interruptions due to sickness, authorised leave,
accident, strike, lock-out or temporary stoppage of work, such
interruptions do not break the continuity of service so long as they
are not caused by the fault of the workman. Even if strict
continuous service is not shown, the Act creates a legal
assumption. If the workman has worked for at least 240 days
during the twelve months immediately preceding the date of
termination, the workman is treated as having completed one year
of continuous service.
13. Once such continuous service of one year is established,
Section 25F becomes applicable. This section places certain
mandatory conditions on the employer before terminating the
services of such a workman. First, the employer must give one
month written notice stating the reasons for termination, or pay
wages in lieu of that notice. Second, the employer must pay
retrenchment compensation equivalent to fifteen days average
wages for every completed year of service. These two conditions
must be satisfied before the termination takes effect.
14. The Supreme Court in the above decision has clearly
explained that these requirements are mandatory in nature. If the
employer terminates the service of a workman who has completed
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240 days of work in the preceding year, and does so without
complying with Section 25F, the termination becomes illegal from
the very beginning. In law such termination cannot stand.
However, the Supreme Court has also clarified that even if Section
25F is violated, reinstatement with full back wages does not
automatically follow in every case. The relief must depend on the
facts of each case. The Court may grant reinstatement, or
compensation, or some other appropriate relief depending upon
circumstances such as length of service, nature of employment,
delay in litigation, or superannuation of the workman.
15. Therefore, the main issue becomes one of proof. The Court
must see whether the material on record reasonably establishes
that the petitioner had in fact worked for 240 days in the relevant
year. If that requirement is not proved, the protection of Section
25F would not arise. But if the Court finds that such service is
established on the basis of muster rolls, salary vouchers, and oral
testimony, then the termination without notice and retrenchment
compensation would be contrary to law.
16. Coming to the documentary evidence, it is seen that the
petitioner had initially sought production of certain records from
the respondent. These included the attendance registers and salary
payment vouchers which, according to the petitioner, would show
that she was working in the establishment for several years. The
learned Advocate appearing for the petitioner pressed this request
before the Labour Court and submitted that these documents were
necessary to establish the employer-employee relationship. The
respondent opposed this request and contended that no such
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records existed with them. On that basis the Labour Court, at the
initial stage, rejected the petitioner's request seeking a direction
for production of those documents.
17. After the said rejection, the petitioner filed an application
seeking permission to lead secondary evidence. The ground taken
was that the original records were not in her custody and were
likely to be with the respondent. The Labour Court allowed this
request. Thereafter the petitioner produced photocopies of certain
muster rolls covering the period from August 1994 to December
1994 and another set from January 1995 to December 1995. In
addition, she also produced a salary voucher dated 01 November
1996 and a duty list relating to work in the hostel. These
documents were marked in evidence and the petitioner as well as
another witness entered the witness box and deposed in support of
the documents.
18. In light of the rival submissions, certain legal questions arise
for determination. The first question is whether the secondary
documents produced by the petitioner were rightly admitted in
evidence and whether they can be relied upon. The second
question is whether the evidence on record shows that the
petitioner had rendered continuous service for at least one year so
as to attract the protection available to a workman under the
Industrial Disputes Act. The third question is whether the
respondent can be regarded as the employer exercising supervision
and control over the petitioner's work, and if so whether the
termination of service was effected without complying with the
statutory requirements of Section 25F.
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19. With regard to the first question, the Labour Court exercised
its discretion to allow the petitioner to produce secondary
evidence. The court recorded that the original documents were not
in the custody of the petitioner. The respondent had taken a stand
that such records were not available. In such circumstances the
law permits the court to accept secondary evidence where the
original documents are not accessible to the party relying upon
them. The petitioner produced photocopies of muster rolls and
other documents and supported them by oral testimony. The
Labour Court therefore accepted these documents as proved for
the purpose of the case.
20. It is true that the respondent has questioned the source from
which these documents were obtained. The petitioner has not
placed on record a detailed explanation regarding the manner in
which the copies came into her possession. However, absence of a
perfect explanation does not automatically render the documents
entirely worthless. The muster rolls relate to different time periods
in consecutive years and the salary voucher corresponds to a later
period. When these documents are read together with the oral
testimony of the petitioner describing the nature of her duties and
the length of her service, they indicate that she had been regularly
attending work and receiving payment for the same. It is also
significant that the respondent has not produced any attendance
register, wage record or other material to contradict these
documents. The absence of such records on the side of the
respondent assumes importance.
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21. In these circumstances the Labour Court was justified in
drawing an adverse inference against the respondent. When
relevant records are expected to be in the possession of the
employer and yet are not produced, the court is entitled to
presume that the records, if produced, would not support the
employer's case. The respondent has denied the relationship of
employment and at the same time resisted the production of
records which could clarify the matter. Therefore on a
preponderence of probabilities it does lend support to the
petitioner's version.
22. The next question concerns the requirement of continuous
service under Section 25B of the Industrial Disputes Act. For a
workman to claim protection against retrenchment, it must be
shown that the workman had completed at least one year of
continuous service. This usually means that the workman must
have worked for at least 240 days in the twelve months preceding
the termination. In the present case, the muster rolls covering two
different periods and the salary voucher together suggest that the
petitioner was engaged in work for a substantial duration. Her
testimony that she worked for many years is also supported by the
evidence of another witness. The respondent has not produced any
records to contradict this version. Considering the available
evidence, it appears more probable that the petitioner had indeed
completed the required period of service.
23. The third issue relates to the existence of the employer-
employee relationship. The petitioner has stated that she was
working under the instructions of the Chief Rector and other
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officers. She has described the nature of the work assigned to her
and the place where she performed those duties. The element of
control and supervision is an important indicator of an
employment relationship. The respondent has contended that the
students themselves arranged cleaning services. However, the
evidence on record suggests that the petitioner's work was
connected with the functioning of the hostel and was carried out
under the directions of the authorities managing the hostel. The
documents produced and the testimony given support the
conclusion that her work was regular and supervised.
24. The respondent has relied on the dismissal of the earlier
complaint by the Industrial Court for want of jurisdiction. That
dismissal only indicates that the Industrial Court found that it did
not have jurisdiction under the MRTU and PULP Act. It did not
examine or decide the merits of the employment relationship.
Therefore that dismissal cannot prevent the Labour Court from
examining the dispute when it was referred under the Industrial
Disputes Act.
25. Once it is accepted that the petitioner had rendered the
required period of service and that the relationship of employment
existed, the question of relief arises. The petitioner had initially
sought reinstatement with continuity of service and full back
wages. However, during the pendency of the litigation she has
reached the age of superannuation. In such a situation
reinstatement is no longer practical because the petitioner is no
longer in a position to resume employment. It is well settled that
where reinstatement becomes impracticable due to
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superannuation, the court may grant monetary compensation in
lieu of reinstatement.
26. The petitioner has also claimed full back wages on the basis
that her last drawn wages were Rs.1,500/- per month. The
respondent has not produced any evidence to show that
retrenchment compensation or notice pay under Section 25F was
ever paid. When termination is effected without following the
statutory procedure, the workman is entitled to appropriate relief.
In the present case, the failure of the respondent to demonstrate
compliance with Section 25F supports the petitioner's claim for
monetary relief.
27. In view of the discussion and reasons recorded in the
foregoing paragraphs, the writ petitions are partly allowed.
28. The judgment and award dated 2 July 2011 passed by the
Presiding Officer, First Labour Court, Pune in Reference (IDA)
Nos.620 of 2004, 626 of 2004, 627 of 2004, 621 of 2004, 628 of
2004 and 619 of 2004 is set aside to the extent it rejects the claim
of the petitioner without granting any relief.
29. It is declared that the discontinuation of service of the
petitioner with effect from 30 November 2003 was not in
compliance with the mandatory requirements of Section 25F of the
Industrial Disputes Act, 1947.
30. However, it is noted that during the pendency of the
proceedings the petitioner has already attained the age of
superannuation. In view of this subsequent development,
reinstatement in service is not a practicable relief.
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31. Having regard to the length of service stated by the
petitioner, the nature of employment, the last drawn wages of
Rs.1,500/- per month, and the fact that the termination occurred
in the year 2003, this Court finds it appropriate to award monetary
compensation in lieu of reinstatement and other consequential
benefits.
32. Accordingly, the respondent shall pay to the petitioner a
lump sum monetary compensation of Rs.2,00,000/- (Rupees Two
Lakhs only) in full and final settlement of the dispute.
33. The aforesaid amount shall be paid to each petitioner within
a period of three months from the date of this judgment. In the
event of failure to pay the said amount within the stipulated
period, the amount shall carry interest at the rate of 6% per
annum from the date of this judgment until realization.
34. Rule is made absolute in the above terms. No order as to
costs.
(AMIT BORKAR, J.)
