Gujarat High Court
State Of Gujarat vs Joshi Tarunkumar Jagdishbhai on 28 July, 2021
Bench: A.S. Supehia
C/SCA/12458/2020 ORDER DATED: 28/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12458 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 12458 of 2020
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STATE OF GUJARAT
Versus
JOSHI TARUNKUMAR JAGDISHBHAI
=============================================
Appearance:
MR DHARMESH DEVNANI, ASST. GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1
MR ND SONGARA(2198) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
=============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/07/2021
COMMON ORAL ORDER
Rule. Learned advocate Mr.N.D. Songara waives service
of notice of rule for the respondent No.1.
2. By way of present petition under Article 226 of the
Constitution of India, the petitioner - State of Gujarat has
challenged the award and judgment dated 21.09.2019 passed
in Reference (LCP) No.13 of 2012 passed by the Labour Court,
Palanpur, whereby the Labour Court has held termination of
the respondent No.1 as illegal and has further directed the
petitioner to reinstate the respondent No.1 to his original post
with continuity of service.
3. Mr.Dharmesh Devnani, learned Assistant Government
Pleader appearing for the petitioner - State, has submitted that
the Labour Court has not appreciated the fact that the
respondent-workman has not worked for a continuous period
of 240 days in any year of service. It is further submitted that
the respondent has also not adduced any evidence that he was
C/SCA/12458/2020 ORDER DATED: 28/07/2021
working with the petitioner since 1996. It is further submitted
that the respondent No.1 workman was terminated in the year
1998 and reference was filed in the year 2012. It is submitted
that since there was no evidence led by the respondent No.1 of
his continuous work, the impugned award and judgment is
required to be quashed and set aside.
4. Per contra, learned advocate Mr.N.D. Songara, appearing
for the respondent-workman, has submitted that the award
passed by the Labour Court may not be disturbed as the
petitioner had not led any evidence and the workman was
terminated for violation of the provisions of Section 25(f) of the
Industrial Disputes Act, 1947 (ID Act). It is submitted by
Mr.Songara that in fact, as observed by the Labour Court, no
notice was issued to the respondent-workman under the
provisions of Section 25(f) of the ID Act. Thus, he has
submitted that the award of the Labour Court may not be
interfered with.
5. This Court has perused the documents as pointed out by
the learned advocates for the respective parties.
6. It is the case of the present petitioner that in fact, the
respondent-workman had voluntarily left the services and he
was engaged only for seasonal work. The Court has perused
the findings of the Labour Court as well as the facts narrated
therein. It appears that the respondent workman was engaged
temporarily as Chowkidar / Wireless Operator and there is no
evidence produced with regard to his actual service of 240
days before the Labour Court. It was specifically contended
before the Labour Court that from the year 2009 to 2010, the
C/SCA/12458/2020 ORDER DATED: 28/07/2021
respondent workman had worked for 201 days, from the year
2010 to 2011, he had worked for 232 days and from the year
2011 to 2012, he had worked for 197 days. The Labour Court,
on the statement made on the affidavit by the workman has
held that he has actually worked for 240 days. The Apex Court
in the case of Bhavnagar Municipal Corporation Etc. Versus
Jadeja Govubha Chhanubha, 2014 (16) SCC 130 has held thus:
"It is fairly well-settled that for an order of termination of
the services of a workman to be held illegal on account of
non-payment of retrenchment compensation, it is
essential for the workman to establish that he was in
continuous service of the employer within the meaning of
Section 25B of the Industrial Disputes Act, 1947 . For the
respondent to succeed in that attempt he was required to
show that he was in service for 240 days in terms of
Section 25B(2)(a)(ii). The burden to prove that he was in
actual and continuous service of the employer for the
said period lay squarely on the workman. The decisions of
this Court in Range Forest Officer V/s. S.T. Hadimani
(2002) 3 SCC 25, Municipal Corporation, Faridabad V/s.
Siri Niwas (2004) 8 SCC 195, M.P. Electricity Board V/s.
Hariram (2004) 8 SCC 246, Rajasthan State Ganganagar
S. Mills Ltd. V/s. State of Rajasthan & Anr. (2004) 8 SCC
161, Surendra Nagar District Panchayat and Anr. V/s.
Jethabhai Pitamberbhai (2005) 8 SCC 450, R.M. Yellatti V/
s. Assistant Executive Engineer (2006) 1 SCC 106
unequivocally recognise the principle that the burden to
prove that the workman had worked for 240 days is
entirely upon him. So also the question whether an
adverse inference could be drawn against the employer
in case he did not produce the best evidence available
with it, has been the subject-matter of pronouncements
of this Court in Municipal Corporation, Faridabad V/s. Siri
Niwas (supra) and M.P. Electricity Board V/s. Hariram
(supra), reiterated in Manager, Reserve Bank of India,
Bangalore V/s. S. Mani (2005) 5 SCC 100. This Court has
held that only because some documents have not been
produced by the management, an adverse inference
cannot be drawn against it."
Thus, the burden was on the respondent-workman to
prove that he has actually worked for 240 days and for three
years when the petitioner had specifically denied and produced
C/SCA/12458/2020 ORDER DATED: 28/07/2021
the evidence denying his employment for 240 days. Thus, the
award of the Labour Court, being not in conformity of the law,
is required to be quashed. Furthermore, a specific contention
was raised by the petitioner that the respondent-workman had
voluntarily left his services. The Labour Court has held that,
even if the workman has voluntarily left the services, it was
incumbent upon the petitioner to issue notice for his
absenteeism. In the considered opinion of this Court, the
Labour Court has fallen in error by observing that though the
respondent-workman had left his job voluntarily, still, the
petitioner was required to issue notice to him asking for re-
joining his work in absence of finding of his employment for
240 days in three years. Thus, this is the case of voluntarily
abandonment of the work by the workman and the Labour
Court, without examining such fact, has held that the workman
was actually terminated from service in violation of section 25F
of the I.D. Act. Hence, the impugned award is required to be
set aside.
7. In this view of the matter, the writ petition succeeds. The
impugned award and judgment dated 21.09.2019 passed in
Reference (LCP) No.13 of 2012 passed by the Labour Court,
Palanpur is hereby quashed and set aside. Rule is made
absolute.
8. In view of the disposal of the main matter, the civil
application also stands disposed of accordingly.
Sd/- .
(A. S. SUPEHIA, J)
dolly
