Gujarat High Court
State Of Gujarat vs Thakore Moghjiji Virchandji on 27 April, 2022
Bench: Biren Vaishnav
C/SCA/2262/2021 JUDGMENT DATED: 27/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2262 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
THAKORE MOGHJIJI VIRCHANDJI
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Appearance:
MR.KRUTIK PARIKH, AGP for the Petitioner(s) No. 1,2
MR ANKUR Y OZA(2821) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 27/04/2022
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Ankur Oza learned
advocate waives service of notice of Rule on behalf of
the respondent no.1.
2. With the consent of learned advocates for the
C/SCA/2262/2021 JUDGMENT DATED: 27/04/2022
respective parties, the petition is taken up for final
hearing.
3. Challenge in this petition under Article 226 of the
constitution of India is to the award of the Labour
Court dated 16.01.2020, by which, the Labour Court
has awarded reinstatement with full back-wages to
the respondent-workman. The award of the Labour
Court would indicate that the respondent-workman
had filed a statement of claim stating that he had
worked for over a period of 10 years as a workman
with the petitioner and was removed from service on
01.09.1999 without following the procedure under
Section 25F of the Industrial Disputes Act ('the Act'
for short). A written statement was filed by the
petitioner at Exh.11 denying that the workman had
worked for period of 240 days in each year of service.
It was their case that a notice of 20.05.1999 was
given paying compensation and therefore there was
no violation of provisions of Section 25F of the Act.
Perusal of the award would indicate that the
employer-petitioner herein had produced details of
C/SCA/2262/2021 JUDGMENT DATED: 27/04/2022
the attendance of the petitioner at mark-16/1 upto
1996. The Labour Court found that in the year 1996
the respondent-workman had completed 109 days. At
mark 16/2 and 16/3 , a notice was produced showing
that 25 workmen were issued notices of retrenchment
and compensation was paid. On examining these
documents, the Labour court found that except for
producing the attendance sheets for the years 1994 to
1996, nothing was produced on record to show that
the petitioner had not worked for the years 1996 to
1999. In fact, from the stand of the petitioner itself
who had pleaded that they had given retrenchment
notice in the year 1999, the Labour Court on
examination of marks 16/2 and 16/3 found that all the
25 workmen to whom retrenchment notices were
issued, the name of the respondent-workman did not
figure in the list. The Labour Court therefore held
that apart from not being able to dislodge the claim of
the respondent that he had worked for a period of 240
days in each year of service and on the basis of the
notice of 20.05.1999 and the documents at mark 16/1
C/SCA/2262/2021 JUDGMENT DATED: 27/04/2022
and 16/2 which did not include the name of the
petitioner, the Labour court awarded reinstatement
with full back-wages.
4. Mr.Krutik Parikh would rely that a decision of the
supreme Court in a case of State of Uttarakhand
and others v. Sureshwati reported in (2021) 3 SCC
108, wherein, in para 26, the Supreme Court after
referring to the decision in case of Bhavnagar
Municipal Corporation v. Jadeja Govubha
Chhanubha has held as under:
"26. A division bench of this Court in Bhavnagar
Municipal Corpn. v. Jadeja Govubha Chhanubha11 held
that :
"7. 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 25-B 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 25-B(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.T. Hadimani, Municipal Corpn., Faridabad v. Siri
Niwas, M.P. Electricity Board v. Hariram, Rajasthan
State Ganganagar S. Mills Ltd. v. State of
Rajasthan15,: 2004 SCC (L&S) 1055] ,
Surendranagar District 11 (2014) 16 SCC 130. 12
(2002) 3 SCC 25. (2004) 8 SCC 195. (2004) 8 SCC
246. (2004) 8 SCC 161. Panchayat v. Jethabhai
C/SCA/2262/2021 JUDGMENT DATED: 27/04/2022
Pitamberbhai, and R.M. Yellatti v. Executive
Engineer 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 Corpn., Faridabad v. Siri Niwas and
M.P. Electricity Board v. Hariram [M.P. Electricity
Board v. Hariram, , reiterated in RBI v. S. Mani18.
This Court has held that only because some
documents have not been produced by the
management, an adverse inference cannot be drawn
against it."
5. The position of law cannot be disputed, however, a
perusal of the award of the Labour Court would
indicate that the employer had produced evidence in
terms of the attendance sheet at mark 16/1 only upto
year 1996. From 1996 to 1999, no attendance
registers were produced and when they were
produced and examined in conjunction with the
documents at mark 16/2 and 16/3 i.e. the list of
workmen retrenched together with the notice of
retrenchment, the name of the respondent-workman
was missing, despite the case of the petitioner being
that the respondent was retrenched. Based on this
evidence therefore, the finding arrived at by the
Labour Court cannot be faulted.
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6. Perusal of the award would indicate that the
termination of the year 1999 was challenged in the
year 2009. At one stage, as rightly submitted by the
learned AGP Mr.Krutik Parikh, the Labour Court did
observe that due to the delay, back-wages and
reinstatement was denied to the respondent
workman. However, in the operative part of the
order, the Labour Court proceeded to award full back-
wages.
7. Due to the delay of 10 years in raising the reference,
the award of the Labour Court is modified.
Reinstatement of the respondent workman stands
confirmed. Award insofar as it grants full back-wages
is set aside and the respondent is denied back-wages.
8. Petition is partly allowed. Rule is made absolute to
the aforesaid extent.
(BIREN VAISHNAV, J)
ANKIT SHAH
