State Of Gujarat vs Himmatsinh Saburbhai Bariya
2022 Latest Caselaw 63 Guj

     C/LPA/8/2022                                     ORDER DATED: 04/01/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 8 of 2022
          In R/SPECIAL CIVIL APPLICATION NO. 8815 of 2019
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
              In R/LETTERS PATENT APPEAL NO. 8 of 2022
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                         STATE OF GUJARAT
                               Versus
                    HIMMATSINH SABURBHAI BARIYA
==========================================================
Appearance:
MS DHWANI TRIPATHI, ASSISTANT GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2,3
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                        Date : 04/01/2022
                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Heard Ms. Dhwani Tripathi, learned AGP for the applicants.

2. Feeling aggrieved and dissatisfied with the common judgment and order passed in Special Civil Application no. 14096/18 and allied Writ Petitions, the present appeal under Clause 15 of the Letters Patent is directed against the judgment rendered in Special Civil Application no.8815/19.

3. Writ Petition being Special Civil Application no. 8815/19 was filed by the appellants against the judgment and award passed by the

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learned Presiding Officer, Labour Court, Godhra in Reference (T) no.47/02 mainly on the ground that the workman did not work for more than 240 days at any point of time. It was also the case of the appellants that there was no violation of Section 25F, G and H of the Industrial Disputes Act (hereinafter referred to as "the Act"). The learned Single Judge examined the contentions raised by the appellants and relying upon the catena of decisions including the decision of the Full Bench has come to the conclusion that the appellant is an industry as defined under the Act and has dismissed the Writ Petition on the ground that there is breach of Sections 25F, G and H and being aggrieved by the same, the present appeal is filed only in one Writ Petition. Upon inquiry the learned AGP informed this Court that in other matters, the appellant-State has not preferred any Letters Patent Appeal.

4. Ms. Dhwani Tripathi, learned AGP has contended that the common judgment and order passed in other Writ Petitions is distinguishable on facts as far as facts of Special Civil Application no. 8825/19 is concerned. According to Ms. Tripathi, at no point of time, the respondent - workman had worked for 240 days. It was reiterated as contended

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before the learned Single Judge by Ms. Tripathi that the said aspect has been overlooked by the Tribunal as well as the learned Single Judge. On the said singular ground it was contended that the Letters Patent Appeal being meritless deserves to be entertained and allowed.

5. We have perused the observations made by the learned Single Judge and also the contentions raised before the learned Single Judge in the Writ Petition as well as the impugned award passed by the Tribunal. The learned Single Judge has averred thus:-

"12. This brings this Court to the Second issue of the respondent not having proved the completion of 240 days in a particular year. According to the petitioner, this ought to have been regarded by the Labour Court at the time of deciding the reference. This Court notices that the respondent has stepped into the witness box. He had shown his inability to produce appointment letter, Identification Card and Pay Slip. He also was unable to produce any other vindicating document in support of the statement of claim. According to him, he has never been issued any of these documents. Also admitting in the cross examination that none of these documents had been given, and therefore, it was not feasible for the respondent to prove 240 days of employment, as requirement.

The Court therefore held that this onus would shift to the present petitioner which was opponent before the Labour

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Court.

13. In some of the references, by way of documentary evidence, muster roll has been produced but, it was not a continuous muster roll, the truncated version of the same was shown to the Court. This being a vital document, the Court was quite dissatisfied and unhappy as to why such vital documents were not produced, despite a specific direction. It is well laid down law on such aspect in the case of R.M.Yellatti (supra) against the employer for non-production of muster roll and other vital documentary evidence and without any discharge of burden of proof an attempt is made by the workman and he has not been able to produce the documentary evidence, even after issuance of the notice and calling upon the employer.

14. The Division Bench of this Court in the case of Zonal Manager, State Bank of India vs. Modi Rajeshkumar Shantilal, reported in 2018 (3) GLR 2326, was required to consider satisfaction of the continuation of service with 240 days and the Court held thus:-

"6. Having considered the submissions of the learned advocates for the respective parties, the following issues arise for our consideration:

(A) Whether the learned Single Judge was right in his perception in relying on the certificate Exh. 25 and holding that the respondent workman has satisfied requirement of Section 25B(1) and therefore has completed continuous service preceding the date of retrenchment, and therefore there was non-compliance under Section 25-F of the Act. (B) Whether the Industrial Tribunal and in turn the learned Single Judge

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while confirming the award was right in drawing an adverse inference against the appellantemployer for the purposes of holding that the respondent had completed 240 days, as the employer had failed to produce vouchers as ordered below Exh.16.

For our benefit, we reproduce Sections 25B and 25F of the Industrial Disputes Act, 1947:

"Sec.25-B. Definition of continuous service.- For the purposes of this Chapter -

i. a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman; ii.Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-

(a) for a period of one year, if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than

i. one hundred and ninety days in the case of a workman employed below ground in a mine; and ii.two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calender months preceding the date with reference

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to which calculation is to be made, has actually worked under the employer for not less than-

(i) ninety-five days, in the case of workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case.

Explanation :- For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.

Section 25C xxx xxx xxx

Section 25D xxx xxx xxx

Section 25E xxx xxx xxx

Section 25F. Conditions precedent to retrenchment of workmen.- No workman

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employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice,

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette.]"

7. While deciding the issue (A), what needs to be considered is that the respondent workman had specifically made out a case in the Statement of Claim that he had worked from 03.01.1989 to 31.12.1995. For the period from 01.04.1994 to 31.12.1995, he had clearly stated that he had worked for more than 240 days. In addition thereto it was his specific case that he was in continuous service for over a year of service and therefore there was no reason for applying the deeming fiction of 240 days of working days in a period of less than a year.

7.1 Section 25-F of the Industrial Disputes Act,1947 requires the employer to follow the procedure thereunder when a workman is employed in an industry and who has been in continuous service for

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not less than one year. "Continuous service" is defined under Section 25-B of the Act. Section 25- B(1) suggests that the workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness,

2022 C/SCA/14096/2018 JUDGMENT Section 25-B(2) suggests that, when he is not in continuous service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could not have considered the Certificate showing the number of working days as 319, as "that period was not a period preceding 12 months prior to retrenchment". In our opinion, this submission of Shri Desai, is without merit. Continuous service as defined under Section 25-B suggests the entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If for a certain period the employer is in no position to provide work, cessation of such work without the fault of the employee would not be an interruption in service and the employee would be deemed to be in service for such period. It was the case of the respondent workman here, by a positive assertion in the Statement of Claim that not only did he work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995, but that from April 1992 to June 1993 he was in service except for the cessation without his fault, and therefore the case squarely fell within the domain of Section 25-B(1) of the Act. The employer having failed to discharge its burden by producing vouchers though so ordered

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under Exh.18, cannot now be heard to say that the fiction of the employee having worked for a period of 240 days as envisaged under Section 25-B(2) of the Act would apply. Having failed to do so, interruptions need to be ignored and the respondent workman, as observed by the learned Single Judge needs to be treated to be in continuous service without interruption as defined under Section 25- B(1) of the Act.

It is relevant to note one important aspect that Section 25B(1) had been discussed by Apex Court in case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh reported in 2005 (8) SCC page 750. Relevant para 8 of this decision is quoted as under:

"S8. To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less than one year. Sec. 25B of the Act defines continuous service for the purpose of Chapter V- A .SLay -off and Retrenchment. The purport of this section is that if a workman has put in uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lockout or cessation of work, that is not due to any fault on the part of the workman, shall be said to be continuous service for that period. Thus the workman shall be said to be in continuous service for one year i.e. 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25-B. However, the workman must have been in service during the period i.e. not only on the date when he

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actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned not only on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of the Section 25B introduced the fiction to the effect that even if the workman is not in continuous service within the meaning of clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of Sub-section (2). By the legal fiction of sub-section (2) (a)(i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the section postulate that if the workman has put in at least 240 days with his employer, immediately, prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F."

7.2 What is meant by continuous service for the purpose of Chapter VA has been defined under Section 25B.The requisites for treating a person to be in continuous service for the requisite period,in case of Section 25F is that either he should be in uninterrupted service including service which may be interrupted on account of sickness or

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authorized leave etc which is not due to fault of workman or cessation of work for no fault of the workman. If a workman completes continuous service of employment of more than one year as is so established in the present case, on the failure of the employer to discharge the burden adverse inference needs to be drawn. These facts must be reflected clearly in reference to the date of retrenchment with any block of twelve months with reference to continuous service. In the present case the respondent workman has established continuous service on the test of 25(B) and therefore the deeming fiction of completion of 240 days would not set off the fact of the workman being in continuous service for one year including interruptions beyond his control.

7.3 As far as issue (B) is concerned, Shri Desai's contention by relying on decision in the case of Surendranagar (supra) would be of no avail. An application Exh.11 was moved by the respondent workman for production of vouchers from the employer. An order at Exh. 16 was passed. The employer failed to produce such vouchers and therefore did not discharge the burden of proving otherwise. The learned Single Judge as well as the Industrial Tribunal, in our opinion therefore, even on the second ground were right in holding that once the employer had failed to negate the assertion of the employee, by failing to discharge the burden, recourse to the deeming fiction of completion of 240 days would not arise. Adverse inference was rightly drawn by the Industrial Tribunal, on the employer's failure to produce relevant record though directed to do so."

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15. In the instant case also, as can be noticed from the decision of the Court, it is not only the issue of completion of 240 days as required under Section 25(E) of the Act, the Court has specifically specified breach of Section 25(G) and (H) of the ID Act. It is trite law that once there is a breach of Section 25(G) and (H), non-completion of 240 days will pale into insignificance."

6. Even considering the observations made by the Tribunal, it clearly appears that there is breach of Section 25G and H. We are in total agreement with the conclusion arrived at by the learned Single Judge, whereby the learned Single Judge has come to the conclusion that once there is breach of Sections 25G and H, non-compliance of 240 days will be of no consequence.

7. In totality of facts, no interference is called for. The appeal being bereft of any merit deserves to be dismissed and is hereby dismissed. Connected Civil Applications, if any, also stand disposed of.

(R.M.CHHAYA,J)

(NIRAL R. MEHTA,J) Maulik