Gujarat High Court
Hemang Jitendrakumar Patel vs Cfo Cum Incharge M.D on 25 June, 2024
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C/SCA/9114/2024 ORDER DATED: 25/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9114 of 2024
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HEMANG JITENDRAKUMAR PATEL
Versus
CFO CUM INCHARGE M.D & ANR.
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Appearance:
KEVAL H MAHARAJA(9062) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 25/06/2024
ORAL ORDER
1. Present petition is filed by the petitioner under Article 226
of the Constitution of India for the following reliefs.
"A. Be pleased to allow this petition.
B. Your Lordships be pleased to quash and set aside the
award dated 06.01.2023 passed by the learned
Presiding Officer of Labour Court No.5 at Ahmedabad
in Reference (T) Case No. 615 of 2015 and remitted to
the same before the learned Labour Court for
reconsideration and fresh decision in accordance with
law in the interest of justice.
C. Your Lordships be pleased to reinstate the present
petitioner in the respondent No.1 with the all benefits
in the interest of justice.
D. Be pleased to grant any such further relief as may be
deemed fit in the interest of justice."
2. Heard learned counsel appearing for the petitioner.
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Perused the material on record.
3. This Court has considered the averments made in the
petition and the submissions canvassed by the learned counsel
appearing for the petitioner and also gone through the impugned
award passed by the Labour Court more particularly the
observations made in para-14.1 onward. The Labour Court, after
considering the evidence on record, has reached to the
conclusion that since there was neither the documentary
evidence nor even the deposition of the witness, the petitioner
has not proved the fact that he had completed for more than 240
days in each calendar year and even in last three preceding
years and he has not produced cogent evidence to that effect
and, therefore, the Labour Court has not granted such benefit
under Section 25(F) of the ID Act.
4. It is worthwhile to refer to the decision of this Court in the
case of State of Gujarat Vs. Thakore Moghjiji Virchandji in Special
Civil Application No.2262 of 2021 dated 27.04.2022 wherein the
Coordinate Bench of this Court has held and observed in para 4
as under:-
"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
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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
Rajasthan : 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 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. It is worthwhile to refer to the decision of the Hon'ble
Supreme Court in the case of Range Forest Officer Vs. S. T.
Hadimani reported in AIR 2002 SC 1147. The relevant head
note of the decision are as under:-
"Industrial Disputes Act, (14 of 1947), Ss 25F, 10 -
Retrenchment compensation - Termination of services
without payment of - Dispute referred to Tribunal - Case of
workman / claimant that he had worked for 240 days in a
year preceding his termination - Claim denied by
Management - Onus lies upon claimant to show that he had
in fact worked for 240 days in a year - In absence of proof of
receipt of salary or wages or record of appointment, filing of
an affidavit by workman is not sufficient evidence to prove
that he had worked for 240 days in a year preceding his
termination."
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6. It is further beneficiary that this view is reiterated by the
Coordinate Bench of this Court in the case of Mehsana
Nagarpalika thro Chief Officer Vs. Ashwinkumar Babulal Barot in
Special Civil Application No.19430 of 2018 and allied matter
dated 02.02.2024 wherein the Court has referred to and relied
upon the decision of the Hon'ble Supreme Court in the case of R.
M. Yellatti vs. Asst. Executive Engineer reported in 2006
(1) SCC 106 in para 7.4 which reads as under:-
"7.4 In light of above discussion, if we peruse the decisions
relied upon by the learned advocate for the workman, in
case of R. M. Yellatti (supra), the Hon'ble Supreme Court
held as under;
"12. 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 u/s. 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 earner, 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
(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
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 nonproduction
of muster rolls per se without any plea of suppression by
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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 Art. 226
of the Constitution of India 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.
13. Now applying the above decision to the facts of the
present case, we find that the workman herein had stepped
in the witness box. He had called upon the management to
produce the nominal muster rolls for the period
commencing from 22.11.1988 to 20.06.1994. This period is
the period borne out by the certificate (exhibit W1) issued
by the former Asstt. Executive Engineer. The evidence in
rebuttal from the side of the management needs to be
noticed. The management produced five nominal muster
rolls (NMRs), out of which 3 NMRs, exhibit M1, exhibit M2
and exhibit M3, did not even relate to the concerned
period. The relevant NMRs produced by the management
were exhibit M4 and exhibit M5, which indicated that the
workmen had worked for 43 days during the period
21.01.1994 to 20.02.1994 and 21.03.1994 to 20.04.1994
respectively. There is no explanation from the side of the
management as to why for the remaining period the
nominal muster rolls were not produced. The labour court
has rightly held that there is nothing to disbelieve the
certificate (exhibit W1). The High Court in its impugned
Judgement has not given reasons for discarding the said
certificate. In the circumstances, we are of the view that
the division bench of the High Court ought not to have
interfered with the concurrent findings of fact recorded by
the labour court and confirmed by the learned single judge
vide order dated 7.06.2000 in writ petition no. 17636 of
2000. This is not, therefore, a case where the allegations of
the workman are founded merely on an affidavit. He has
produced cogent evidence in support of his case. The
workman was working in SD-1, Athani and exhibit W1 was
issued by the former Asstt. Executive Engineer, Hipparagi
Dam Construction Division No. 1, Athani591304. In the
present case, the defence of the management was that
although exhibit W1 refers to the period 22.11.1988 to
20.06.1994, the workman had not worked as a daily wager
on all days during that period. If so, the management was
duty bound to produce before the labour court the nominal
muster rolls for the relevant period, particularly when it was
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summoned to do so. We are not placing this Judgement on
the shifting of the burden. We are not placing this case on
drawing of adverse inference. In the present case, we are
of the view that the workman had stepped in the witness
box and his case that he had worked for 240 days in a
given year was supported by the certificate (exhibit W1). In
the circumstances, the division bench of the High Court had
erred in interfering with the concurrent findings of fact.
14. Before concluding, we would like to make an
observation with regard to cases concerning retrenchment/
termination of services of daily waged earners, particularly
those who are appointed to work in Government
departments. Daily waged earners are not regular
employees. They are not given letters of appointments.
They are not given letters of termination. They are not
given any written document which they could produce as
proof of receipt of wages. Their muster rolls are maintained
in loose sheets. Even in cases, where registers are
maintained by the Government departments, the
officers/clerks making entries do not put their signatures.
Even where signatures of clerks appear, the entries are not
countersigned or certified by the appointing authorities. In
such cases, we are of the view that the State Governments
should take steps to maintain proper records of the
services rendered by the daily wagers; that these records
should be signed by the competent designated officers and
that at the time of termination, the concerned designated
officers should give certificates of the number of days for
which the labourer/daily wager has worked. This system will
obviate litigations and pecuniary liability for the
Government."
7. It is also worthwhile to refer to the decision of this Court in
the case of State of Gujarat thro Dy. Executive Engineer Vs.
Balabhai Mangalbhai Solanki and others in Special Civil
Application No. 12429 of 2012 dated 22.12.2023 wherein the
Court has held and observed in para 3.6 as under:-
"3.6 ......... the respondent workman has not completed 240
days in any of the year. As per the ratio of Hon'ble Apex
Court reported in 2002 (3) SCC 25 between Range Forest
Officer vs. S. T. Hadimani, the onus of proof lies on the
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concerned workman to move before the Labour Court by
leading evidences that he had completed 240 days.
However, in the present case the respondent workman has
failed to prove the same and therefore the judgment and
award of the Labour Court is bad in law and is required to
be quashed and set aside."
8. In view of the above facts and considering the decisions of
the Hon'ble Supreme Court as well as this Court, I am of the
opinion that the Labour Court has not committed any error of law
and facts while passing the impugned award. I do not find any
illegality and infirmity in the impugned award passed by the
Labour Court. Hence, the petition is devoid of merits and the
same is required to be dismissed. Accordingly, the petition
stands dismissed. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
