Gujarat High Court
Sagar Rolling Mills Private Limited vs Ravindrakumar Sadhusharan Patel on 8 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4311 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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SAGAR ROLLING MILLS PRIVATE LIMITED
Versus
RAVINDRAKUMAR SADHUSHARAN PATEL & ANR.
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Appearance:
IG JOSHI(8726) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 08/04/2025
ORAL JUDGMENT
(1) This petition is filed under Articles 226 of the Constitution
of India, challenging the impugned award dated 24.10.2024
passed by the learned Labour Court, Ahmedabad in Reference
(L.C.A.) No.108 of 2017, whereby lump sum compensation of
Rs.2,00,000/- was awarded to the workman in lieu of
reinstatement and back wages.
(2) It is the case of the present petitioner that dispute was
raised by the respondent-workman before the learned Labour
Commissioner, challenging the order of termination wherein it
is claimed that the respondent was working in the Rolling
Department on the post of Operator in the petitioner's
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establishment as a regular employee for the last 12 years and
was receiving the wages of Rs.15,000/- per month. It is stated
by the respondent that he was regularly discharging his duties
without any complaints in the past. There are around 300 other
employees, who are working in the petitioner's establishment
and as the respondent was not receiving the identity card, pay
slip, leave card and was not receiving the leave as per the rule
and despite the overtime was taken, no wages were paid,
according to the respondent, upon raising a demand for the
above benefits, he was illegally terminated by the petitioner
establishment on 26.08.2016.
(2.1) It is claimed by the present respondent that prior to
termination of his service, neither any notice was issued nor
any retrenchment compensation was paid by the petitioner
establishment and thereby the petitioner establishment has
committed violation of the provision of sections 25F, 25G and
25H of the Industrial Disputes Act, 1947 ('the I.D.Act' referred
hereinafter) and therefore, relief of reinstatement with all
benefits were sought before the learned Reference Court. In
response, the petitioner herein appeared and submitted that
the respondent joined the petitioner establishment on
01.02.2005 and had served upto 26.08.2016, thereafter he
himself has abandoned his service. It is submitted by the
petitioner before the learned labour Court that a
communication dated 26.08.2016 was addressed to the
respondent calling upon him to resume his duty, however, only
with a view to grab the money, the false case is filed claiming
the reinstatement to his original position. After considering the
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submissions of both parties and assigning detailed reasons,
the learned Reference Court allowed the Reference and
awarded a lump sum compensation of Rs.2,00,000/- in lieu of
reinstatement and all other benefits, which is subject matter of
challenge before this Court.
(3) Heard the learned advocate Mr.I.G.Joshi for the petitioner.
(4) Learned advocate Mr.Joshi submits that the learned
labour Court has committed a grave error in holding that there
is a violation in section 25F of the I.D.Act. Learned advocate
Mr.Joshi submits that no specific averment has been made
either in the statement of claim or in the examination-in-chief
of the respondent regarding the completion of 240 days of
continuous service, which is a sine qua non for invoking the
provisions of Section 25B of the I.D. Act. In the absence of any
such positive averment, the learned Reference Court
erroneously shifted the onus upon the present petitioner to
disprove the completion of 240 days by the respondent in the
preceding year.
(4.1) Learned advocate Mr.Joshi submits that after recording
the submissions made by both the petitioner and the
respondent, the learned Reference court has passed the final
award of granting lumpsum compensation without assigning
any reasons or recording any findings for concluding the
Reference in favour of the respondent. Learned advocate
Mr.Joshi submits that until the burden is discharged by the
respondent to prove his case by adducing the evidence
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demonstrating the continuity of service, the petitioner herein
cannot be held liable to disprove the fact which has not been
pleaded in the statement of claim.
(4.2) Learned advocate Mr.Joshi submits that the learned
labour Court while shifting the onus on the present petitioner
has committed a grave error in awarding the Reference in
favour of the respondent.
(4.3) In support of his submissions, learned advocate
Mr.Joshi has relied on the decisions rendered by the Apex
Court in the following case:
(1) Regional Manager, S.B.I. vs. Rakesh Kumar
Tewari, reported in (2006) 1 SCC 530
(2) Krishna Bhagya Jala Nigam Ltd vs
Mohammed Rafi, reported in (2009) 11 SCC 522
(3) Range Forest Officer vs S.T. Hadimani,
reported in (2002) 3 SCC 25
(4) Kanubhai Khodabhai Parmar (Civil and
Electric Contractor vs. Makwana Mohanbhai
Motibhai rendered in Special Civil Application
No.4121 of 2019
(5) Having considered the arguments advanced by the
learned advocate Mr.Joshi and perusing the documentary
evidence adduced before the learned Reference Court, it
emerges from the record that, as per the statement of claim
filed by the respondent-employee,he was working as a regular
employee in the Ruling Department in the capacity of an
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Operator. It is stated that he was serving in the said
department for the last 14 years and was drawing monthly
wages of ₹15,000/-. It is further stated that there was no
complaint or irregularity reported in his work, nor was any
notice or warning ever issued by the employer, and that his
past record was unblemished. As against the same, the written
statement filed by the petitioner, which forms part of the
record of the petition, specifically states in paragraph 15 that
the respondent was in service from 01.02.2005 until
26.08.2016 and that on the said date, he had voluntarily
abandoned his service.
(5.1) The only contention raised by the present petitioner is
that no specific averment has been made in the statement of
claim regarding the completion of 240 days of service.
However, on a plain reading of the statement of claim, it
clearly emerges that the respondent has specifically stated
that he was a regular employee and that no irregularity was
ever reported by the employer during his tenure. Moreover,
the petitioner has also admitted in the written statement that
the respondent was in continuous service from 01.02.2005 to
26.08.2016. At this stage, a reference of section 25B of the
I.D.Act is required which is reproduced hereinbelow:
"25B(2). Definition of continuous service.
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--
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(a) for a period of one year, if the workman, during a period
of twelve calendar 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 calendar months preceding the date with
reference 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 a workman employed
below ground in a mine; and (ii) one hundred and twenty
days, in any other case."
(5.2) The section begins by defining the expression
'continuous service' and subsequently specifies certain
particular instances. From the language employed in the
section, it is evident that the term not only refers to
uninterrupted service, but also includes service interrupted
due to the reasons enumerated therein.
(5.3) Section 25B(2) of the I.D.Act begins with the clause,
"where the workman is not in a 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..." Clause (a) of sub-section (2) provides that a
workman who has actually worked under the employer for not
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less than 240 days during a period of 12 months shall be
deemed to have been in continuous service for a period of one
year, irrespective or whether or not he has, in fact, been in
such continuous service.
(5.4) Section 25B(1) and Section 25B(2) operates in
different fields. If it is established that the workman has
worked continuously without interruption, his case would fall
under Section 25B(1) of the Act. However, even if the workman
does not fall within the ambit of sub-section (1), he may still be
considered in continuous service if he fulfills the criteria laid
down under Section 25B(2)(a).
(5.5) For proving that the case of the workman is falling
under section 25B(1) of the I.D.Act, it is not necessary for the
workman to prove that he has worked for 240 days in the year
preceding his termination, as contemplated under Section
25B(2)(a) of the Act.
(6) The case in hand, when the petitioner himself has
admitted in the written statement that the respondent had
served with the petitioner establishment from the date of
appointment, i.e., 01.02.2005, till 26.08.2016, it is sufficient, in
the opinion of this Court, to conclude that the respondent
satisfies ingredient required to prove continuous service. More
particularly, when the respondent has claimed in the
statement of claim that he was a regular employee, a claim
which has not been rebutted by the petitioner and when it is
also stated that no irregularity was ever reported during his
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tenure till the date of termination.
(7) The contention raised by the learned advocate Mr.Joshi
for the petitioner that no averment has been made in the
statement of claim regarding the completion of 240 days by
the respondent appears to be baseless. Merely non-stating of a
specific statement about the 240-day requirement does not
lead to the conclusion that the respondent did not work
continuously especially when the petitioner himself has
admitted that the respondent was in service from 2005 to
2016. As per the say of the petitioner, the respondent himself
had abandoned the service. However, if this argument is
tested in light of the the cross examination of the petitioner's
witness, it emerges that the witness admitted that no
communication was issued to the respondent calling upon him
to resume duty. Though it is contended that such a
communication was addressed, it was admittedly returned with
the endorsement 'left.' The witness has further admitted that
neither any notice was issued nor any departmental
proceedings were initiated against the respondent for
unauthorized absence. In the opinion of this Court, no error has
been committed by the learned Reference Court in deciding
the case of the respondent with regard to illegal termination.
(8) So far as the reliance placed by the learned advocate for
the petitioner on the decision in the case of Regional
Manager (supra) is concerned, if one peruses the facts of the
said case, it appears that respondent therein was employed as
a messenger on a daily wage basis in the Branch of the
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appellant Bank and had served for 87 days in that capacity and
the demand was raised before the learned labour Court under
section 33C(2) of the I.D.Act claiming the amount of Rs.148.74
towards his wages for eight holidays including Sundays, during
the course of his employment. Subsequently, on making the
payment of the said wages, the termination of the year 1982
was challenged in the year 1984 claiming that his service has
been wrongfully terminated, where the Apex Court has held
that in absence of any pleadings regarding alleged violation of
section 25G of the I.D.Act as well as section 25H of the I.D.Act,
it was not open for the learned Tribunal to fly off at a tangent
and conclude that the termination of service of respondent was
invalid because of section 25G of the I.D.Act by the appellant.
(8.1) This Court is of the view that, in the present case, the
respondent has clearly stated in the statement of claim his
status a regular employee as well as the fact of uninterrupted
service till his termination. Therefore, this judgment would not
help in the background of the present case.
(9) This Court has also referred to the decision rendered by
the Apex Court in the case of Krishna Bhagya Jala Nigam
Ltd (supra), wherein the Reference was filed alleging that the
services of the workman were terminated without compliance
of the provisions of Section 25-F of the I.D. Act. The Reference
was allowed in favour of the workman, which was challenged
by the Nigam by way of a writ petition before the High Court.
The learned Single Judge set aside the award passed by the
Labour Court on the ground that there was no evidence before
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the Labour Court to indicate that the workman had ever been
in service with the Nigam.
(10) This Court has also referred the decision rendered by the
Apex Court in the case of Range Forest Officer (supra)
wherein the Apex Court has taken the view that the Tribunal
was not right in placing the onus on the Management without
first determining on the basis of cogent evidence that the
respondent had worked for more than 240 days in the year
preceding his termination. It was the case of the claimant that
he had so worked but this claim was denied by the
appellant. It was then for the claimant to lead evidence to
show that he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is only his own
statement in his favour and that cannot be regarded as
sufficient evidence for any Court or Tribunal to come to the
conclusion that a workman had, in fact, worked for 240 days in
a year.
(11) In the instant case, if the ratio laid down by the Apex
court would apply, then the present petitioner, who is the
employer, did not deny the aspect of work from 2005 to 2016
by the workman. In absence of any denial, this Court is of the
view that no question arise for adducing evidence to prove the
facts, which are admitted by the employer.
(12) This Court has also referred the decision rendered by the
Coordinate Bench of this Court in the case of Kanubhai
Khodabhai Parmar (supra) by the Coordinate Bench of this
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Court wherein the claim was raised by the workman that he
completed 240 days in each year of service and
discontinuance from service was in violation of section 25F of
the I.D.Act which was denied by the employer and on denying
the same, no documentary evidence was laid before the
learned Reference Court to discharge the burden to prove the
continuity of service. In that background, this Court after
referring the various decisions rendered by the Apex Court
where this Court has held that the workman has to prove the
case of continuity of service and only on discharging the
burden onus would be shifted on the employer to rebut the
case of the workman.
(13) In the instant case, the above decision would not be
applicable for the simple reason that the employer himself has
admitted the fact that the workman had worked from 2005 to
2016, and further, there is no allegation of any irregularity in
his service, as claimed by the workman. In this background,
this Court is of the view that none of the decisions relied by the
learned advocate for the petitioner would come to the rescue
hence, the petition deserves to be dismissed.
(14) Resultantly, this petition is dismissed. The impugned
award dated 24.10.2024 passed by the learned Labour Court,
Ahmedabad in Reference (L.C.A.) No.108 of 2017 is hereby
confirmed.
(M. K. THAKKER,J)
M.M.MIRZA
