Gujarat High Court

Ahmedabad Municipal Corporation vs Jasiben Ramjibhai Jadav on 8 April, 2025

                                                                                                                    NEUTRAL CITATION




                             C/SCA/8758/2017                                       JUDGMENT DATED: 08/04/2025

                                                                                                                    undefined




                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 8758 of 2017

                                                           With
                                        R/SPECIAL CIVIL APPLICATION NO. 8850 of 2017

                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MRS. JUSTICE M. K. THAKKER

                        ==========================================================

                                     Approved for Reporting                       Yes           No
                                                                                          ✔
                        ==========================================================
                                               AHMEDABAD MUNICIPAL CORPORATION
                                                             Versus
                                                 JASIBEN RAMJIBHAI JADAV & ANR.
                        ==========================================================
                        Appearance:
                        MR HS MUNSHAW(495) for the Petitioner(s) No. 1
                        MR UT MISHRA(3605) for the Respondent(s) No. 1
                        RULE SERVED for the Respondent(s) No. 2
                        ==========================================================

                          CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                              Date : 08/04/2025

                                                       COMMON ORAL JUDGMENT

1. These petitions are filed challenging the award passed by

the learned Labour Court, Ahmedabad whereby the reference

filed by the workman came to be allowed directing the present

petitioner to reinstate the workman in service with continuity

and 40% back wages as well as cost of Rs.5,000/-.

NEUTRAL CITATION

C/SCA/8758/2017 JUDGMENT DATED: 08/04/2025

undefined

2. It is the case of the present petitioner that the workman

was a daily wager and engaged on temporary and Ad-hoc basis

pursuant to the resolution dated 11.05.1998 passed by the

Corporation. It is the case of the present petitioner that on being

terminated in the year 2002, the dispute was raised after 7 years

before the leaned Labour Court praying for reinstatement with

all consequential benefits and leaned reference Court, after

considering the submissions, has allowed the said reference in

favour of the respondent - workman, which is the subject matter

of challenge before this Court.

3. Heard learned advocate Mr. Munshaw for the Corporation -

Employer and learned advocate Mr. Sachin Solanki in Special Civil

Application No.8850 of 2017 and learned advocate Mr. Mishra in

Special Civil Application No.8758 of 2017 for the respondent -

workman.

4. Learned advocate Mr. Munshaw submits that workman has

filed the reference after the delay of more than six years.

Learned advocate Mr. Munshaw submits that except in the year

2001, when the respondent has worked for 297 days, in none of

the years the workman has completed service of 240 days.

NEUTRAL CITATION

C/SCA/8758/2017 JUDGMENT DATED: 08/04/2025

undefined

Learned advocate Mr. Munshaw submits that though in the cross-

examination it is admitted that the statement regarding making

efforts to get the job at other place was not made in the

statement of claim, the learned reference Court has committed

an error in granting the relief of reinstatement with 40% back

wages.

4.1 In view of the above submissions, learned advocate Mr.

Munshaw prays to set aside the impugned order and allows the

present petition.

5. As against the same, learned advocate Mr. Mishra

appearing for the workman has submitted that the learned

reference Court has assigned detailed reasons, wherein it is

stated that as per the evidence of the employer, the respondent -

workman has been working since 1998 and in the year 1999, 290

days were served, in the year 2000, 295 days were served and in

the year 2001, 297 days were served. Learned advocate Mr.

Mishra submits that as the respondent - workman did not

mention in his statement of claim regarding the efforts to get

the other job, the learned reference Court has granted 40% back

wages and therefore, no error has been committed by the

NEUTRAL CITATION

C/SCA/8758/2017 JUDGMENT DATED: 08/04/2025

undefined

learned reference Court and present petition deserves to be

dismissed.

6. Having considered the arguments made by the learned

advocates for the parties, it emerges from the record that the

respondent - workman of Special Civil Application No.8758 of

2017 had attained the age of superannuation in the year 2019

and the workman of Special Civil Application No.8850 of 2017

expired on 20.02.2024.

6.1 This Court has referred the reasons assigned by the learned

Labour Court, wherein it is stated that the workman has worked

for 183.5 days in the year 1998, 290 days in the year 1999, 295

days in the year 2000 and 297 days in the year 2001. As per claim,

his service was terminated on 19.04.2002 and therefore, as per

the evidence adduced, workman has worked for 14 days in the

year 2002. At this stage, reference of Section 25(B) is required to

be made, which is reproduced hereinbelow:

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

(1) a workman shall be said to be in continuous service for a period if he is, for that period, inuninterrupted 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;

NEUTRAL CITATION

C/SCA/8758/2017 JUDGMENT DATED: 08/04/2025

undefined

(2) 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 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. Explanation.--For the purposes 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 this 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."

6.2 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

NEUTRAL CITATION

C/SCA/8758/2017 JUDGMENT DATED: 08/04/2025

undefined

on account of sickness or 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.

6.3 In above background, this Court is of the view that no error

has been committed by the learned Reference Court in holding

that the respondent has worked continuously with the petitioner

- establishment.

6.4 The next contention with regard to the delay of 7 years in

filing the reference is concerned, this Court has referred the

decision rendered in the case of Shahaji V/s. Executive Engineer,

PWD reported in (2005) 12 SCC 141, wherein it is held as under:

"We have heard counsel for the parties and we have also been taken through the Judgment of this Court reported in Ajaib Singh v. Sirhind Co-op. Nedungadi Bank Ltd. v. K.P. Madhavankutty , and Sapan Kumar Pandit v. U.P. Electricity Board . Having gone through the Judgments we have no doubt that the Judgment of this Court in Ajaib Singh's case lays down the law correctly. In the instant case there was no ground of delay urged by the Management. Moreover, even if there was delay in making the reference to Labour Court, if it came to the conclusion that he termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of the delay. In such cases the award of back wages may either be not permitted, or curtailed. In Nedungadi Bank's Case what was challenged before

NEUTRAL CITATION

C/SCA/8758/2017 JUDGMENT DATED: 08/04/2025

undefined

the High Court was the Order making the reference. That was not a case where the Labour Court refused to entertain the dispute on the ground of delay. Having regard to the clear position in law we are left with no option but to allow the is Appeal and set aside the Judgment and Order of the High Court."

6.5 Considering the said ratio, this Court is of the view that

where termination is found to be illegal, then appropriate relief,

moulding the reinstatement into the lump-sum compensation, is

the only option, which has been exercised by the learned

Reference Court. In that background, this Court does not find any

infirmity in the decision rendered by the reference Court.

6.6. In view of the fact that now award of the reinstatement

cannot be implemented due to attaining the age of

superannuation of workman, this Court deems it fit to mould the

relief of reinstatement with back wages by awarding the lump-

sum compensation of Rs.1,50,000/- to each workman.

7. Resultantly, this petition is disposed of.