Gujarat High Court
State Of Gujarat vs Miraben Maheshbhai Barde on 16 April, 2025
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C/SCA/5778/2024 JUDGMENT DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5778 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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STATE OF GUJARAT & ANR.
Versus
MIRABEN MAHESHBHAI BARDE
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Appearance:
MS SURBHI BHATI, ASST. GOVERNMENT PLEADER for the Petitioner(s)
No. 1,2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 16/04/2025
ORAL JUDGMENT
1. This petition is filed under Articles 226 and 227 of the
Constitution of India, challenging the award dated
03.01.2013 passed by the learned Labour Court, Valsad,
in Reference (LCV) No.33 of 2018, whereby the learned
Labour Court directed the present petitioner to reinstate
the respondent with 50% back wages along with
consequential benefits
2. It is the case of the petitioner that the Reference was
filed before the learned Labour Court, claiming that the
respondent has been working with the petitioner
department for the past nine years and was receiving
monthly wages of Rs.9,000/. That the respondent was
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C/SCA/5778/2024 JUDGMENT DATED: 16/04/2025
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terminated on 16.06.2016 without following the
mandatory provisions of the Industrial Disputes Act, 1947
(hereinafter referred to as 'the I.D. Act'), which is the
subject matter of challenge before the learned Labour
Court.
3. It is contended by the petitioner before the learned
Reference Court that though in the statement of claim
the tenure of service is mentioned of nine years,
however, during the cross examination of the workman, it
is admitted that the work of five years was done by the
respondent workman. It is further contended by the
petitioner before the learned Reference Court that,
except in one year, in none of the year he completed the
prime requirement of completion of 240 days under
section 25 B of the I.D.Act. The learned Reference Court
after considering the submissions of both the parties has
awarded the Reference in favour of the respondent,
which subject matter of challenge before this Court.
4. Heard the learned AGP Ms.Surbhi Bhati for the State and
though endorsement on the cause list shows that
respondent is served, no one is appear either in-person or
through an advocate to represent the respondent.
5. Learned AGP Ms.Bhati submits that the learned
Reference Court has committed an error in drawing an
adverse inference for non-production of the muster roll
and wage register, without considering the fact that,
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pursuant to the order passed in production application
filed below Exhibit 11, the attendance sheet was
produced below Exhibit 30. Learned AGP Ms.Bhati
submits that according to the said attendance sheet, the
respondent had not completed 240 days of work in any
given year, except in one year. Learned AGP Ms.Bhati
submits that despite this, the learned Reference Court
awarded the Reference in favour of the respondent,
without properly considering the said material, and
therefore, the impugned award is required to be set aside
and the petition deserves to be allowed.
6. Having considered the arguments made by the learned
AGP Ms.Bhati and the reasons assigned by the learned
Reference Court, it emerges that the learned Reference
Court has believed the case of the respondent on the
basis of the cross examination of the witnesses, wherein
the workman has admitted that he worked for five years.
It was contended by the workman during the course of
evidence that no any identity card nor any appointment
order was issued at the time of his appointment.
Accordingly, an application below Exhibit 11 was filed in
addition to the evidence of the workman. The said
application was allowed, and the petitioner was directed
to produce the wage register, muster roll, etc. However,
only the rojmel/rojkam was produced below Exhibit 30/1,
and the affidavit was filed below Exhibit 40. Apart from
the same, neither any explanation was offered for the
non-production of the documents, nor any other
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documents were produced.
7. In addition to the above, during the evidence recorded
before the learned Reference Court, the witness of the
present petitioner has admitted that the respondent was
working with the petitioner department. Since the
production application was allowed in favour of the
respondent but was not complied with, the learned
Reference Court was justified in drawing an adverse
inference and passing the order in favour of the
respondent.
8. At this stage, this Court has referred the decision of the
Apex Court rendered in the case of R.M. Yellatti vs The
Asst. Executive Engineer, reported in (2006) 1 SCC
106 is required to be referred, wherein it is held by the
Apex Court in the above case that the provisions of
the Evidence Act in terms would not apply in the
proceedings under section 10 of the Industrial Disputes
Act. However, applying general principles and on reading
the judgments, it was held 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 order of termination. There will also be no
receipt or proof of payment. Thus in most cases, the
workman can only call upon the employer to produce
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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.
9. As this Court does not find any infirmity in the impugned
judgment, this petition deserves to be dismissed, being
devoid of merits.
10. Resultantly, this petition is dismissed. The award
dated 03.01.2013 passed by the learned Labour Court,
Valsad, in Reference (LCV) No.33 of 2018 is hereby
confirmed.
(M. K. THAKKER,J)
M.M.MIRZA
