Gujarat High Court
M/S. Sonil Ventil Fabrik vs Lakshmiben Devjibhai Rathod on 24 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19968 of 2023
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 19968 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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M/S. SONIL VENTIL FABRIK
Versus
LAKSHMIBEN DEVJIBHAI RATHOD & ANR.
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Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No. 1
AAKASH D MODI(7449) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 24/04/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Modi
waives service of Rule on behalf of the respondent No.1.
2. The present petition is filed under Article 226 of the
Constitution of India thereby challenging the order
passed by the learned labour court at Jamnagar in
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Reference IT No.92 of 2017 dated 31.03.2023 by which
the learned reference court has allowed the reference
filed by the respondent workman by granting the relief
of reinstatement and with the direction to pay the back
wages of Rs.2,000/- from 15.02.2017 per month till the
reinstatement.
3. It is the case of the present petitioner that reference
came to be filed by the respondent workman claiming
that she was wrongly terminated on 03.12.2016 after
serving for three years as a permanent employee as well
as despite completion of 240 days per year. On being
referred the dispute to the learned labour court, the
statement of claim came to be filed, against which the
petitioner has filed the written statement. The
application below Exh.12 came to be filed on 25.07.2018
seeking production of documents being attendance
register, salary register, form No.3 A of Provident Fund
Scheme and ESI related documents. The present
petitioner filed a reply and the learned labour court has
passed an order allowing the application on 23.12.2019
directing the present petitioner to produce the
documents as sought for. As there were two references,
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one which is filed by the daughter and the present
reference is filed by the mother and in both the cases,
dispute was identical in nature therefore, petitioner
relied on the documents produced before the learned
labour court below Exh.21 which was filed in the case of
mother being reference case No.93 of 2017 which was
heard alongwith the present reference being Reference
IT No.92 of 2017. Reliance was placed on the member
details of the employees provident fund online portal
and form 3A suggesting the account number of the
present respondent to establish that the date of
termination is wrongly stated, as the respondent has
worked up to 15.02.2017 and thereafter, abandoned
from the service. Learned Presiding Officer, after
considering the evidence adduced has awarded the
reference in favour of the respondent, which is subject
matter of challenge before this Court.
4. Heard learned advocate Ms.Megha Jani for the
petitioner and learned advocate Mr.Akash Modi for the
respondent.
5. Learned advocate Ms.Jani submits that learned labour
court failed to appreciate the attendance register and
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the salary register produced below Exh.21 in the case of
Reference IT No.93 of 2017 suggesting that the work
which was done by the respondent workman was only
for the period from 01.04.2016 till 17.02.2017 and in
these days the respondent did not complete the
requirement of 240 days to establish the continuity of
services. It is submitted by the learned advocate Ms.Jani
that the member details available on online portal of the
employee's provident fund organization suggests that
the respondent workman has joined on 01.04.2016 and
as per form 3 A prepared under the scheme name of
claimant also records the entry only from April, 2016
which suggests that the claim made by the workman
having worked for past three years is false and
concocted. It is submitted by the learned advocate
Ms.Jani that the learned labour court has committed an
error in holding that the petitioner has worked for 240
days in the preceding year by counting the days of
holidays. From the record even if these holidays were
included in the working days of the respondent, then
also indisputably this would come to 223 days which is
less than 240 days.
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6. It is submitted by the learned advocate Ms.Jani that in
the statement of claim, it is alleged that the respondent
workman was terminated orally on 03.12.2016.
However, attendance register produced before the
learned labour court falsifies the case and concluded
that the workman has worked up to 17.02.2017,
therefore, for the purpose of computing the total number
of continuous service for the preceding year as per the
provision of section 25(B) of the ID Act would be from
February, 2016 to January, 2017 the respondent did not
complete 240 days. Learned advocate Ms.Jani submits
that learned labour court has committed an error in
drawing the adverse inference to believe the case of the
respondent that workman has completed 240 days as the
petitioner did not produce the documentary evidence of
past three years as the case of the present petitioner
was from the beginning that the respondent worked
from 01.04.2016 till 17.02.2017. Learned advocate
Ms.Jani submits that by misleading the court learned
labour court has granted the relief of reinstatement with
back wages of Rs.2,000/- per month. Learned advocate
Ms.Jani submits that learned labor court has also
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committed an error in holding that the petitioner has
violated section 25(g) and 25(h) of the ID Act on
presuming that as other employees are working, the
present respondent was terminated by adopting unfair
labour practice. Learned advocate Ms.Jani submits that
when the respondent herself has abandoned the work,
no question arises for violation of section 25(g) and
25(h) of the ID Act. In that background learned advocate
submitted to set aside the impugned order and to allow
the present petition.
7. As against the same, learned advocate Mr.Modi
appearing for the respondent has submitted that the
present respondent was paid monthly wages and
completed 240 days in each preceding year. The
petitioner company has not issued any appointment
letter, salary slip, vouchers to the workman, therefore,
to establish the case of the respondent workman,
application below Exh.12 was filed seeking production of
documents like the muster roll, attendance register for
the period from 01.01.2014 to 31.12.2016. Though the
said application was ordered in favour of the present
respondent, the documents of one year has been filed,
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therefore, learned labour court has rightly drawn the
adverse inference as per the decision of Apex Court in
the case of Director Dir.,Fisheries Terminal Division
vs Bhikubhai Meghajibhai Chavda reported in AIR
2010 SC 1236. Learned advocate Mr.Modi submits
that during the cross-examination of the witness of
petitioner company, it is specifically admitted that the
respondent workman has worked for four years,
therefore, the learned labour court has rightly
disbelieved the case of the present petitioner regarding
working for one year with the petitioner employer.
Learned advocate Mr.Modi submits that the learned
labour court has added the days of holidays while
calculating the service of 240 days and as per the
decision rendered by the Apex Court in the case of
Workmen Of American Express International vs
Management Of American Express reported in 1984
4 SCC 71. It is submitted by the learned advocate
Mr.Modi that after appreciating the oral as well as
documentary evidence, learned reference court has
allowed the reference in favour of the respondent.
Learned advocate Mr.Modi submits that so far as the
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breach of provision of section 25(g) and 25(h) of the ID
Act is concerned, as per the law laid down by the Apex
Court, the workman is not required to prove that he or
she has worked for 240 days during the 12 months
preceding the termination of the service. It is sufficient
for the workman to plead and prove that while affecting
retrenchment the employer has violated the rule of last
come first go without tangible reasons and section 25(h)
of the of the ID Act casts duty upon the employer to give
an opportunity to retrench the workman to offer
themselves for reemployment on the basis of
preferential basis. After terminating the service of the
present respondent workman, new workman have been
appointed and engaged by the petitioner company
without following the procedure prescribed under the
provisions of section 25(g) and 25(h) of the ID Act and
Rule 81 of the Gujarat Industrial Disputes Rule, 1966.
Therefore, learned reference court has rightly concluded
the reference in favour of the respondent.
8. It is submitted by the learned advocate Mr.Modi that
despite ample opportunities were provided to produce
the evidence in reference No.92 of 2017 the petitioner
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fails to discharge the onus and to comply with the
directions issued in the production application and the
new documents which are produced in the writ court
cannot be considered to fill up lacuna and plugging the
loopholes, as the same would be detrimental and
prejudicial to the workman. On ascertaining the non
gainful employment in other establishment, learned
reference court has rightly awarded the back wages of
Rs.2,000/- per month along with relief of reinstatement
and therefore, no interference in required.
9. Learned advocate Mr.Modi submits that once the
workman asserts that he is not gainfully employed, the
onus would shift on the employer positively and it would
be for the employer to prove that the employee was a
gainfull employed. Relying on the decision rendered by
the Apex Court in the case of Deepali Gundu Surwase
vs Kranti Junior Adhyapak & Ors reported in (2013)
10 SCC 324 and Gauri Shanker vs State Of
Rajasthan reported in 2015 12 SCC 754, it is prayed
by the learned advocate that no error has been
committed by the learned labour court in granting the
relief of reinstatement and back wages to the amount of
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Rs.2000/-.
10. Having considered the arguments advanced by the
learned advocates for respective parties, it emerges that
the claim was raised before the learned labour court by
the respondent workman that the workman was working
since last three years and has been terminated on
03.12.2016 without following the procedure under the
ID Act. To establish the case, the respondent workman,
in addition to the disclosure in statement of claim has
filed an application below Exh.12 seeking the production
of documents from 01.01.2014 to 31.12.2016 like wage
register, muster roll, provident fund form, ESI details
etc. which was ordered in favour of the respondent. It is
also undisputed fact that there were two references
were proceeded together out of which one reference
being reference IT No.93 of 2017 was filed by the
daughter and the present reference being Reference IT
No.92 of 2017 was filed by the mother. Petitioner has
produced the documentary evidence in the Reference IT
No.93 of 2017 as the nature of documents is identical in
both cases and the reference court has also considered
all the evidence which was produced in reference case
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No.93 of 2017. The other reference was also awarded in
the favour of the respondent who is the daughter of the
present respondent, by directing lump sum
compensation of Rs.33,000/- in lieu of reinstatement and
back wages which remained unchallenged.
11. On referring the reasons, it emerges that the application
below Exh.15, seeking the production of muster roll and
wage register for the period of last three years was
sought and the same was ordered in favour of the
respondent. The termination date which was established
by the present petitioner i.e. 15.02.2017, if one would
consider, then the preceding year to consider the
continuous service as defined under section 25(B) of the
ID Act would be February, 2016 to January, 2017. The
petitioner herein has produced the record from April,
2016 to February, 2017 stating that the work which was
carried out by the respondent was of 181 days. It is
claimed by the petitioner that as the petitioner joined
the duties from 02.04.2016, therefore, the record for
previous two months i.e. February, 2015 and March,
2016 was not required to be produced.
11.1. In the opinion of this Court the petitioner ought to
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have left to the Court after producing the said document
to ascertain that whether the work was carried out by
the respondent from 02.04.2016 or from February, 2016.
By not producing the same, the petitioner has tried to
hide the evidence and therefore, learned reference court
has rightly drawn the adverse inference against present
petitioner for concluding that if the said evidence is
produced that may lead to establishing the claim of 240
days. In addition to that, it is claimed by the petitioner
that respondent has joined from 02.04.2016. The
petitioner has also tried to place on record the form
No.3A of the Employee's Provident Fund Scheme,
suggesting that the deduction of the contribution was
made from the month of May, 2016 and therefore, it can
be presumed that the petitioner respondent has joined
the duties in the month of April, 2016. This Court is of
the view that as the said document is not a part of the
reference proceedings it would be unfair if reliance
would be placed on the said document as the respondent
was not having any opportunity to rebut the said
evidence before the learned labour court.
11.2. This Court has considered the decision rendered by
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the Apex Court in the case of R.M. Yellatti vs The
Asst. Executive Engineer, reported in (2006) 1 SCC
106, wherein, the Apex Court has held that the burden
is on the claimant to show that he worked for 240 days
in the 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
the services of daily wage earner, there will not be a
letter of appointment or termination, neither any receipt
or proof of payment, thus the workman 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 the facts of the
case.
12. This Court has also considered the decision rendered in
the case of Municipal Corporation, Faridabad Versus
Siri Niwas reported in 2004 8 SCC 195 wherein, it is
held that the court of law, even in case where provisions
of Indian evidence Act Apply may presume or may not
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presume that if a party, despite the possession of the
best evidence had not produced the same, it would have
gone against his contention. The matter, however, would
be different when, despite directions by Court the
evidence is with held. The presumption as to adverse
inference for non production of evidence is optional and
one of the factors which are required to be taken into
consideration is background of facts involved in the lis.
The presumption, thus is not obligatory because not
withstanding intentional non production, other
circumstances may exist with such intention of non
production may be found justifiable on some reasonable
ground.
13. In the instant case, the Industrial Court has drawn
adverse inference against the present appellant,
considering the fact that the petitioner intentionally
withheld the attendance register for the period of two
months. Hence in the opinion of this Court, when the
best evidence which was with held by the petitioner to
support his assertion on oath and he is not doing so, it
would result in discrediting his word. Therefore, the
learned reference court has rightly held the reference in
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favour of the respondent by holding the termination
illegal.
14. Now the question arises that when the termination is
held illegal, whether the relief can be molded instead of
granting reinstatement. This Court has referred the
decision rendered by the Apex Court in the case of
Telecom District Manager And Others vs Keshab
Deb , reported in 2008 (8) SCC 402 wherein, it is held
as under:-
"19. A Tribunal indisputably was entitled to exercise its
jurisdiction for enforcement of a fundamental right.
20. In any event the appellants themselves raised the contention
as regards the jurisdiction of the Tribunal. It may be true that no
jurisdiction can be conferred by consent but this Court while
exercising a discretionary jurisdiction under Article 136 of the
Constitution of India is entitled to take note thereof. It may not
allow a party to raise such a contention before it, having regard
to its conduct.
21. The Tribunal and consequently the High Court were correct
that the termination of the services of the respondent was illegal.
22. He, according to the appellants, has committed a misconduct.
His services had been terminated on that ground. But therefore he
was entitled to an opportunity of being heard. A regular
departmental proceedings should have been initiated against him;
the order of termination being stigmatic in nature. While,
however, granting a relief, the superior courts should take into
consideration the factors relevant therefor, which, in our opinion,
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in the instant case are :-
a) Recruitment of the respondent was ex-facie illegal as prior
thereto neither any advertisement was issued nor the employment
exchange was notified in regard to the vacancy.
b) It does not appear that the respondent had even got himself
registered with the Local Employment Exchange.
c) He being a daily rated casual employee did not have any right
to continue in service.
23. . Even in a case where an order of termination is illegal, an
automatic direction for reinstatement with full back wages is not
contemplated. He was at best entitled to one month's pay in lieu
of one month's notice and wages of 15 days of each completed
years of service as envisaged under Section 25-F of the Industrial
Disputes Act. He could not have been directed to be regularized
in service or granted any given a temporary status.
Such a scheme has been held to be unconstitutional by this
Court in A. Umarani vs. Registrar, Cooperative Societies and
others : (2004) 7 SCC 112 and Secretary, State of Karnataka and
Ors. vs. Umadevi and Ors. (2006) 4 SCC 1."
14.1. As this Court has upheld the order of learned labour
court on violation of section 25(F) of the ID Act, other
aspects regarding the breach of section 25(g) and 25(h)
of the ID Act is not required to be discussed.
15. Considering the above decision and considering the
tenure of service this court is of the view that if the
compensation of Rs.1,00,000/- would be awarded in lieu
of reinstatement as well as back wages then ends of
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justice would meet.
16. Resultantly, this petition is partly allowed.
17. The petitioner is directed to pay the amount of
Rs.1,00,000/- towards lump sum compensation in lieu of
the reinstatement as well as back wages.
18. Rule made absolute to the above extent.
ORDER IN CIVIL APPLICATION NO. 1 of 2024
In view of the order passed in Special Civil Application
No.19968 of 2023, Civil Application is also disposed of.
(M. K. THAKKER,J)
NIVYA A. NAIR
