Gujarat High Court
Laxmanbhai Bhagwanbhai Pagi vs Deputy Executive Engineer on 27 February, 2025
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C/SCA/17153/2024 JUDGMENT DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17153 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17213 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17493 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17457 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17472 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17460 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17466 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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LAXMANBHAI BHAGWANBHAI PAGI
Versus
DEPUTY EXECUTIVE ENGINEER
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Appearance:
MR A R DWIVEDI(11319) for the Petitioner(s) No. 1
MR R G DWIVEDI(6601) for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 27/02/2025
ORAL JUDGMENT
1. These petitions are filed challenging the awards passed
by the learned labour court whereby, the references
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filed by the petitioner-workmen came to be dismissed on
the ground of no evidence. As in all the petitions there is
a common ground of dismissing the references, this
Court has considered all the petitions together and
passed a common order.
2. Facts of Special Civil Application No.17472 of 2024 is
taken for consideration of the disposal of the petitions.
3. It is the case of the petitioner workmen that petitioner
was serving as a daily wager since1979 and was
receiving wages of Rs.7.50 per day. Thereafter, in the
year 1985, the services of the petitioner came to be
disengaged which was challenged before the learned
labour Commissioner on 16.10.2014 after a period of 31
years. Learned reference court, on considering the
submission made by the respondent parties as well as
considering the evidence placed by the respondent
Institute below Exh.7 comes to the conclusion that
petitioner fails to establish that he was working with the
respondent Institute and was terminated illegally. In
that view, learned reference court has dismissed the
reference, which is subject matter of challenge before
this Court.
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4. Heard learned advocate Ms.Supriya Tiwari for learned
advocate Mr.R.G.Dwivedi for the petitioner.
4.1. Learned advocate Ms.Tiwari submits that as he was a
daily wager and had not been provided with the
appointment letter, identity card or a pay slip, the
petitioner had not produced the same and has filed
application for production of relevant documents.
Learned advocate Ms.Tiwari submits that despite the
said application was allowed, the respondent has only
placed the seniority list of the year 1973 and submitted
that as per the seniority list, name of the petitioners
were not reflected. Learned advocate Ms.Tiwari submits
that during the cross-examination, it is admitted by the
respondent Institute that on perusing the records, the
exact information can be given with regard to the
strength of the daily wager during the year 1979-1985.
Learned advocate Ms.Tiwari submits that though record
was available, the affidavit was filed before the learned
labour court stating that after the period of 25 years all
the records were destroyed. Learned advocate
Ms.Tiwari submits that without considering the contrary
stand, learned labour court has dismissed the reference
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and therefore, impugned award deserves to be set aside
and the petition requires to be allowed.
5. Considering the submissions made by the learned
advocate for the respective parties. In view of the
following reasons, the impugned order does not require
to be interfered with:-
i. Though it is stated before the learned labour court
in the statement of claim that the petitioner was
serving since 1979 as a daily wager, no evidence
was adduced by the petitioner and there is no
specific date mentioned in the statement of claim of
joining or termination. It is stated in the statement
of claim that in the year 1985 his services were
disengaged, however, during the period of 1979 to
1985 at which place he worked, under whose
supervision he worked has not been stated, nor any
evidence was adduced. In absence of any sufficient
evidence to prove the existence of the facts, the
petitioner would not entitle in claiming the relief
before the learned labour court. As he failed to
discharge the burden of proof which was laid on
the petitioner, the learned reference court has
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dismissed the reference.
ii. The production application which is filed wherein,
order was passed to produce the last three year's
documents and in pursuance to the order, Exh.7 list
was produced wherein, as per the seniority list
which was prepared in the year 1973 name of the
present petitioner is not figured. In addition to that
the affidavit is filed stating that as all the
documents which are demanded is prior to 25
years, it was destroyed as per the rules framed by
the respondent Institute. The said order remained
unchallenged by the present petitioner. This Court
is of the view that as the petitioner fails to establish
that at which place he worked, which date he
joined and which department had terminated,
merely non producing the documents would not be
a ground of drawing adverse inference in favour of
the present petitioner.
iii. Petitioner has stated the name of the Officers,
however, no one has been examined as witnesses to
prove that the petitioner ever worked with the
respondent Institute. It is a well settled principal of
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law that person who set up a plea of existence of
relationship of employer and employee, the burden
would be upon him. In absence of discharging the
said burden, learned reference court is justified in
dismissing the reference.
iv. It is true that initial burden to show the continuity
of service is on the workman however, that burden
can be discharged by making positive assertion and
by filing the application of the production of the
necessary evidence on record. 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
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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 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.
v. This Court has also referred the decision rendered
by the Apex Court in the case of Director, Fisheries
Terminal Division versus Bhikubhai Meghajibhai
Chavda, reported in (2010) 1 SCC 47 wherein it
is observed that since the employer inexplicably
failed to produce the complete record and the
muster roll inspite of the directions of the learned
labour court, the learned labour Court was justified
in concluding that the workman had completed
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continuous service of 240 days during the
preceding year.
vi. All the references were filed after the delay of more
than 29 years as, as per the claim of the petitioner
he was terminated in the year 1985 and all the
references were filed in the year 2014. The
petitioner did not produce any evidence to show
that during this period any representation or
application is filed requesting to reinstate in the
service. In absence of any evidence, dispute cannot
be said live dispute as per the decision rendered by
the Apex Court in the case of Prabhakar Vs Joint
Director Sericulture Department and Ors.
reported in 2015 15 SCC 1 and therefore, also no
error has been committed by the learned reference
court in dismissing the reference of the petitioner.
vii. As per the claim of the present petitioner, he joined
the service in the year 1979 and as per the
evidence which was adduced in the year 2016, his
age is mentioned as 48 years. If this can be
considered to ascertain the age at relevant point of
time, then it comes on record that in the year 1979,
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the petitioner might be aged 11 years. In that view
also, the claim of the petitioner falsifies and
therefore, also impugned judgment and award
requires to be confirmed.
6. In view of the above, no ground in made out to interfere
with the impugned award, hence these petitions are
dismissed.
7. Resultantly, these petitions are dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
