Patel Bharatbhai Pravinbhai vs The Deputy General Manager
2025 Latest Caselaw 514 Guj

Gujarat High Court

Patel Bharatbhai Pravinbhai vs The Deputy General Manager on 2 July, 2025

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                             C/SCA/593/2020                                     JUDGMENT DATED: 02/07/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                 R/SPECIAL CIVIL APPLICATION NO. 593 of 2020
                        FOR APPROVAL AND SIGNATURE:
                        HONOURABLE MRS. JUSTICE M. K. THAKKER

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                                     Approved for Reporting                     Yes           No
                                                                                              NO
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                                                    PATEL BHARATBHAI PRAVINBHAI
                                                               Versus
                                                    THE DEPUTY GENERAL MANAGER
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                        Appearance:
                        DHARITRI PANCHOLI(7502) for the Petitioner(s) No. 1
                        MS BHAVANA M LALWANI(10640) for the Petitioner(s) No. 1
                        MS NANCY SONI FOR GUPTA LAW ASSOCIATES(9818) for the
                        Respondent(s) No. 1
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                          CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                            Date : 02/07/2025

                                                           ORAL JUDGMENT

1. This petition is filed under Articles 226 and 227 of the Constitution of India challenging the award passed by the learned Industrial Tribunal-cum-Labour Court, Ahmedabad in Reference (CGITA) No.458 of 2004, as well as the order passed in Misc. Application (CGITA) No.21 of 2017, which was filed seeking review of the award. By the impugned award, the learned Labour Court rejected the Reference on the ground that the petitioner did not fulfill the criteria provided under Section 25B of the Industrial Disputes Act, 1947 ("the I.D. Act" for short), and therefore, there was no breach of Section 25F of the I.D. Act.

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2. It is the case of the present petitioner that he was serving with the respondent-Bank on the post of Peon-security and had worked from 02.07.1994 to 04.10.1998. It is alleged by the petitioner that his services were orally terminated on 04.10.1998, and therefore, a Reference was filed in the year 2004 challenging the said termination. The learned Reference Court, after examining the evidence adduced by both parties, decided the Reference against the petitioner. After the Reference came to be rejected, the petitioner filed a review application being Misc. Application No.21 of 2017, alleging that the award was not in accordance with the provisions of the I.D. Act and therefore required to be reviewed. However, the learned Court also rejected the said application, which is under challenge in the present petition.

3. Heard learned advocate Ms.Pancholi for the petitioner and learned advocate Ms.Soni for the respondent.

4. Learned advocate Ms. Pancholi submits that as per the claim of the present petitioner, the petitioner had served with the respondent from 1994 to 1998 and had completed 512 days in total, as evidenced by the vouchers produced below Exhibits 19 and 20. Learned advocate Ms. Pancholi submits that since the said vouchers are xerox copies, a production application was filed to call for the originals. However, the Bank, in its reply, stated that as the workman had left the job in the

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year 1998 and the Reference was initiated in the year 2002, all the documents had been weeded out. Learned advocate Ms. Pancholi submits that upon the petitioner having discharged the initial onus by producing evidence of completion of continuous service, it was incumbent upon the employer to rebut the same by adducing evidence. However, in the absence of any such evidence, the learned Reference Court committed an error in dismissing the Reference. Learned advocate Ms. Pancholi further submits that even if the relief of reinstatement were not to be granted, the petitioner would certainly be entitled to lumpsum compensation and therefore, also, the impugned award deserves to be interfered with.

5. Per contra, learned advocate Ms. Soni submits that as per the statement of claim filed by the present petitioner, it is evident that the petitioner did not complete 240 days of service in the preceding year. It is pointed out that in the year 1997, the petitioner worked for only 49 days, and in the year 1998, he worked for merely 27 days. Learned advocate Ms. Soni submits that the cumulative or overall number of days worked across multiple years cannot be considered for the purpose of satisfying the requirement under Section 25B of the I.D Act. The statutory requirement is that the employee must have completed 240 days of continuous service in the preceding year from the date of termination. Learned advocate Ms. Soni further submits that, as per the petitioner's own case, the date of termination was 04.10.1998, and hence, the

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relevant period for assessing continuous service would be from October 1997 to October 1998. In the absence of proof of completion of continuous service during that period, the learned Reference Court has rightly dismissed the Reference, and therefore, no interference is warranted; the petition is liable to be dismissed.

6. Having considered the arguments advanced by the learned advocates for the respective parties, it emerges from the record that, as per the statement of claim, the petitioner had joined the respondent-Bank on the post of peon-security on 02.07.1994 and was orally terminated on 04.10.1998. The Reference was filed in the year 2004, i.e., after a delay of four years. The learned Reference Court, instead of rejecting the Reference on the ground of delay, has rightly examined the case with regard to compliance with Section 25F of the I.D.Act. It further emerges from the record that the wage voucher slips produced by the petitioner at Exhibits 19 and 20 indicate that the petitioner had worked for a total of 510 days overall; however, for the year 1997-1998, he had completed only 76 days of service.

7. At this stage, reference of section 25B 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

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a period if he is, for that period, in uninterrupted 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;

(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--

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(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.

8. It is undisputed that in the preceding year, the petitioner did not work for 240 days. Though he claimed to have worked for a total of 512 days over a four-year period, such cumulative service cannot be the determining factor under Section 25B of the I. D. Act. It was submitted by learned advocate Ms. Pancholi that for the year 1994- 1995, the petitioner had completed 240 days as per the vouchers produced before the learned Labour Court. However, in the considered opinion of this Court, for deciding the issue of illegal termination, what is relevant is the completion of 240 days in the preceding year, which admittedly has not been established. As the onus is on the workman to prove his case, and he has failed to discharge that burden, no relief can be granted in his favour. In the absence of the requisite continuity of service, the learned Reference Court has rightly dismissed the Reference. Hence, this petition, being devoid of merit, deserves to be dismissed.

9. Resultantly, this petition is dismissed. Rule is discharged.

(M. K. THAKKER,J) M.M.MIRZA