Gujarat High Court
State Of Gujarat vs Prabhubhai Bhikhabhai Kabira on 7 July, 2025
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C/SCA/10834/2024 JUDGMENT DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10834 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 4975 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
PRABHUBHAI BHIKHABHAI KABIRA
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Appearance:
MS.DIXA PANDYA, AGP for the Petitioner(s) No. 1
MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/07/2025
ORAL JUDGMENT
ORDER IN SPECIAL CIVIL APPLICATION NO.10834 OF
1. At the outset learned AGP Ms.Dixa Pandya states that
the workman has been reinstated pursuant to the order
passed by this Court.
2. The present petition is filed challenging the award
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passed by the learned labour court, Ahmedabad in
Reference (LCA) No.93 of 2015 whereby the petitioner
was directed to reinstate the respondent to its original
post with continuity of service and without back wages.
Additionally, costs of Rs.5,000/- was awarded while
allowing the Reference by the learned labour Court.
3. The gist of the case is that the respondent No.1 was
working with the petitioner since 01.02.2010, and his
services were alleged to have been discontinued from
01.10.2014. Challenging the order of the termination,
the the respondent was raised the dispute before the
learned Reference Court, which registered being a
Reference (T) No.93 of 2015 wherein the relief of
reinstatement was claimed. During the pendency of the
Reference, an application below Exhibit 6 was filed
seeking the production of the relevant documentary
evidence by the respondent No.1, the said application
was ordered in favour of the workman. However, neither
any evidence adduced nor was any affidavit filed
explaining the nonproduction of the evidence which was
sought. Learned Reference court, after considering the
evidence adduced, concluded that the termination order
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was passed illegally and therefore, granted the relief of
reinstatement with continuity of service, without back
wages, which is the subject matter of challenge before
this Court.
4. Heard the learned AGP Mr.Pandya for the
petitionerState and learned advocate Mr.Mishra for the
respondent.
5. Learned AGP Mr.Pandya submits that the learned
Reference court has relied on the bare words of the
respondent on completion of 240 days, service for
holding termination is illegal. Learned AGP Mr.Pandya
submits that no evidence was adduced by the
respondent to show that he served continuously since 04
years. It is submitted by the learned AGP Mr.Pandya
that despite the breach of Sections 25G and 25H of the
Industrial Disputes Act, 1947 was not established,
learned Reference court has allowed the Reference in
favour of the respondent.
5.1. Learned AGP Mr.Pandya submits that burden to prove
the continuity of service lies with the workman however,
without discharging the same, the impugned award is
passed by the learned Reference court and therefore,
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also the petition is required to be allowed by setting
aside the award passed by the learned labour court.
6. On the other hand, learned advocate Mr.P.C.Chaudhari
submits that though an application for the production of
documents was filed below Exhibit 6 and the same was
ordered in favour of the present respondent, the
compliance of the order was not made. Learned
advocate Mr.Chaudhari further submits that as per the
admission of the witness of the petitioner, it was
established that the respondent has served continuously
served from 01.02.2010 to 01.10.2014. Learned
advocate Mr.Chaudhari further submits that after
serving continuously for 04 years, the respondent was
terminated without following due procedure under the
I.D.Act. Therefore, the learned Reference Court rightly
allowed the Reference in favour of the respondent, and
no inference is warranted and petition deserves to be
dismissed.
7. Considering the submissions made by the learned
advocates for the respective parties and on referring the
reasons assigned by the learned Reference Court, it is
an undisputed fact that the application below Exhibit 6
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was filed seeking the production of the documents by
the respondent. Although, the application was allowed in
favor of the respondent, neither the documents were
produced, nor any affidavits were filed before the
learned Reference court. It is also not disputed that the
witness of the petitioner had admitted during his cross
examination that, as per the record maintained by the
petitioner, the respondent had continuously served from
01.02.2010 to 01.10.2014.
8. From the above admission, it is evident that the record is
available, however, the same did not produce and
therefore, learned Reference Court has rightly drawn
adverse inference against the present petitioner
concluding that if the same would be produced that
would go against the present petitioner.
9. 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
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(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 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.
10. This Court has also referred the decision rendered by
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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 continuous service of 240 days
during the preceding year.
11. Considering the above decisions, this Court is of the
view that in absence of compliance of the directions
issued in the production application, learned labour
Court had no choice but to presume that if the evidences
were produced, it would have gone against the
employer. In that background, the learned labour Court
has rightly drawn an adverse inference against the
present petitioner and concluded the Reference in
favour of the respondent.
12. As this Court does not find any infirmity in the impugned
judgment, this petition deserves to be dismissed, being
devoid of merits.
13. Resultantly, this petition is dismissed.
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ORDER IN SPECIAL CIVIL APPLICATION NO.4975 OF
Learned advocate Mr.P.C.Chaudhari submits that
pursuant to the order passed by this Court, the petitioner was
reinstated in the service, however, the relief now, which is
required to be granted would be with regard to the back
wages. Learned advocate Mr.Chaudhari submits that though
declaration is made in the statement of claim as well as in the
chief examination with regard to the unemployment as well as
the efforts made for getting an alternate job, the learned court
has committed an error in declining the relief of back wages
on the ground that the petitioner did not make any averment
in his pleading.
In view of the above submissions, Rule returnable on
13.11.2025. Learned AGP Ms.Dixa Pandya waives service of
Rule on behalf of respondent-State.
(M. K. THAKKER,J)
NIVYA A. NAIR
