Gujarat High Court
Shailesh Kantilal Pandya vs Battalion Commandant No 2 on 16 June, 2025
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C/SCA/7707/2025 JUDGMENT DATED: 16/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7707 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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SHAILESH KANTILAL PANDYA
Versus
BATTALION COMMANDANT NO 2
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Appearance:
LD SR ADV. MR. SHALIN MEHTA ASSISTED BY MS SHIKHA D
PANCHAL(10764) for the Petitioner(s) No. 1
MR MRUNAL DHOLARIA, ASST.GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 16/06/2025
ORAL JUDGMENT
1. The present petition is filed under Articles 226 and 227 of
the Constitution of India, challenging the award dated
30.04.2024 passed by the learned Labour Court, Bhuj,
Kutch in Reference (T) No.144 of 2015, whereby the
Reference filed by the present petitioner came to be
rejected on the ground that the petitioner had failed to
establish continuous service as required under Section
25B of the Industrial Disputes Act, 1947 ('the I.D. Act',
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C/SCA/7707/2025 JUDGMENT DATED: 16/06/2025
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hereinafter).
2. The gist of the case is that the petitioner was working
with the respondent employer since 25.07.2002 as a
part-time Guardsman, receiving monthly wages of Rs.
1,800/-. His services came to be terminated on
29.01.2008, which was challenged before the learned
Reference Court with a prayer for reinstatement along
with all consequential benefits. The learned Reference
Court, after considering the evidence adduced by both
parties, decided the Reference against the present
petitioner, which is the subject matter of challenge before
this Court.
3. Heard the learned senior advocate Mr.Shalin Mehta with
learned advocate Ms.Shikha Panchal for the petitioner.
4. Learned senior advocate Mr.Mehta submits that the
learned Labour Court has committed an error in
disbelieving the case of the present petitioner with
regard to the continuous service of 240 days with the
respondent-employer. Learned senior advocate Mr.Mehta
further submits that since neither the appointment order
nor the termination order was produced by the
respondent-employer, the petitioner was unable to prove
continuous service. Instead of shifting the burden of proof
to the respondent to disprove the petitioner's claim of
having completed 240 days of service, the learned
Reference Court erroneously decided the Reference
against the petitioner. Therefore, the impugned award is
liable to be set aside by allowing the present petition.
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5. Having considered the submissions advanced by the
learned advocate for the petitioner and on perusal of the
reasons assigned in the impugned award, it emerges that
the petitioner was serving as a part-time guardsman on
an honorary basis in the Home Guards since 25.07.2002.
It further appears that due to irregular attendance in
discharging his duties, the petitioner's services were
terminated vide order dated 29.01.2008. Prior to
termination, the respondent issued three notices dated
24.02.2005, 12.02.2006, 12.07.2007, 10.08.2007,
18.09.2007 and 29.09.2007. Despite service of these
notices, the petitioner failed to report for duty. The
respondent-employer also produced muster rolls for the
period from 2002 to 2007, marked as Exhibit 22, which
reveal that the petitioner had not completed 240 days of
service in any given year. At this stage, reference to
Section 25B of the Industrial Disputes Act, 1947 ('the I.D.
Act' hereinafter) becomes relevant and is reproduced
hereinbelow:
"25B. Definition of continuous service-For the
purposes of this Chapte:
(1) a workman shall be said to be in continuous
service for 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;
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(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--
(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."
6. In the opinion of this Court, in the absence of fulfillment
of the requirement under Section 25B of the Industrial
Disputes Act, 1947 ('the I.D. Act'), the Court cannot
conclude that there has been a breach of Section 25F,
and consequently, the relief of reinstatement cannot be
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granted in favour of the petitioner. The petitioner, in
addition to alleging breach of Section 25F of the I.D. Act,
has also contended that subsequent to his termination,
juniors were retained in service, thereby alleging a
breach of Sections 25G and 25H of the I.D. Act. However,
to substantiate the claim under the said provisions, no
evidence whatsoever has been adduced by the
petitioner. Therefore, the learned Reference Court has
rightly dismissed the Reference in the absence of any
supporting evidence. This is clear a case of 'no evidence'
and, in the considered opinion of this Court, no relief can
be granted to the petitioner. Accordingly, the petitions,
being devoid of merit, deserve to be dismissed.
7. Resultantly, these petitions are dismissed.
(M. K. THAKKER,J)
M.M.MIRZA
