Gujarat High Court

State Of Gujarat vs Bhimsing Gomabhai Vasava on 26 June, 2025

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                             C/SCA/7390/2025                                         JUDGMENT DATED: 26/06/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 7390 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
                                                    BHIMSING GOMABHAI VASAVA
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                       Appearance:
                       MS.DIXA PANDYA, AGP for the Petitioner(s) No. 1
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                          CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                                Date : 26/06/2025

                                                                ORAL JUDGMENT

1. This petition is filed under Article 226 and 227 of the

Constitution of India challenging the award passed by

the learned labour court in Reference (L.C.B.) No.18 of

2015 dated 30.03.2022 whereby, the learned reference

court has directed the present petitioner to reinstate the

respondent workman to his original post with continuity

of service.

2. It is the case of the present petitioner that respondent

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herein, had filed the reference before the learned

reference court stating that the respondent joined the

present petitioner on the post of Forest Guard from

01.04.2002 and he was terminated on 31.12.2013

without following due procedure under the Act. It is

contended before the learned reference court by the

respondent that though the respondent had served

continuously and was assured by the petitioner employer

that he would be regularized, but instead on

regularization order of termination was passed. Present

petitioner appeared before the learned labour court and

raised contention that respondent had abandoned his

work from 30.03.2009, therefore, no question for

termination arises. It is further contended by the present

petitioner before the learned labour court that the

engagement of the present respondent was as a seasonal

employee therefore, on completion of work, his services

are required to be terminated. It is contended before the

learned reference court that as per the muster roll

which is produced for the year 2005 to 2009, the

petitioner did not complete 240 days which is prime

requirement under section 25(B) of the Industrial

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Disputes Act(hereinafter referred to as the "I.D.Act").

Learned labour court, after considering the submission

made by both the parties and on scrutinizing the

evidence has awarded the reference in favour of the

respondent, which is subject matter of challenge before

this Court.

3. Heard learned AGP Ms.Dixa Pandya.

3.1. Learned AGP Ms.Pandya submits that as per the

muster roll/ Tarij Patrak, which is part of the record and

prepared on the basis of cash book in none of the year,

the respondent has completed 240 days and he

abandoned the service from 31.09.2009. Learned AGP

Ms.Pandya submits that the onus lies on the workman to

prove the requirements of 240 days, however, in

absence of discharging the said onus, no relief can be

granted to the workmen. Learned AGP Ms.Pandya

submits that except the statement on oath, no other

evidence was adduced to show that respondent has

served with the petitioner establishment upto year 2013

continuously. Therefore, also impugned award deserves

to be interfered with and this petition is required to be

allowed.

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4. Having considered the arguments advance by learned

AGP Ms.Pandya and on referring the record and

proceedings which has been called by this Court, it

emerges that the statement of claim came to be filed by

the respondent workman alleging that he was serving as

a Forrest Guard from 01.04.2002 and his services were

terminated on 31.12.2013. In the statement of claim,

respondent has called for muster roll as well as wage

been worked by the respondent. In addition to that the

application below Exh.06 seeking production of

document was also filed by the respondent, thereafter,

further application below Exh.15 was also filed seeking

same relief which was ordered in favour of the

respondent and directions were issued to the present

petitioner employer to produce the attendance register

from 01.12.2011 to 31.12.2011. It is further ordered by

the learned labour court in the said order dated

23.01.2017 that in case of non availability of the

documents, first party has to file an affidavit in that

regard. It is undisputed fact that neither documents

which was called for, for the period has been produced,

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nor the affidavit is filed in compliance with the order.

The muster roll which is placed on record showing the

non compliance of the requirement of section 25(B) of

the I.D.Act was up to year 2009, though the order was

passed to produce the same for the year 2011-12 which

is preceding year of the termination. In addition to that

during the cross-examination of the witness of the

petitioner, question was put that whether the

respondent had served from 01.04.2002 to 31.12.2013

and the answer was given that he was doing

miscellaneous work which suggests that the petitioner

who tried to project the case that only up to 2009 the

respondent had worked is not true. In addition to that

the witness of the present petitioner has also admitted

during the cross-examination that the salaries were paid

through voucher and the vouchers are lying in the office.

It is admitted that as per the order passed below Exh.15,

no documents were produced before the learned labour

court.

5. At this stage, reference of the judgment rendered by the

Apex Court in the case of R.M. Yellatti vs The Asst.

Executive Engineer, reported in (2006) 1 SCC 106,

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more particularly para 17 and 18 is necessary which is

reproduced herein below:-

"17. Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view 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 earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) 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 each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the

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High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case.

18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped into the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22-11-1988 to 20-6-1994. This period is the period borne out by the certificate (Ext. W-1) issued by the former Assistant Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, Exts. M-1, M-2 and M-3, did not even relate to the period concerned. The relevant NMRs produced by the management were Exts. M-4 and M-5, which indicated that the workmen had worked for 43 days during the period 21-1-1994 to 20-2-1994 and 21-3-1994 to 20-4- 1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The Labour Court has rightly held that there is nothing to disbelieve the certificate (Ext. W-1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the Division Bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the Labour Court and confirmed by the learned Single Judge vide order dated 7-6-2000 in Writ Petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani

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and Ext. W-1 was issued by the former Assistant Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani 591

304. In the present case, the defence of the management was that although Ext. W-1 refers to the period 22-11-1988 to 20-6-1994, the workman had not worked as a daily-wager on all days during that period. If so, the management was duty-bound to produce before the Labour Court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ext. W-1). In the circumstances, the Division Bench of the High Court had erred in interfering with the concurrent findings of fact."

6. Having considered the above ratio and the facts of the

instant case, it emerges that though petitioner was

directed to produce the relevant documents for the year

2011 to 2012 he failed in producing the said documents

additionally neither any affidavit was filed explaining the

cause for not producing the said record. When the

witness of the petitioner has admitted the fact that the

vouchers are lying in the office, then the learned labour

court is justifying in drawing the adverse inference

against the present petitioner.

7. As the learned labour court has not granted any back

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