Gujarat High Court
Mohanbhai Somabhai Bariya vs State Of Gujarat on 11 September, 2025
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C/SCA/19240/2021 JUDGMENT DATED: 11/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19240 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19245 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19247 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19248 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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MOHANBHAI SOMABHAI BARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
ADITYA DAVDA, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/09/2025
COMMON ORAL JUDGMENT
1. Leave to delete part of the prayer clause 10B. Necessary
amendments shall be carried out forthwith.
2. The present petitions are filed challenging the award
passed by the learned Labour Court dated 23.04.2018, whereby
while awarding the relief of reinstatement, the learned Court has
not granted the back wages as well as not mentioned with regard
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to the continuity of service.
3. It is the case of the present petitioner that the petitioners
are serving as daily wage labourers for more than 15 years and
they have been paid the meager amount of Rs.500/- per month.
Despite completing 240 days of continuous service in each year,
their services were terminated without following due procedure
on 01.04.1998, which is the subject matter of challenge by the
workmen in Reference (T) No.382 of 2006 and other allied
references. After considering the evidence adduced by both
parties, the learned Court held that the termination is in violation
of the provisions of the Industrial Disputes Act. However,
considering the delay in filing the reference, the learned Court
has not granted the relief of back wages as well as has not
specified anything with regard to the continuity of service and
the same is a matter of challenge before this court.
4. Heard learned advocate Mr. Brahmbhatt for the petitioner
and the learned AGP Mr. Davda for the respondents.
5. Learned advocate Mr. Brahmbhatt submits that while not
granting the benefit of back wages, the learned Court has
committed an error in observing that no record was produced to
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suggest that despite sincere efforts were made to procure a job,
he could not succeed. Learned advocate Mr. Brahmbhatt submits
that declaring on oath with regard to the unemployment, the
onus would shift on the respondent to rebut the same either by
cross-examining the petitioner or by producing documentary
evidence. Learned advocate Mr. Brahmbhatt submits that the
learned Court has committed an error in not granting the benefit
of back wages only on the ground of delay and has not specified
anything with regard to the continuity of the service and
therefore, impugned award deserves to be interfered with qua
the above relief.
6. Per contra, the learned AGP Mr. Davda has vehemently
opposed these petitions and submitted that for holding the
termination illegal, the learned Court has only drawn adverse
inferences against the present respondents. Learned advocate
Mr. Davda submits that the muster roll, which was produced
before the learned Reference Court, suggests that the petitioner
has not worked for a single day. Learned AGP Mr. Davda submits
that the said muster roll was not for a continuous period.
However, learned Reference Court has held the termination is
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illegal and the relief of reinstatement was awarded. Learned AGP
Mr. Davda submits that the reference was filed after delay of 7
years and no documentary evidence was produced except the
self-serving statement, learned Court is justifying in not granting
the relief of back wages. Learned AGP Mr. Davda further submits
that as the reference was filed after a long time, therefore, the
learned Court is also justifying in not specifying anything with
regard to the continuity of service. Learned AGP Mr. Davda
submits that the order of reinstatement has not been challenged
by the respondent. In that background, the impugned award
requires to be confirmed and the present petitions are required
to be dismissed.
7. Having considered the arguments advanced by the learned
advocates for the respective parties, it emerges from the record
that petitioners were working with respondents for more than 15
years. Out of the four petitioners, the petitioner of Special Civil
Application No.19240 of 2021 retired from service on 31.03.2019,
the petitioner of Special Civil Application No.19247 of 2021
retired on 31.07.2025 and the petitioner of Special Civil
Application No.19248 of 2021 retired on 30.06.2020. As on date,
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only the petitioner of Special Civil Application No.19245 is
working pursuant to the order passed by the learned Reference
Court. It emerged that the learned Court, while awarding the
relief of reinstatement, has neither denied the continuity of
service and nor granted the same.
7.1 This Court has referred to the decision by the Hon'ble Apex
Court in the case of Gurpreet Singh V/s. State of Punjab And
Ors., reported in 2002 (9) SCC 492, wherein it is held that the
learned Labour Court, while setting aside the termination, if has
not specifically denied the continuity of service, the relief of
continuity of service is required to be granted. It is true that
reference was filed after a period of 7 years; however, in the
considered opinion of this court, denying total back wages would
be unjust and improper. It is also required to be noted herein that
on making the declaration of unemployment, the same was not
controverted by the witness of the respondent during cross-
examination of the petitioner has neither produced evidence to
rebut the same.
7.2 This Court has referred to the decision of the Hon'ble Apex
Court in the case of General Manager, Haryana Roadways vs
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Rudhan Singh reported in (2005) 5 SCC 591, wherein, the criteria
is specified to decide the question of back wages, relevant part is
reproduced herein below:-
"8. There is no rule of thumb that in every case where the
Industrial Tribunal gives a finding that the termination of
service was in violation of Section 25-F of the Act, entire
back wages should be awarded. A host of factors like the
manner and method of selection and appointment, i.e.,
whether after proper advertisement of the vacancy or
inviting applications from the employment exchange,
nature of appointment, namely, whether ad hoc, short
term, daily wage, temporary or permanent in character,
any special qualification required for the job and the like
should be weighed and balanced in taking a decision
regarding award of back wages. One of the important
factors, which has to be taken into consideration, is the
length of service, which the workman had rendered with
the employer. If the workman has rendered a
considerable period of service and his services are
wrongfully terminated, he may be awarded full or partial
back wages keeping in view the fact that at his age and
the qualification possessed by him he may not be in a
position to get another employment. However, where
the total length of service rendered by a workman is very
small, the award of back wages for the complete period,
i.e., from the date of termination till the date of the
award, which our experience shows is often quite large,
would be wholly inappropriate. Another important
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factor, which requires to be taken into consideration is
the nature of employment. A regular service of
permanent character cannot be compared to short or
intermittent daily wage employment though it may be
for 240 days in a calendar year."
In view of this court, if 10% back wages would be awarded
to the petitioner, the ends of justice would be met.
8. Resultantly, the present petitions are partly allowed. The
respondents are directed to give the continuity of service along
with 10% back wages to each of the workmen and the employees
who retired from service shall be entitled to such benefit up to
the date of their superannuation. It is needless to clarify that if
the petitioners are aggrieved by any other benefit which is not
granted, the remedy would be available before the appropriate
Court.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
