Gujarat High Court
State Of Gujarat vs Viththalbhai Gangabhai Jadhav on 29 September, 2025
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C/SCA/488/2024 JUDGMENT DATED: 29/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 488 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 525 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 569 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 571 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 572 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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STATE OF GUJARAT
Versus
VITHTHALBHAI GANGABHAI JADHAV
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Appearance:
MR ADITYA DAVDA, ASST. GOVERNMENT PLEADER for the Petitioner(s)
No. 1
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 29/09/2025
COMMON ORAL JUDGMENT
1 Rule, returnable forthwith. Learned advocate
Mr.Pandya waives service of notice of Rule on behalf
of the respondents.
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2 Since the issue raised in the these petitions are
similar, they are being decided by a common
judgment. The facts of Special Civil Application
No.488 of 2024 are taken for the purpose of
adjudication.
3 These petitions are filed by the State challenging the
award passed by the learned Labour Court, Valsad,
dated 05.11.2022, whereby the learned Labour Court
allowed the Reference filed by the present
respondent, granting the relief of reinstatement with
50% back wages from the date of filing of the
Reference, i.e. 01.07.2015.
4 It is the case of the present petitioner that the
respondent was working with the petitioner as a
Watchman and was receiving monthly wages of
Rs.4,000/-. His services were terminated with effect
from 01.07.2015 without following the due procedure
prescribed under the Industrial Disputes Act, 1947
(hereinafter referred to as 'the I.D. Act'), which came
to be challenged before the learned Labour Court by
filing a Reference under Section 10(1) of the I.D. Act.
After considering the evidence placed on record by
the learned advocates for the respective parties, the
Reference was decided in favour of the respondent
by granting the relief mentioned hereinabove, which
is the subject matter of challenge before this Court.
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5 Heard the learned AGP Mr.Aditya Davda for the
petitioner-State and the learned advocate Mr.Yogen
Pandya for the respondents.
6 Learned AGP Mr. Aditya Davda submits that no
evidence was produced by the respondent to
establish the claim of continuous service as
contemplated under Section 25B of the I.D. Act.
However, the learned Labour Court, by drawing an
adverse inference against the present petitioner, has
believed the case of continuous service and
consequently held that there was a violation of
Section 25F of the I.D. Act. Learned AGP Mr.Davda
further submits that though an application for
production of documents below Exhibit 30 was
complied with by the present petitioner by producing
the wage register for the period from 2012 to 2015
along with xerox copies of the cash book, the learned
Court has disbelieved the case of the petitioner and
discarded the said evidence on the ground that the
basis on which such documents were prepared had
not been placed on record. It is submitted that in the
absence of the specific plea regarding suppression of
the aforesaid documentary evidence, the learned
Court has committed an error in drawing an adverse
inference against the petitioner and in granting relief
in favour of the respondent.
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6.1 Learned AGP Mr. Davda relies upon the
decisions rendered by the Apex Court in R.M.
Yellatti vs. Assistant Executive Engineer,
reported in (2006) 1 SCC 106, and Municipal
Corporation, Faridabad vs. Siri Niwas,
reported in (2005) 5 SCC 100, and submits that
the learned Labour Court has committed an error
in granting relief in favour of the respondent. It is
submitted by the learned AGP Mr.Davda that no
specific date of appointment was mentioned either
in the statement of claim or in the examination-in-
chief, and though the respondent failed to
discharge the onus of proving his case, the learned
Court has erroneously allowed the Reference.
Learned AGP Mr.Davda further submits that the
burden to establish continuous service is upon the
workman, and an oral assertion that he worked
continuously for 240 days cannot substitute proof,
as held by the Apex Court in the case of Siri
Niwas (supra). Therefore, the learned Court has
committed an error in granting relief to the
respondent. Learned AGP Mr.Davda also submits
that the Labour Court itself has recorded that the
workman could not have remained idle for such a
long period, yet while so observing, it has granted
50% back wages, which is contradictory in nature,
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and hence the impugned award also deserves to
be set aside on this ground.
6.2 Learned AGP Mr. Davda has relied upon the
decisions of the Apex Court rendered in the case of
Uttar Pradesh State Brassware Corpn.Ltd.
Versus Udai Narain Pandey, reported in (2006)
1 SCC 479, and in the case of Raj Kumar Versus
Director Of Education, reported in (2016) 6
SCC 541, and has submitted that even if the
termination is held to be defective, the award of
50% back wages is unsustainable and is required
to be set aside. It is submitted that the learned
Labour Court has committed an error in granting
the relief of 50% back wages while simultaneously
holding the termination to be illegal. In that
background also, the impugned award deserves to
be set aside.
7 Per contra, learned advocate Mr. Pandya, appearing
for the respondent, submits that it is an undisputed
fact that the services of the respondent came to be
terminated on 01.07.2015 without following the due
procedure prescribed under the I.D. Act. Learned
advocate Mr. Pandya submits that though a
production application was filed seeking attendance
sheets and muster rolls, the petitioner instead
produced the tarij patrak and copies of the cash book
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for the period from 2012 to 2015. It is submitted by
the learned advocate Mr. Pandya that no explanation
was offered in the affidavit for non-production of the
documents specifically sought for, and therefore, the
learned Labour Court was fully justified in drawing an
adverse inference in favour of the respondent.
Learned advocate Mr. Pandya further submits that
during the course of evidence, the respondent had
stated on oath that the petitioner had not provided
any attendance card, pay slip, leave card, or I.D.
card, and hence the respondent had no option but to
move the production application seeking such
documents which were admittedly in possession of
the petitioner. It is further submitted by the learned
advocate Mr. Pandya that the employer-employee
relationship was not disputed even by the witness
examined on behalf of the petitioner, and therefore,
no error can be said to have been committed by the
learned Labour Court in granting the relief of
reinstatement with 50% back wages. In this
background, the petitions deserve to be dismissed
and the impugned award is required to be confirmed.
8 Having considered the submissions advanced by the
learned advocates for the respective parties and
upon perusal of the record, it emerges that the
statement of claim was filed alleging illegal
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termination with effect from 01.04.2015, contending
that the respondent had been working continuously
as a watchman for about 13 years. It was further
averred in the statement of claim that though the
respondent had completed 240 days in each year, he
was made to work for 30-31 days in a month but was
paid wages only for 20-25 days, and upon raising a
grievance in this regard, his services came to be
terminated.
8.1 The petitioner, in its written statement, denied
the claim and contended that the respondent was
engaged purely on an ad-hoc basis for seasonal
work and had not completed 240 days of
continuous service as required under Section 25B
of the I.D. Act. It was therefore submitted by the
learned advocate Mr. Pandya that the respondent
was not entitled to the protection of Section 25F of
the I.D. Act and consequently, the termination
could not be held to be illegal or void.
8.2 During the course of proceedings, the
respondent filed an application below Exhibit 10
seeking production of documentary evidence such
as the attendance register for the period from
2001 to 2016 and a copy of the relevant grant. The
said application came to be allowed by the learned
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Labour Court vide order dated 03.10.2009. In
compliance thereof, an affidavit dated 13.08.2018
was filed by the Range Forest Officer, Chikhli,
stating that since the work was seasonal in nature,
no formal appointment orders were issued. It was
further stated that the attendance register sought
by the respondent was not available as the
respondent was engaged as a daily-rated labourer
and had worked for 15 to 18 days in each month,
and in absence of such records, the same could
not be produced.
8.3 In support of its defence, the petitioner
produced the tarij patrak under the signature of
the Range Forest Officer, Chikhli, showing that the
respondent had not completed 240 days of service
in any given year along with typed copies of the
cash book were also produced, reflecting details of
wage payments for the period from 01.04.2002 to
30.03.2014, with the contention that the said
documents clearly established that the respondent
had not worked for 240 days in any calendar year.
8.4 Another application was thereafter filed below
Exhibit 16 seeking production of the attendance
register as well as the muster roll for the period
from 2001 to 2016. In response, an affidavit came
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to be filed by the witness of the petitioner stating
that the said documents were never maintained
and, therefore, in absence of their existence, the
same could not be produced.
9 During the course of examination of the petitioner's
witness, a suggestion was put regarding the
maintenance of the attendance register, which was
answered in negative form. The only admission made
during cross-examination was that the employees
were being paid wages on a daily-wage basis;
however, the wage register was not produced before
the Court. It was further admitted that the tarij patrak
was prepared on the basis of the cash book, which
was produced below Exhibit 15/1.
9.1 On the other hand, if the cross-examination of
the respondent is referred to, it stands admitted
that he worked with the petitioner on a need basis.
With regard to his assertion that he had worked for
30-31 days in a month but was paid wages for
only 20-25 days, no documentary evidence was
produced. The learned Labour Court proceeded to
decide the Reference solely on the basis of
drawing an adverse inference, observing that the
attendance register and muster roll were not
produced. However, insofar as the allegation of
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withholding the said documents is concerned,
neither through cross-examination nor by way of
any documentary evidence has the respondent
established his case.
10 This Court has referred to the decision rendered by
the Apex Court in the case of R.M. Yellatti (supra),
wherein it is held that the burden is discharged by
the workman only upon adducing cogent evidence,
both oral and documentary. The drawing of an
adverse inference would depend upon the facts of
each case, and a mere affidavit or self-serving
statement made by the claimant would not suffice for
discharging the burden placed upon the workman to
prove that he had worked for 240 days in a given
year. It has further been held that mere non-
production of the muster roll, per se, without any
specific plea or proof of suppression by the claimant-
workman, would not be a valid ground for the Labour
Court or Tribunal to draw an adverse inference
against the management.
11 This Court has also referred the decision rendered by
the Apex Court in the case The Range Forest
Officer Vs S.T. Hadimani, reported in (2002) 3
SCC 25 wherein it is held that the claim of
completion of 240 days was denied by the employer.
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It was then for the workman to lead evidence to show
that he had in fact work for 240 days in a preceding
year of his termination.
12 In the case of Siri Niwas (supra), the Apex Court
has held that even in cases where the provisions of
the Indian Evidence Act apply, a Court of law may or
may not draw a presumption that, if a party
possessing the best possible evidence fails to
produce the same, such evidence would have gone
against its contention. However, the position would
be different where, despite a specific direction issued
by the Court, such evidence is withheld. The
presumption of adverse inference for non-production
of evidence is, therefore, discretionary and not
mandatory. It depends upon the facts and
circumstances of each case, and even in cases of
intentional non-production, there may exist justifiable
reasons which could explain such conduct on
reasonable grounds.
13 This Court has also referred to the decision rendered
by the Apex Court in the case of The Manager,
Reserve Bank of India v. S. Mani and Others,
reported in (2005) 5 SCC 100, wherein it has been
held that the finding of the learned Tribunal placing
the burden upon the employer was erroneous. The
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Apex Court observed that the initial burden of proof
lies upon the workman to establish that he had
completed 240 days of continuous service in the
preceding year. The same view has been reiterated
by the Apex Court in Batala Cooperative Sugar
Mills Ltd. v. Sowaran Singh, reported in (2005) 8
SCC 25, and in Ranip Nagar Palika v. Babuji
Gabhaji Thakore and Others, reported in (2007)
13 SCC 343, wherein it has been held that the
burden of proof lies on the workman to demonstrate
that he had worked continuously for 240 days in the
preceding year, and it is incumbent upon the
workman to adduce cogent evidence, apart from his
own deposition, to substantiate his claim of
employment with the employer.
14 If the above ratio is applied to the facts of the
present case, it clearly emerges that, admittedly,
except for the self-serving statement and declaration
on oath, no other evidence was produced by the
respondent to discharge the onus of proving his case
or to establish the continuity of service. During the
course of cross-examination, it was also admitted by
the witness of the petitioner that the attendance
register and muster rolls were never maintained, and
that the only document available, namely, the Tarij
Patrak, which was prepared on the basis of entries in
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the cash book, was held by the learned Labour Court
to be insufficient, and an adverse inference came to
be drawn therefrom.
15 In the opinion of this Court, in the absence of any
material to establish deliberate suppression or
withholding of documents that were in possession of
the petitioner, the learned Labour Court has
committed an error in granting relief solely on the
basis of adverse inference. Therefore, the impugned
award deserves to be interfered with, and the
petition is required to be allowed.
16 Resultantly, this petition is allowed. The order
passed in References (L.C.V.) No.140 of 2016 is
quashed and set aside. Rule is made absolute
accordingly.
(M. K. THAKKER,J)
M.M.MIRZA
