JUDGMENT : MAUNA M. BHATT, J. 1. State as appellant has filed this intra-court appeal under Clause 15 of Letters Patent, challenging the judgment dated 31.01.2017 in Special Civil Application No. 6059 of 2015, wherein learned Single Judge modified the award of Labour Court, Bhavnagar in Reference T No. 208 of 1995 by holding that the workman would not be entitled for reinstatement w.e.f. 31.03.1991 with 20% back wages and continuity of service but the workman would be entitled to reinstatement with effect from the date of employment of other employees through contractor. The consequential benefits shall also be made available to the workman accordingly. 2. The brief facts on record are to the effect that the respondent - workman was appointed temporarily on 10.08.1988, for a period of three months as a daily wager. Upon completion of three months, she was re-engaged by fresh order dated 15.11.1988 for a period of another one month. Once again, an order dated 04.01.1988, was passed engaging her for a period of 30 days. Thereafter, she was not employed and against her non engagement/ re-employment, she raised a dispute before the Labour Court, Bhavnagar registered as Reference T. No. 208 of 1995. The Labour Court, Bhavnagar, upon adjudication directed the appellant-State to reinstate the respondent-workman to her original post with 20% back wages with continuity of service w.e.f. 31.03.1991. Aggrieved by the award of the Labour Court dated 30.08.2014, the appellant- State preferred Special Civil Application No. 6059 of 2015, wherein learned Single Judge while modifying the award dated 30.08.2014, held that the respondent - workman would not be entitled to reinstatement with effect from 31.03.1991 with 20% back wages and continuity of service but the workman would be entitled to reinstatement with effect from the date of employment of other employees through contractor. All the consequential benefits with continuity of service and back wages shall be made available accordingly. Aggrieved by aforesaid directions, present appeal is filed. 3. Heard Ms. Shruti Dhruve, learned Assistant Government Pleader for the appellant-State and Mr. Vishal Thakkar, learned advocate for respondent (workman). 4. Ms. All the consequential benefits with continuity of service and back wages shall be made available accordingly. Aggrieved by aforesaid directions, present appeal is filed. 3. Heard Ms. Shruti Dhruve, learned Assistant Government Pleader for the appellant-State and Mr. Vishal Thakkar, learned advocate for respondent (workman). 4. Ms. Dhruve, learned AGP for the appellant-State submitted that the judgment of learned Single Judge is erroneous, because the Court erred in not appreciating that initial engagement of the workman was only for a period of three months as a daily wager w.e.f. 10.08.1988 and thereafter she was re-employed for a further period of one month twice. Upon completion of the said period, the workman was not re-engaged or not given continuation of work and, therefore, once the employment of the workman was for limited period, the provision of Section 2(oo)(bb) would be applicable and, therefore, findings of Labour Court that there was breach of Section 25F, 25G and 25H of Industrial Disputes Act, 1947 (“the Act” for short) is erroneous. She submitted that in the written statement, it was case of the appellant-State that the respondent-workman was appointed w.e.f. 10.08.1988 for a period of three months. Thereafter, another order dated 15.11.1988 was passed whereby she was again re-employed for a period of one month. After that period of one month was over, she was again re-employed on 04.01.1988, for a period of one month and thereafter, she had not worked and, therefore, the assertion made in the statement of claim that she had continuously worked from 10.08.1984 to 31.01.1991 is factually incorrect. The seven years’ work period shown by the respondent-workman being not supported by any evidence, contrary to the written statement and not considered by the learned Single Judge, the judgment of Learned Single Judge deserves to be quashed and set aside on this ground. Further, as per the evidence on record particularly, Exh.28, Exh.29 and Exh.30 respectively, dated 16.08.1988, 15.11.1988 and 04.01.1989, the appointment of the respondent - workman was for a fixed period and therefore, once the period referred in the appointment order got over, the same would not fall within the preview of retrenchment as contended before the Labour Court as also before the learned Single Judge and non-consideration of Section 2(oo)(bb) of the Act needs interference of this Court. She strenuously submitted that since the appointment of respondent-workman was purely temporarily in nature, which is being supported by exhibits referred herein above and there is nothing to support the contention of the respondent-workman that she had continuously worked from 1984 till 1991, the judgment of the learned Single Judge being erroneous deserves to be quashed and set aside. Further, though the onus lies on the workman to establish her case for continuous employment and for completion of 240 days in a year to make the provisions of I.D. Act applicable, she being failed in doing so, this appeal deserves consideration. 5. In support of her submissions, she relied upon the decision in the case of Bhavnagar Municiapl Corporation vs. Salimbhai Umarbhai Mansuri, (2013) 14 SCC 456 to submit that Section 25H of the Act will only be applicable when there is an established retrenchment. Further, by placing reliance in the case of Haryana State Agricultural Marketing Board vs. Subhash Chand and Anr. (2006) 2 SCC 794 , she submitted that the question as to whether Chapter V-A will be applicable or not would dependent on the issue as to whether an order of retrenchment comes within the purview of Section 2(oo)(bb) of the Act or not. If the termination of service in view of the exception contained in clause (bb) of Section 2(oo) of the Act is not a retrenchment, the question of applicability of Chapter V-A thereof would not arise? 5.1. Learned AGP also relied upon following decisions in support of her submission that in case of contractual or temporary appointment provision of Section 2(oo)(bb), would apply. Section 25H, would apply only in cases of established retrenchment: (1) State of Rajasthan v. Sarjeet Singh & Anr. 2006 (8) SCC 508 (Relevant Paras 7 to 9, 14, 16) (2) J.J. Shrimali vs. District Development Officers (Relevant Paras 1, 16, 17) (3) State of Gujarat and Anr. vs. Lokendrasinh Pratapsinh Chauhan, 2017 SCC Online Guj 2886 (Relevant Paras 10.2, 11.1, 11.2, 13, 16) (4) Nilkamal Mangaldas Barot v. Khetivadi Utpanna Bajar Qamiti, 2014 SCC Online Guj 4673 (Relevant Paras 2, 4, 5) (5) Yunus Khan vs. Haryana Roadways through its General Manager, 2023 SCC Online Del 4191 (Relevant Paras 23, 25, 29) 5.2. She thus, strenuously submitted that judgment of learned Single Judge being erroneous deserves to be quashed and set-aside. 6. On the other hand, Mr. She thus, strenuously submitted that judgment of learned Single Judge being erroneous deserves to be quashed and set-aside. 6. On the other hand, Mr. Thakkar, learned advocate for the respondent -workman submitted that undisputedly the workman had worked for 240 days in a year and her employment with the appellant was established by orders at Exhs.28, 29 and 30. So far as completion of 240 days in a year to be proved, the respondent - workman had preferred an application below Exh.48 seeking production of documents. In response to the same, order was passed calling for muster-roll, pay-slips for the period from 1984 to 1991. The appellant on the directions for production of above documents had filed a pursis below Exh.53 that the said documents were not available with them and, therefore, adverse inference was rightly drawn. He also submitted that in the cross-examination of the witness of the appellant-State, Dr. Devarshi Ashwin Bhatt, had admitted that he could not produce any document to support that the workman was working for the period from 1984 to 1991 and was unaware of the same. He thus, submitted that the order of the earned Single Judge being appropriate and since there was breach of Section 25F, 25H and 25G, of the Act, the judgment of Learned Single judge deserves no interference. 7. Heard learned advocates appearing for the respective parties. Upon re-visitation of facts, it is noticed that in the statement of claim the respondent had stated that she was appointed from the year 1984 and thereafter continued till 1991 i.e. the year of her oral termination. It was her case that she worked continuously for more than seven years despite that, without following the provisions of I.D. Act, her services came to be terminated. In response to the statement of claim in the written statement filed by the appellant-State, it was stated that the respondent was appointed by order dated 10.08.1988 which was her first day of work. Thereafter, two orders were passed dated 15.11.1988 and 04.01.1989, where she was again re-employed for a period of 30 days respectively, and, therefore, the assertion of the respondent that she had worked for the period from 1984 to 1991 was not supported by any document and factually incorrect. Thereafter, two orders were passed dated 15.11.1988 and 04.01.1989, where she was again re-employed for a period of 30 days respectively, and, therefore, the assertion of the respondent that she had worked for the period from 1984 to 1991 was not supported by any document and factually incorrect. Pursuant to the above contradiction, an application was preferred by the workman below Exh.48 seeking production of documents wherein the order was passed to produce the documents namely, the muster-roll and pay-slips for the period from 1984 to 1991. Against the order of Labour Court directing production, a pursis was filed by the appellant-State below Exh.53 that they do not have the above record. We could not see any contention or averment that since the respondent was not appointed from the period from 1984 to 1991, we could not find any record of the concern workman in this regard. Further, in the cross-examination, a of witness of the appellant-State, Dr. Devarshi Ashwin Bhatt had stated that it is true that they failed in producing the muster-roll as well as the pay-slips. He further had stated that when the respondent was working, he was not in service and therefore, it was not possible for him to assert that whether the respondent was working for the period from 1984 to 1991 or not. The seniority list was also not produced and confirmed by the witness Dr. Devarshi Ashwin Bhatt in his cross-examination. Thus, from the above evidences on record, it is noticed that despite opportunity granted, the appellant-State failed in producing any document in relation to the non-appointment/ non-attendance of the respondent -workman from 1984 to 1991. Moreover, at no stage, except averment in written statement it was stated by appellant-State that the workman was not appointed from the year 1984, and therefore, we could not find the record. In our opinion, the State failed in establishing that the workman was not appointed from 1984 to 1991 and, therefore, in absence of any evidence, the Labour Court has rightly drawn the adverse inference and confirmed by the learned Single Judge. 8. Even in the pursis below Exh.53, it was stated by the appellant-State that they do not have the record and therefore, they did not want to lead any further evidence. 8. Even in the pursis below Exh.53, it was stated by the appellant-State that they do not have the record and therefore, they did not want to lead any further evidence. At that stage also, it was not stated by the appellant-State that since the respondent was not appointed from the year 1984, no records are available. Therefore, the contention raised that since the respondent-workman was appointed first time in the year 1884, she had not completed 7 years of service, would not merit acceptance. 9. Now taking the decisions relied upon by learned AGP, it is settled proposition of Law that, the question as to whether Chapter V-A of the Act will apply or not would be dependent on the issue as to whether an order of retrenchment comes within the purview of Section 2(oo)(bb) of the Act or not. If the termination of service in view of the exception contained in clause (bb) of Section 2(oo) of the Act is not a retrenchment, the question of applicability of Chapter V-A thereof would not arise. 10. However, noticing the facts of this case, in this case in our considered opinion, the appellant-State though the opportunity was granted failed in establishing that she had not continuously worked for the period from 1984 to 1991. We cannot ignore the cross-examination by the witness of the State who had stated that we do not have the record and the seniority list was also not available. Not once, he had stated that since the workman was not appointed, no records are available and, therefore, in our opinion, the learned Single Judge has rightly confirmed the view taken by the Labour Court. Further, the learned Single Judge has also taken note of the fact that after termination of the service of the respondent-workman, similarly situated workmen were appointed on contractual basis without offering work to the respondent – workman. Therefore, in our opinion the learned Single Judge has rightly held that there is breach of Section 25H of the Act. 11. At this stage, it has been pointed out by learned AGP that against the judgment dated 31.01.2017 in Special Civil Application No. 6059 of 2015, the present appeal was preferred wherein the Coordinate Bench of this Court by order dated 07.05.2018 directed the appellant-State to take the workman back in service as directed by the learned Single Judge. 11. At this stage, it has been pointed out by learned AGP that against the judgment dated 31.01.2017 in Special Civil Application No. 6059 of 2015, the present appeal was preferred wherein the Coordinate Bench of this Court by order dated 07.05.2018 directed the appellant-State to take the workman back in service as directed by the learned Single Judge. Pursuant to the order dated 07.05.2018, the appellate authorities passed an order dated 09.05.2018, taking the workman back in service. When the order was passed dated 09.05.2018, the appellant authorities were not aware that she had crossed the age of superannuation. The said fact was not pointed out by the respondent-workman. 12. Inviting attention of this Court to record, she submitted that the date of birth of workman is 18.11.1959 and therefore, she had attained the age of superannuation on 18.11.2017. Therefore, when the order dated 09.05.2018 was passed reinstating her, she had already attained the age of superannuation. The above fact came to the knowledge of the authorities at a later stage and, therefore, the order dated 05.03.2023 was passed relieving the respondent-workman from service. Thus, when the relieving order was passed, the respondent-workman had attained the age of 65 years. Learned AGP therefore, submitted that direction of the learned Single Judge for grant of benefit of reinstatement with effect from the date of employment of other employees through contractor and to grant all consequential benefits accordingly may be modified by permitting the appellant-State, to adjust the amount payable. 13. Considering the fact that though the respondent-workman had attained the age of superannuation on 18.11.2017, she worked till 05.06.2023, we deem it appropriate to modify the direction of the learned Single Judge to the extent that the appellant -state is permitted to adjust the payment made to the workman from the date of her attaining the age of superannuation till the order dated 05.06.2023, relieving her. 14. With above directions the Appeal stands disposed of.