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2025 DIGILAW 278 (GUJ)

State of Gujarat v. Chaganbhai Bhemabhai Damor

2025-03-17

A.S.SUPEHIA, NISHA M.THAKORE

body2025
JUDGMENT : (A.S. SUPEHIA, J.) 1. With consent of learned advocates appearing for the respective parties, the present appeal has been finally heard and disposed of by this judgment and order. 2. The present Letters Patent Appeal emanates from the judgment and order dated 20.09.2022 passed by learned Single Judge in the captioned writ petition filed by the appellant-State, dismissing the same. There were cross writ petitions filed by the workmen as well as the appellant-State assailing the award of the Labour Court dated 20.04.2019 passed in Reference (T) No.755 of 2000 (old Reference No.397 of 1993), the learned Single Judge has dismissed both the writ petitions. Being aggrieved, the State has filed the present appeal. 3. The respondent workman was engaged on monthly salary of Rs.1,750/- and their services were terminated on 31.12.1991, which gave rise to the reference proceedings. The Labour Court directed the appellant-State to reinstate the workman in service without back wages by setting aside their termination. 4. Learned AGP Ms. Shruti Dhruve appearing for the appellant- State has submitted that the Labour Court as well as the learned Single Judge have fell in error in directing the reinstatement of the respondent-workman by holding the termination as illegal and in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter to be referred as, “I.D. Act”). She has submitted that in fact, the Labour Court was also impressed of the fact that after the discontinuation of the respondent-workman, for which, he was engaged, the appellant-State Department had engaged some labourers on contractual basis, and such fact has been held against the appellant State. She has further submitted that the Labour Court has not categorically held the termination of the respondent workman in violation of the provisions of Section 25G of the I.D. Act. 4.1 While inviting the findings of the Labour Court, learned AGP has submitted that an adverse inference has been drawn against the appellant Department for non production of the muster rolls prior to year-1991. She has submitted that in fact, the appellant Department had categorically contended before the Labour Court that the respondent workman was only engaged for the period from January- 1991 to June-1991, and had only worked for 179 days and the documentary evidences in this regard, were also produced. She has submitted that in fact, the appellant Department had categorically contended before the Labour Court that the respondent workman was only engaged for the period from January- 1991 to June-1991, and had only worked for 179 days and the documentary evidences in this regard, were also produced. However, the Labour Court has directed the appellant Department to reinstate the respondent workman by holding that the appellant Department has deliberately suppressed the muster rolls for the period prior to the year-1991. It is also submitted that the appellant Department cannot be coerced to produce the muster rolls, which are not in existence as the workman was not engaged prior to year-1991. 4.2 Learned AGP has further submitted that in fact, the respondent- workman has failed to establish his appointment in the year-1989 and has only made a bald statement that he was engaged on 01.09.1989, however, no evidence in this regard has been produced before the Labour Court. Thus, she has submitted that the award passed by the Labour Court as confirmed by the learned Single Judge, may be set aside. 5. Fervently opposing the present appeal, learned advocate Mr. Paresh J. Brahmbhatt appearing for the respondent-workman has urged that the award passed by the Labour Court and the judgment and order passed by the learned Single Judge confirming such award, may not be set aside as the same is precisely passed after appreciating the evidence. It is submitted that even if it is assumed that the respondent workman had worked for a very short period, he cannot be denied reinstatement, in case his termination is found to be illegal. In support of his submissions, he has placed reliance on the judgment of the Supreme Court in the case of Samishta Dube vs City Board, Etawah and Anr. (1999) 3 SCC 14 . While placing reliance on the said judgment, it is submitted that the Labour Court has specifically recorded that after the respondent-workman was terminated, there are some workers, who are appointed on contractual basis, and hence, there would be violation of rule of “first come, last go” as stipulated in Section 25G of the I.D. Act. 5.1 Learned advocate Mr. While placing reliance on the said judgment, it is submitted that the Labour Court has specifically recorded that after the respondent-workman was terminated, there are some workers, who are appointed on contractual basis, and hence, there would be violation of rule of “first come, last go” as stipulated in Section 25G of the I.D. Act. 5.1 Learned advocate Mr. Brahmbhatt has submitted that the Labour Court has categorically recorded that despite the opportunity extended to the appellant’s Department to produce the muster rolls prior to year-1991, they have not produced the same, and hence, the Labour Court has precisely drawn an adverse inference against the appellant Department. It is submitted that the evidence as discussed by the Labour Court establishes that the respondent workman was employed in the year-1989, and thereafter, was terminated in the year-1991, and since, no material evidence was produced by the appellant Department before the Labour Court to prove the contrary, his termination is found to be illegal in violation of provisions of Sections 25F and 25G of the I.D. Act. In support of his submissions, he has placed reliance on the judgment of the Supreme Court in the case of Bhuvnesh Kumar Dwivedi vs Hindalco Industries Ltd ., (2014) 11 S.C.C. 85 . Reliance is also placed by learned advocate Mr. Brahmbhatt on the judgment of the Coordinate Bench dated 30.08.2024 passed in Letters Patent Appeal No.734 of 2019. Thus, it is urged that the award passed by the Labour Court as confirmed by the learned Single Judge, may not be interfered with. 6. We have heard the learned advocates for the respective parties at length and have perused the award and the evidence as pointed out by them. It is the case of the respondent workman that he was appointed or engaged for the work on 01.09.1989 and had worked continuously till 31.12.1991 for a period of 240 days, and thereafter, he has been terminated illegally without following the provisions of Section 25F of the I.D. Act. 7. We have perused the findings of the Labour Court in this regard. A perusal of the evidence on record reveals that except a bald statement made in the statement of claim, the appellant has even failed to prove his appointment or engagement on work from 01.09.1989. 7. We have perused the findings of the Labour Court in this regard. A perusal of the evidence on record reveals that except a bald statement made in the statement of claim, the appellant has even failed to prove his appointment or engagement on work from 01.09.1989. Since in the statement of the demands, such assertion was made by the respondent workman, the Labour Court directed the respondent to produce the muster rolls from year- 1989 to 1991. Accordingly, the appellant Department produced the muster rolls for the period from January-1991 to June-1991. The Labour Court had categorically recorded the defence of the appellant Department, wherein they have asserted that except this period, the respondent- workman was never engaged by them. We have perused the muster rolls for the aforesaid period and his engagement, which was made on 06.12.1991. The documentary evidence produced by the Deputy Executive Engineer, Panam Dam Sub-Division, Panam Dam Colony, categorically reveals that he was engaged as a casual labourer for remedial measures for patches no.3430 to 3800 and for restoration of the Canal work. Thus, the documentary evidence specifically establishes that he was only engaged for specific work for repair work for a particular patch of the Canal. The Labour Court has drawn an adverse inference against the appellant Department on this count, and it is presumed that the respondent workman was engaged from 01.09.1989 to 31.12.1991. 8. Such an approach of the Labour Court cannot be countenanced, since the appellant cannot be directed to produce a document, which was not in existence in wake of the fact that the respondent workman has failed to prove that he was engaged on 01.09.1989 and had continuously worked till 31.12.1991. 9. At this stage, we may refer to the decision of the Supreme Court in the case of R.M. Yellatti vs. The Asst. Executive Engineer, 2006 (1) SCC 106 . Relevant observation of the same reads as under: “17. Analyzing 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. 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 earner, 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 (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 facts of each case. The above decisions however make it clear that mere afÏdavits or self-serving statements made by the claimant/workman will not sufÏce 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 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 facts of each case.” 10. We may, also refer to the decision of the Supreme Court in the case of Surendranagar District Panchayat vs. Dahyabhai Amarsinh, 2005 (8) SCC 750 . Relevant observations of the same read as under: “18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non- compliance of Sections 25G and 25H sufÏce is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved.” 11. The Supreme Court has categorically held that drawing of adverse inference with regard to the burden of proof of working for 240 days, would depend on facts of each case. It is further held that mere afÏdavits or self serving statements made by the claimant workman will not sufÏce in the matter of discharge of burden placed by law on the workman to prove that he had worked for 240 days days in a given year. 12. In the present case, the workman has not produced any documentary evidence or oral evidence in the form of the evidence of his colleagues engaged at that time or any contemporaneous record to prove that he was actually engaged on 01.09.1989 and had continued till 31.12.1991 and had completed 240 days prior to his termination . The workman has also not taken any plea of suppression of muster roll. In such circumstances, when the appellant Department had categorically contended that the respondent was never engaged by them prior to year-1991 and hence they could not produce any documentary evidence, the Labour Court was not justified in drawing an adverse interference against the appellant Department for non- production of the documentary evidence pointing out the engagement of the respondent workman prior to the year-1991. Thus, the findings recorded by the Labour Court with regard to the violation of the provisions of Section 25F of the I.D. Act do not reconcile with the evidence on record. 13. There is another aspect which has also weighed upon the Labour Court in holding the termination of the respondent workman as illegal. The Labour Court while answering the issue no.9, which is “Is the second party entitled to be reinstated in service” has held that since the appellant Department has failed to prove that the work for which, the respondent workman was engaged, was not completely stopped and since such work was undertaken on contractual basis; the respondent is entitled to for reinstatement in service. 14. We do not endorse the findings of the Labour Court in this regard also. 14. We do not endorse the findings of the Labour Court in this regard also. The Labour Court has not held that the termination of the respondent workman is in violation of Section 25G of the I.D. Act. In fact, no issue in this regard has been framed by the Labour Court while framing 11 issues. It is not recorded that the appellant Department was maintaining any seniority of the respondent workman, and there was violation of principle of “last come, first go” as envisaged under Section 25G of the I.D. Act. 15. Thus, in absence of any issue framed by the Labour Court, and in wake of the fact that there was no proof or evidence, which existed on record indicating that the appellant Department was maintaining any seniority list or any juniors were retained by the appellant, the Labour Court has fell in error in directing the appellant to reinstate the respondent. 16. Judgments on which the reliance is placed by learned advocate Mr. Brahmbhatt for the respondent cannot come to the rescue of the respondent workman as the same would not apply to the facts of the case. There cannot be an cavil on the proposition of law as envisaged by the Supreme Court and this Court in the aforenoted judgments, however, in wake of the establish facts of the present case, we are not inclined to apply the legal precedent set out in the aforesaid judgments. 17. Thus, on the overall appreciation of the award passed by the Labour Court, we find that the workman has miserably failed to establish that he was engaged for more than 240 days in a year, and also coupled with the fact that no person junior to him was continued at the time of his termination of his services, we find that the Labour Court has fell in gross error in directing the reinstatement of the respondent workman. Similarly, we find error in the judgment and order passed by the learned Single Judge in confirming the award passed by the Labour Court. We also find that the learned Single Judge has placed reliance on the judgment of the Supreme Court in the case of Gauri Shanker vs. State of Rajasthan, 2015 (5) SCALE 275 , in confirming the award. We also find that the learned Single Judge has placed reliance on the judgment of the Supreme Court in the case of Gauri Shanker vs. State of Rajasthan, 2015 (5) SCALE 275 , in confirming the award. However, the facts therein suggest that there was an undisputed fact about the tenure of service rendered by the workman for a period of more than 240 days. Whereas, in the present case, the appellant Department has categorically contended before the Labour Court and before this Court that except the aforesaid period of 179 days, the workman was never engaged by them. 18. The appeal, therefore, succeeds . The impugned judgment and order dated 20.09.2022 passed by the learned Single Judge in captioned writ petition as well as the award dated 20.04.2019 passed by the Labour Court in Reference (T) No.755 of 2000 (old Reference No.397 of 1993), are hereby quashed and set aside. Connected civil application also stands disposed of, accordingly.