Gujarat High Court
M/S. Sonil Ventil Fabrik vs Lakshmiben Devjibhai Rathod on 24 April, 2025
NEUTRAL CITATION
C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19968 of 2023
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 19968 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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M/S. SONIL VENTIL FABRIK
Versus
LAKSHMIBEN DEVJIBHAI RATHOD & ANR.
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Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No. 1
AAKASH D MODI(7449) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 24/04/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Modi waives service of Rule on behalf of the respondent No.1.
2. The present petition is filed under Article 226 of the Constitution of India thereby challenging the order passed by the learned labour court at Jamnagar in Page 1 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined Reference IT No.92 of 2017 dated 31.03.2023 by which the learned reference court has allowed the reference filed by the respondent workman by granting the relief of reinstatement and with the direction to pay the back wages of Rs.2,000/- from 15.02.2017 per month till the reinstatement.
3. It is the case of the present petitioner that reference came to be filed by the respondent workman claiming that she was wrongly terminated on 03.12.2016 after serving for three years as a permanent employee as well as despite completion of 240 days per year. On being referred the dispute to the learned labour court, the statement of claim came to be filed, against which the petitioner has filed the written statement. The application below Exh.12 came to be filed on 25.07.2018 seeking production of documents being attendance register, salary register, form No.3 A of Provident Fund Scheme and ESI related documents. The present petitioner filed a reply and the learned labour court has passed an order allowing the application on 23.12.2019 directing the present petitioner to produce the documents as sought for. As there were two references, Page 2 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined one which is filed by the daughter and the present reference is filed by the mother and in both the cases, dispute was identical in nature therefore, petitioner relied on the documents produced before the learned labour court below Exh.21 which was filed in the case of mother being reference case No.93 of 2017 which was heard alongwith the present reference being Reference IT No.92 of 2017. Reliance was placed on the member details of the employees provident fund online portal and form 3A suggesting the account number of the present respondent to establish that the date of termination is wrongly stated, as the respondent has worked up to 15.02.2017 and thereafter, abandoned from the service. Learned Presiding Officer, after considering the evidence adduced has awarded the reference in favour of the respondent, which is subject matter of challenge before this Court.
4. Heard learned advocate Ms.Megha Jani for the petitioner and learned advocate Mr.Akash Modi for the respondent.
5. Learned advocate Ms.Jani submits that learned labour court failed to appreciate the attendance register and Page 3 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined the salary register produced below Exh.21 in the case of Reference IT No.93 of 2017 suggesting that the work which was done by the respondent workman was only for the period from 01.04.2016 till 17.02.2017 and in these days the respondent did not complete the requirement of 240 days to establish the continuity of services. It is submitted by the learned advocate Ms.Jani that the member details available on online portal of the employee's provident fund organization suggests that the respondent workman has joined on 01.04.2016 and as per form 3 A prepared under the scheme name of claimant also records the entry only from April, 2016 which suggests that the claim made by the workman having worked for past three years is false and concocted. It is submitted by the learned advocate Ms.Jani that the learned labour court has committed an error in holding that the petitioner has worked for 240 days in the preceding year by counting the days of holidays. From the record even if these holidays were included in the working days of the respondent, then also indisputably this would come to 223 days which is less than 240 days.
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NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined
6. It is submitted by the learned advocate Ms.Jani that in the statement of claim, it is alleged that the respondent workman was terminated orally on 03.12.2016. However, attendance register produced before the learned labour court falsifies the case and concluded that the workman has worked up to 17.02.2017, therefore, for the purpose of computing the total number of continuous service for the preceding year as per the provision of section 25(B) of the ID Act would be from February, 2016 to January, 2017 the respondent did not complete 240 days. Learned advocate Ms.Jani submits that learned labour court has committed an error in drawing the adverse inference to believe the case of the respondent that workman has completed 240 days as the petitioner did not produce the documentary evidence of past three years as the case of the present petitioner was from the beginning that the respondent worked from 01.04.2016 till 17.02.2017. Learned advocate Ms.Jani submits that by misleading the court learned labour court has granted the relief of reinstatement with back wages of Rs.2,000/- per month. Learned advocate Ms.Jani submits that learned labor court has also Page 5 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined committed an error in holding that the petitioner has violated section 25(g) and 25(h) of the ID Act on presuming that as other employees are working, the present respondent was terminated by adopting unfair labour practice. Learned advocate Ms.Jani submits that when the respondent herself has abandoned the work, no question arises for violation of section 25(g) and 25(h) of the ID Act. In that background learned advocate submitted to set aside the impugned order and to allow the present petition.
7. As against the same, learned advocate Mr.Modi appearing for the respondent has submitted that the present respondent was paid monthly wages and completed 240 days in each preceding year. The petitioner company has not issued any appointment letter, salary slip, vouchers to the workman, therefore, to establish the case of the respondent workman, application below Exh.12 was filed seeking production of documents like the muster roll, attendance register for the period from 01.01.2014 to 31.12.2016. Though the said application was ordered in favour of the present respondent, the documents of one year has been filed, Page 6 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined therefore, learned labour court has rightly drawn the adverse inference as per the decision of Apex Court in the case of Director Dir.,Fisheries Terminal Division vs Bhikubhai Meghajibhai Chavda reported in AIR 2010 SC 1236. Learned advocate Mr.Modi submits that during the cross-examination of the witness of petitioner company, it is specifically admitted that the respondent workman has worked for four years, therefore, the learned labour court has rightly disbelieved the case of the present petitioner regarding working for one year with the petitioner employer. Learned advocate Mr.Modi submits that the learned labour court has added the days of holidays while calculating the service of 240 days and as per the decision rendered by the Apex Court in the case of Workmen Of American Express International vs Management Of American Express reported in 1984 4 SCC 71. It is submitted by the learned advocate Mr.Modi that after appreciating the oral as well as documentary evidence, learned reference court has allowed the reference in favour of the respondent. Learned advocate Mr.Modi submits that so far as the Page 7 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined breach of provision of section 25(g) and 25(h) of the ID Act is concerned, as per the law laid down by the Apex Court, the workman is not required to prove that he or she has worked for 240 days during the 12 months preceding the termination of the service. It is sufficient for the workman to plead and prove that while affecting retrenchment the employer has violated the rule of last come first go without tangible reasons and section 25(h) of the of the ID Act casts duty upon the employer to give an opportunity to retrench the workman to offer themselves for reemployment on the basis of preferential basis. After terminating the service of the present respondent workman, new workman have been appointed and engaged by the petitioner company without following the procedure prescribed under the provisions of section 25(g) and 25(h) of the ID Act and Rule 81 of the Gujarat Industrial Disputes Rule, 1966. Therefore, learned reference court has rightly concluded the reference in favour of the respondent.
8. It is submitted by the learned advocate Mr.Modi that despite ample opportunities were provided to produce the evidence in reference No.92 of 2017 the petitioner Page 8 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined fails to discharge the onus and to comply with the directions issued in the production application and the new documents which are produced in the writ court cannot be considered to fill up lacuna and plugging the loopholes, as the same would be detrimental and prejudicial to the workman. On ascertaining the non gainful employment in other establishment, learned reference court has rightly awarded the back wages of Rs.2,000/- per month along with relief of reinstatement and therefore, no interference in required.
9. Learned advocate Mr.Modi submits that once the workman asserts that he is not gainfully employed, the onus would shift on the employer positively and it would be for the employer to prove that the employee was a gainfull employed. Relying on the decision rendered by the Apex Court in the case of Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors reported in (2013) 10 SCC 324 and Gauri Shanker vs State Of Rajasthan reported in 2015 12 SCC 754, it is prayed by the learned advocate that no error has been committed by the learned labour court in granting the relief of reinstatement and back wages to the amount of Page 9 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined Rs.2000/-.
10. Having considered the arguments advanced by the learned advocates for respective parties, it emerges that the claim was raised before the learned labour court by the respondent workman that the workman was working since last three years and has been terminated on 03.12.2016 without following the procedure under the ID Act. To establish the case, the respondent workman, in addition to the disclosure in statement of claim has filed an application below Exh.12 seeking the production of documents from 01.01.2014 to 31.12.2016 like wage register, muster roll, provident fund form, ESI details etc. which was ordered in favour of the respondent. It is also undisputed fact that there were two references were proceeded together out of which one reference being reference IT No.93 of 2017 was filed by the daughter and the present reference being Reference IT No.92 of 2017 was filed by the mother. Petitioner has produced the documentary evidence in the Reference IT No.93 of 2017 as the nature of documents is identical in both cases and the reference court has also considered all the evidence which was produced in reference case Page 10 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined No.93 of 2017. The other reference was also awarded in the favour of the respondent who is the daughter of the present respondent, by directing lump sum compensation of Rs.33,000/- in lieu of reinstatement and back wages which remained unchallenged.
11. On referring the reasons, it emerges that the application below Exh.15, seeking the production of muster roll and wage register for the period of last three years was sought and the same was ordered in favour of the respondent. The termination date which was established by the present petitioner i.e. 15.02.2017, if one would consider, then the preceding year to consider the continuous service as defined under section 25(B) of the ID Act would be February, 2016 to January, 2017. The petitioner herein has produced the record from April, 2016 to February, 2017 stating that the work which was carried out by the respondent was of 181 days. It is claimed by the petitioner that as the petitioner joined the duties from 02.04.2016, therefore, the record for previous two months i.e. February, 2015 and March, 2016 was not required to be produced.
11.1. In the opinion of this Court the petitioner ought to Page 11 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined have left to the Court after producing the said document to ascertain that whether the work was carried out by the respondent from 02.04.2016 or from February, 2016. By not producing the same, the petitioner has tried to hide the evidence and therefore, learned reference court has rightly drawn the adverse inference against present petitioner for concluding that if the said evidence is produced that may lead to establishing the claim of 240 days. In addition to that, it is claimed by the petitioner that respondent has joined from 02.04.2016. The petitioner has also tried to place on record the form No.3A of the Employee's Provident Fund Scheme, suggesting that the deduction of the contribution was made from the month of May, 2016 and therefore, it can be presumed that the petitioner respondent has joined the duties in the month of April, 2016. This Court is of the view that as the said document is not a part of the reference proceedings it would be unfair if reliance would be placed on the said document as the respondent was not having any opportunity to rebut the said evidence before the learned labour court. 11.2. This Court has considered the decision rendered by Page 12 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined the Apex Court in the case of R.M. Yellatti vs The Asst. Executive Engineer, reported in (2006) 1 SCC 106, wherein, the Apex Court has held that the burden is on the claimant to show that he worked for 240 days in the 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 the services of daily wage earner, there will not be a letter of appointment or termination, neither any receipt or proof of payment, thus the workman 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 the case.
12. This Court has also considered the decision rendered in the case of Municipal Corporation, Faridabad Versus Siri Niwas reported in 2004 8 SCC 195 wherein, it is held that the court of law, even in case where provisions of Indian evidence Act Apply may presume or may not Page 13 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined presume that if a party, despite the possession of the best evidence had not produced the same, it would have gone against his contention. The matter, however, would be different when, despite directions by Court the evidence is with held. The presumption as to adverse inference for non production of evidence is optional and one of the factors which are required to be taken into consideration is background of facts involved in the lis. The presumption, thus is not obligatory because not withstanding intentional non production, other circumstances may exist with such intention of non production may be found justifiable on some reasonable ground.
13. In the instant case, the Industrial Court has drawn adverse inference against the present appellant, considering the fact that the petitioner intentionally withheld the attendance register for the period of two months. Hence in the opinion of this Court, when the best evidence which was with held by the petitioner to support his assertion on oath and he is not doing so, it would result in discrediting his word. Therefore, the learned reference court has rightly held the reference in Page 14 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined favour of the respondent by holding the termination illegal.
14. Now the question arises that when the termination is held illegal, whether the relief can be molded instead of granting reinstatement. This Court has referred the decision rendered by the Apex Court in the case of Telecom District Manager And Others vs Keshab Deb , reported in 2008 (8) SCC 402 wherein, it is held as under:-
"19. A Tribunal indisputably was entitled to exercise its jurisdiction for enforcement of a fundamental right.
20. In any event the appellants themselves raised the contention as regards the jurisdiction of the Tribunal. It may be true that no jurisdiction can be conferred by consent but this Court while exercising a discretionary jurisdiction under Article 136 of the Constitution of India is entitled to take note thereof. It may not allow a party to raise such a contention before it, having regard to its conduct.
21. The Tribunal and consequently the High Court were correct that the termination of the services of the respondent was illegal.
22. He, according to the appellants, has committed a misconduct. His services had been terminated on that ground. But therefore he was entitled to an opportunity of being heard. A regular departmental proceedings should have been initiated against him; the order of termination being stigmatic in nature. While, however, granting a relief, the superior courts should take into consideration the factors relevant therefor, which, in our opinion, Page 15 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined in the instant case are :-
a) Recruitment of the respondent was ex-facie illegal as prior thereto neither any advertisement was issued nor the employment exchange was notified in regard to the vacancy.
b) It does not appear that the respondent had even got himself registered with the Local Employment Exchange.
c) He being a daily rated casual employee did not have any right to continue in service.
23. . Even in a case where an order of termination is illegal, an automatic direction for reinstatement with full back wages is not contemplated. He was at best entitled to one month's pay in lieu of one month's notice and wages of 15 days of each completed years of service as envisaged under Section 25-F of the Industrial Disputes Act. He could not have been directed to be regularized in service or granted any given a temporary status.
Such a scheme has been held to be unconstitutional by this Court in A. Umarani vs. Registrar, Cooperative Societies and others : (2004) 7 SCC 112 and Secretary, State of Karnataka and Ors. vs. Umadevi and Ors. (2006) 4 SCC 1." 14.1. As this Court has upheld the order of learned labour court on violation of section 25(F) of the ID Act, other aspects regarding the breach of section 25(g) and 25(h) of the ID Act is not required to be discussed.
15. Considering the above decision and considering the tenure of service this court is of the view that if the compensation of Rs.1,00,000/- would be awarded in lieu of reinstatement as well as back wages then ends of Page 16 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025 NEUTRAL CITATION C/SCA/19968/2023 JUDGMENT DATED: 24/04/2025 undefined justice would meet.
16. Resultantly, this petition is partly allowed.
17. The petitioner is directed to pay the amount of Rs.1,00,000/- towards lump sum compensation in lieu of the reinstatement as well as back wages.
18. Rule made absolute to the above extent. ORDER IN CIVIL APPLICATION NO. 1 of 2024 In view of the order passed in Special Civil Application No.19968 of 2023, Civil Application is also disposed of.
(M. K. THAKKER,J) NIVYA A. NAIR Page 17 of 17 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:09:30 IST 2025