Gujarat High Court
Kalubhai Dhulabhai Bamaniya vs Deputy Executive Engineer on 4 December, 2025
NEUTRAL CITATION
C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15130 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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KALUBHAI DHULABHAI BAMANIYA
Versus
DEPUTY EXECUTIVE ENGINEER & ANR.
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MS SWEETY SAMARA AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/12/2025
ORAL JUDGMENT
1. Present petition is filed by the petitioner workman under Articles 14, 21, 226 and 227 of the Constitution of India read with the provisions of the Industrial Disputes Act, 1947 against the impugned award dated 18.05.2018 passed by the Labour Court, Godhra in Reference (T) No. 338 of 1999 with below mentioned relief/s:-
"(A) A writ of certiorari and/or a writ in the nature of certiorari and / or any other appropriate writ, order of direction be issued to quash and set aside impugned award dated 18.05.2018 passed by Labour Court, Godhra, in Page 1 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined Reference (T) No.338 of 1999 qua not allowing the Reference of the petitioner in full and further may be pleased to direct the respondents to reinstate petitioner in service with continuity and pay full back wages and all consequential benefits to the petitioner until the date of his retirement and after the date of retirement, petitioner may be held entitled to all the retirement benefits including pension, gratuity, leave encashment and other retirement benefits treating petitioner's service continuous;
(B) Pending the admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct respondents to confer pensionary benefits to the petitioner since the petitioner has reached age of superannuation.
(C) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice, may kindly be granted."
2. Heard Dipak R. Dave, learned Counsel for the petitioner and Ms. Samara, learned Assistant Government Pleader for the respondent.
3. Mr. Dipak R. Dave, learned Counsel for the petitioner submits that in case of the similarly situated workmen, who have terminated by the respondent employer, serving in the same irrigation department, this Court vide order dated 14.2.2020/20.1.2020 allowed Special Civil Application No. 22362 of 2019 and allied petitions and granted benefits to the Page 2 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined concerned workmen. It is submitted that in the similar cases of very department at very canal division in Special civil Application No.2205 of 2023, this court has while modifying award of lumpsum compensation granted relief of considering the service of the employee as continuous until he reached age of superannuation. Mr. Dave, learned Counsel for the petitioner has submitted that though the Labour Court has observed that the respondent has not produced any documents however, Labour Court has not considered this fact and therefore, while passing the impugned award the Labour Court has committed serious error and therefore, the impugned award passed by the Labour Court is erroneous, unjust, illegal. Mr. Dave, learned Counsel for the petitioner has submitted that the Labour Court has observed that all the issues are proved by the petitioner by material and cogent evidence however, merely on conjectures and surmises that the petitioner reached to the age of superannuation, the Labour Court has awarded lumpsum compensation to the tune of Rs.2,00,000/- which is bad in law and not in consonance with the settled legal principle.
3.1 Mr. Dave, learned Counsel for the petitioner, in support of his submissions, relied upon and referred to the decisions of the coordinate bench of this Court in Special Civil Application No.22362 of 2019 and allied petitions, Special Civil Application No. 4168 of 2022 with Special Civil Application No.4198 of 2022 and the order passed by the Page 3 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined Hon'ble Division Bench of this Court in Letters Patent Appeal No.389 of 2024 and urges that the impugned award passed by the Labour Court be modified.
3.2 Mr. Dave, learned Counsel for the petitioner has submitted that the order passed by the learned Single Judge in favour of the concerned workman is further carried in Appeal by the State before the Division Bench by way of preferring Letters Patent Appeal No. 389 of 2024 and the Hon'ble Division Bench vide order dated 7.8.2024 confirmed the said order and rejected the Letters Patent Appeal No. 389 of 2024 filed by the State and therefore, similar order may be passed in present petition also.
4. Per contra, Ms. Samara, learned Assistant Government Pleader for the respondent has strongly opposed and objected present petition by and submitted that the petitioner workman has not proved that he has worked in the said Canal and there was no documentary evidence produced by the petitioner and therefore, Labour Court has rightly passed the impugned order and awarded lumpsum compensation to the tune of Rs.2,00,000/- in lieu of reinstatement and other benefits, which is in consonance with the facts of present case and in consonance with the settled legal principle and therefore, no interference is required to be called for in present petition.
4.1 In view of the above submissions, Ms. S a m a r a , Page 4 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined learned Assistant Government Pleader for the respondent urges before the Court that present petition may not be entertained and the same may be rejected and impugned order passed by the Labour Court may be confirmed, since the impugned order passed by the Labour Court is in consonance with the settled legal principle and the same is passed after taking into account the relevant aspect/facts and documentary evidence.
5. I have considered the material and relevant documents placed on record. I have also gone through the record of the petition as well as the impugned award passed by the Labour Court and the relevant papers appended to the petition.
6. It appears that the issue involved in present petition has already been decided by two different coordinate benches of this Court wherein services of similarly situated workmen, who were working in the same office and at the same site came to be terminated and the workmen have challenged the said order of termination before the Labour Court and Labour Court has awarded lumpsum compensation by rejecting the order of reinstatement. The said order was challenged by the concerned workmen before this Court by way of preferring Special Civil Application No.22362 of 2019 and allied petition, whereby after hearing the parties, the coordinate bench of this Court has passed an order dated 14.2.2020/20.1.2020 and allowed the group of Page 5 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined petitions. In the said decision the co-ordinate bench of this Court in paragraph Nos. 9, 10 and 11 has observed as under:-
"9. So far as the petitions of the State are concerned, this Court notices that in Special Civil Application No. 14096 of 2018 and allied matters, on 22.10.2019, this Court considered in detail the rival stand of the parties and held against the Government. Profitably, the details are reproduced with reasons herein under:-
"6.1. Learned AGP has fervently argued before this Court that the petitioner is not an industry as pointed out earlier also and moreover, the Labour Court has disregarded the fact that none of the respondents has completed 240 days. Overlooking that vital aspect, the Court has passed the judgment and award. He further has urged that it was firstly the onus upon the respondent to prove the claim of completion of 240 days and thereafter of proving other factual details which they have been pleading. He has urged the Court that these are the matters which deserve to be allowed as completely wrong, erroneous and unsustainable approach as has been adopted by the Labour Court. Learned AGP has submitted that the earlier references had been rejected for want of prosecution of course and not on merits.
6.2. Per contra, learned advocate Mr. Dave appearing for respondent no.1 has fervently and strenuously argued before this Court that not only this Court in Special Civil Application No. 12521 of 2018 and allied matters has decided the very issue which has been raised in the present petitions, but, the Apex Court has also concluded the aspect of government being the industry under Section 2(j) of the ID Act in case of Des Raj vs. State of Punjab. He has further submitted that it is not only the completion of 240 days, but, the breach of Section 25 (G) and (H) shall need to be regarded by the Court. He heavily relied on the Page 6 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined decision of this Court in the case of Zonal Manager State Bank of India vs. Modi Rajeshkumar Shantilal.
7. Having thus heard both the sides and also considering the various decisions which have been pressed into service, firstly the issue raised before this Court is that the petitioner is an industry as per the provisions of Section 2(j) of the ID Act. The Apex Court way-back in the year 1988 in the case of Des Raj vs. State of Punjab, reported in 1988 (2) SCC 537, has considered that the Irrigation Department of the Government is an Industry as its main function when subjected to the dominant nature test, clearly came within the ambit of industry. The Court has further held that it had been indicated that the position should be clarified by an appropriate amendment, keeping in view the Supreme Court's opinion. The appellant was T.Mate in P.W.D. Drainage Division. When his services came to be terminated, he challenged the termination before the Labour Court and in remaining appeal the appellant was the operator in the Mechanical Division under the Irrigation Department of State of Haryana, whose services came to be terminated disputing the validity of such order. In each of the cases the challenge advanced by the governmental authority was the maintainability of the application, on the ground that the employer was not an industry and the Act did not apply. This objection was upheld by the Labour Court and it declined relief to the employees. When challenged before the Apex Court, the Court held thus:-
" 4. The definition of 'industry' occurring in Section 2 of the Act has now to be seen. The Act defines 'industry' in Section 2(J) to mean:
"any business, trade undertaking, manufacturer or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen. " By Section 2(c) of the Amending Act (46 of 1982), this definition has been amended but the Page 7 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined amendment has not yet been brought into force. The amended definition of "industry" is as follows: "Industry means any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,-
(i) any capital has been invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948;
(b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include-
(1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one, Explanation:- For the purposes of this subclause, 'agricultural operation' does not include any activity carried on in a 621 plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951; or (2) hospitals or dispensaries; or (3) educational, scientific, research or training institutions; or (4)institutions owned or managed by organization wholly or substantially engaged in any charitable, social or philanthropic service; or (5) khadi or village industries; or Page 8 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or (7) any domestic service; or (8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or (9) any activity, being an activity carried on by a cooperative society or a club or any other like body of individuals, if the number of persons employed by the cooperative society, club or other like body of individuals in relation to such activity is less than ten;"
Since the amended statutory definition is not yet in force, the parent definition and judicial pronouncements have to be referred to for finding the law. The field is covered by pronouncements of this Court and it is not necessary to go beyond these precedents. In case the Irrigation Department is accepted to be "industry", there is no dispute that each of the appellants would be a "workman" and each of the claims would constitute an "industrial dispute" as defined in Section 2(s) and (k) respectively.
5. A five-Judge Bench in D.N. Banerji v. P.R. Mukherjee & Ors., 622 [1953] SCR 302 considered the scope of the definition of industry. Chandrashekhara Aiyer, J. speaking for the Court stated:
"It is therefore incumbent on us to ascertain what the statute means by industry and industrial dispute, leaving aside the original meaning attributed to the words in a simpler state of society, when we had only one employer perhaps, doing a particular trade or carrying on a particular business with the help of his own tools, material and skill Page 9 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined and employing a few workmen in the process of production or manufacture, and when such disputes that occurred did not go behind individual levels into acute fights between rival organisations of workmen and employers; and when large scale strikes and lock- outs throwing society into chaos and confusion were practically unknown. Legislation had to keep pace with the march of times and to provide for new situations. Social evolution is a process of constant growth, and the State cannot afford to stand still without taking adequate measures by means of legislation to solve large and momentous problems that arise in the industrial field from day to day almost .. When our Act came to be passed, labour disputes had already assumed big proportions, and there were clashes between workmen and employers in several instances. We can assume therefore that it was to meet such a situation that the Act was enacted, and it is consequently necessary to give the terms employed in the Act referring to such disputes as wide an import as reasonably possible. Do the definitions of industry, industrial dispute and workman take in the extended significance or exclude it? Though the word undertaking in the definition of industry is wedged in between business and trade on the one hand and manufacture on the other, and though therefore it might mean only a business or trade undertaking, still it must be remembered that if that were so, there was no need to use the word separately from business or trade. The wider import is attracted even more clearly when we look at the latter part of the definition which refers to calling, service, employment or industrial occupation or avocation of workmen. Undertaking in the first part of the definition and industrial occupation or avocation in the second part obviously mean much more than what is ordinarily understood by trade or business. The definition was apparently intended to 623 include within its scope what might not strictly be called a trade or business venture." The ratio in Mukherjee's case was relied upon by a three- Judge Bench in State of Bombay & Ors. v. The Hospital Mazdoor Sabha & Ors., [1960] 2 SCR 866 and Page 10 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined Gajendragadkar, J. who spoke for the Bench observed: "There is another point which cannot be ignored. Section 2(j) does not define industry in the usual manner by prescribing what it means: the first clause of the definition gives the statutory meaning of industry and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation."
"Besides, it would be relevant to point out that too much reliance cannot be placed on what are described as the essential attributes or features of trade or business as conventionally understood. The conventional meaning attributed to the words trade and business has lost some of its validity for the purpose of industrial adjudication. Industrial adjudication has necessarily to be aware of the current of socio- economic thought around; it must recognize that in the modern welfare State healthy industrial relations are a matter of paramount importance and its essential function is to assist the State by helping a solution of industrial disputes which constitute a distinct and persistent phenomenon of modern industrialised States in attempting to solve industrial disputes, industrial adjudication does not and should not adopt a doctrinaire approach. lt must evolve some working principles and should generally avoid formulating or adopting abstract generalisations. Nevertheless it can't harp back to old age notions about the relations between employer and the employee or to the doctrine of laissez faire which then governed the regulation of the said relations. That is why, we think, in construing the wide words used in section 2(j) it would be erroneous to attach undue importance to the attributes 624 associated with business or trade in the popular mind in days gone by."Page 11 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025
NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined The Bench thereafter adverted to the negative side and stated:
"It would be possible to exclude some activities from section 2(j) without any difficulty. Negatively stated the activities of the Government which can be properly described as regal or sovereign activities are outside the scope of section 2(j). These are functions which a constitutional government can and must undertake for governance and which no private citizen can undertake. This position is not in dispute. An attempt is, however, made by the appellant to suggest that in view of the Directive Principles enunciated in Part IV of the Constitution and in view of the ideal of a welfare state which has been placed before the country, Governments, both at the level of States as well as at the Centre undertake several welfare activities; and the argument is that the field of governmental or regal activities which are excluded from the operation of section 2(j) should be extended to cover other activities undertaken by the Governments in pursuit of their welfare policies. In our opinion, this contention cannot be accepted. The activities which do not fall within section 2(j) and which are described as governmental or regal or sovereign have been pithily described by Lord Watson as 'the primary and inalienable functions of a constitutional Government'; and it is only these activities that are outside the scope of section 2(j). It sounds incongruous and self-contradictory to suggest that activities undertaken by the Government in the interests of socio-economic progress of the country as beneficial measures should be exempted from the operation of the Act which in substance is a very important beneficial measure itself." Applying the stated principles, this Court in that case held that the J.J. Group of Hospitals came within the definition of industry.
6. Within a couple of weeks from the Hospital Mazdoor Sabha's case (supra), the same Bench in the case of Corporation of the City of Nagpur v. Its Employees, [1960] 2 SCR 942, this time Subba Rao, J., as he then was, Page 12 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined speaking for the Court examined the self-same question. Before the Court were available two precedents - Mukherjee's case 625 (supra) and Hospital Mazdoor Sabha's case (supra) and it was stated:
"Before considering the positive aspects of the definition, what is not an industry may be considered. However wide the definition of industry may be, it cannot include the regal or soveriegn functions of State. This is the agreed basis of the arguments at the Bar though the learned counsel differed on the ambit of such functions. While the learned counsel for the Corporation would like to enlarge the scope of these functions so as to comprehend all the welfare activities of a modern State, the learned counsel for the respondents would seek to confine them to what are aptly termed the primary and inalienable functions of a constitutional Government " The Court analysed the activities of the various departments of the Corporation and observed: "We can also visualize different situations. A particular activity of a municipality may be covered by the definition of industry. If the financial and administrative departments are slowly in charge of that activity, there can be no difficulty in treating those two departments also as part of the industry. But there may be cases where the said two departments may not only be in charge of a particular activity or service covered by the definition of industry but also in charge of other activity or activities falling outside the definition of industry. In such cases a working rule may be evolved to advance social justice consistent with the principles of equity. In such cases the solution to the problem depends upon the answer to the question whether such a department is primarily and predominantly concerned with industrial activity or incidentall connected therewith. "
"The result of the discussion may be summarised thus:
(1) the definition of industry in the Act is very comprehensive. It is in two parts one part defines it from the stand point of the employer and the other from the Page 13 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined stand point of the employee. If an activity falls under either part of the definition it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognises the basic concept that the activity shall be an organized one and not that which pertains to private or personal A employment. (3) The regal functions prescribed as primary and inalienable functions of State though statutorily delegated to a corporation or necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power, administration of law and judicial power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry, the employees in the department connected with that service, whether financial, administrative or executive, would be entitled to the benefits of the Act. (6) If a department of a municipality discharges many functions some pertaining to industry as defined in the Act and the other non-
industrial activities, the predominant functions of the department shall be the criterion for the purposes of the Act." Applying these tests, this Court examined as to whether the various departments of the Corporation came within the definition or not. Then came the decision of a Constitution Bench in the case of Management of Safdarjung Hospital v. Kuldip Singh Sethi, [1971] 1 SCR 177 where Chief Justice Hidayatullah spoke for the Court. Referring to the definition of industry. The learned Chief Justice observed:
"This definition is in two parts. The first part says that it means any business, trade, undertaking, manufacture or calling of employers and then goes on to say that includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen .. ".
"Therefore, an industry is to be found when the Page 14 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined employers are carrying on any business, trade, undertaking, manufacture or calling of employers. If they are not, there is no industry as such. What is meant by these expressions was discussed in a large number of cases which have been considered elaborately in the Gymkhana Club case [1968] 1 SCR 742. The conclusions in that case may be stated:
'Primarily, therefore, industrial disputes occur when operation undertaken rests upon cooperation between employer and employees with a view to production and distribution of material goods, in other 627 words, wealth, but they may arise also in cases where the cooperation is to produce material services. The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expressions trade, business or manufacture.' "
In Safdarjung Hospital's case the decision in Hospital Mazdoor Sabha case was analysed and the Court came to the following conclusion:
"In our judgment, the Hospital Mazdoor Sabha's case took the extreme view of the matter which was not justified. "
Then came the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa & Ors [1978] 2 SCC 213. This time the same point was before a seven-Judge Bench of this Court. This judgment undertood a review of the entire law. Krishna Iyer, J. spoke for himself, Bhagwati and Desai, JJ. In paragraph 139 of the judgment it was stated:
"Banerjee (supra) amplified by Corporation of Nagpur (supra), in effect met with its waterloo in Safdarjung (supra). But in this latter case two voices could be herard and subsequent rulings zigzagged and conflicted precisely because of this built-in ambivalence. It behoves us, therefore, hopefully to abolish blurred edges, illumine penumbral areas and overrule what we regard Page 15 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined as wrong. Hesistency, halftones and hunting with the hounds and running with the hare can claim heavy penalty in the shape of industrial confusion, adjudicatory quandary and administrative perplexity at a time when the nation is striving to promote employment through diverse strategies which need, for their smooth fulfilment, less stress and distress, more mutual understanding and trust based on a dynamic rule of law which speaks clearly, firmly and humanely. If the salt of law lose its savour of progressive certainty where with small it be stalled? So we proceed to formulate the principles, deducible from our discussion which are decisive, positively and negatively, of the identity of industry under the Act. We speak, not exhaustively, but to the extent covered by the debate at the bar and, to that extent, authoritatively, until overruled by a larger bench or superseded by the legislative branch."
"Industry as defined in section 2(j) and explained in Banerjee (supra) has a wide import.
(a) Where (i) systematic activity, (ii) organised by cooperation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an industry in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-
employee relations.
(d) If the organisation is a trade or business it does not cease Page 16 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined to be one because of philanthropy animating the undertaking.
Although section 2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to over-reach itself. Undertaking must suffer a contextual and associational shrinkage as explained in Banerjee and in this judgment; so also, service, calling and the like. This yields the inference that all organized activities possessing the triple elements in I, although not trade or business, may still be industry provided the nature of the activity, viz. the employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold of industry undertakings, callings and services, adventures 'analogous to the carrying on of the trade or business'. All features, other than the methodology of carrying on the activity viz. In organizing the cooperation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more.
(a) The consequences are (i) professions, (ii) clubs, (iii) educational institutions, (h) cooperatives, (v) research institutes, (vi) charitable projects and (vii) other kindred adventures, if they fulfil the triple tests listed in I cannot be exempted from the scope of section 2(j).
(b) A restricted category of professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantial and, going by the dominant nature criterion, Page 17 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit.
(c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or case, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt- not other generosity, compassion, developmental passion or project.
The dominant nature test:
(a) Where a complex of activities, some of which qualify for exemption others not, involves employees on the total undertaking, some of whom are not workmen as in 630 the University of Delhi v.Ram Nath, [1964] 2 SCR 703 or A some departments are not productive of goodsand services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be the true test. The whole undertaking will be industry although those who are not workmen by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies.
(c) Even in departments discharging sovereign Page 18 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby."
7. Beg, CJ., wrote a separate judgment and prefaced it by saying:
"I am in general agreement with the line of thinking adopted and the conclusions reached by my learned brother Krishna Iyer."
In paragraph 149 of the judgment, the learned Chief Justice observed:
"In his heroic efforts, my learned brother Krishna Iyer, if I may say so with great respect, has not discarded the tests of industry formulated in the past. Indeed, he has actually restored the tests laid down by this Court in D.N. Banerjee's case, and, after that, in Corporation of the City of Nagpur v. Its Employees, and State of Bombay v. The Hospital Mazdoor Sabha to their pristine glory."
The learned Chief Justice again stated:
"Each of us is likely to have a subjective notion about industry. For objectivity, we have to look first to the words 631 used in the statutory provision defining industry in an attempt to find the meaning. If that meaning is clear, we need proceed no further. But, the trouble here is that the words found there do not yield a meaning so readily. They refer to what employers or workers may do as parts of their ordinary avocation or business in life . "
"Thus, in order to draw the circle of industry, to use the expression of my learned brother Iyer, we do not find even Page 19 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined the term workman illuminating. The definition only enables us to see that certain classes of persons employed in the service of the State are excluded from the purview of industrial dispute which the Act seeks to provide for in the interests of industrial peace and harmony between the employers and employees so that the welfare of the nation is secured. The result is that we have then to turn to the preamble to find the object of the Act itself, to the legislative history of the Act, and to the socio-economic ethos and aspirations and needs of the times in which the Act was passed."
After quoting the definition of industry, the learned Chief Justice proceeded to say in paragraph 158 of the judgment:
"It seems to me that the definition was not meant to provide more than a guide. It raises doubts as to what could be meant by the calling of employers even if business, trade, undertaking or manufacture could be found capable of being more clearly delineated. It is clear that there is no mention here of any profit motive. Obviously, the work manufacture of employers could not be interpreted literally. It merely means a process of manufacture in which the employers may be engaged. It is, however, evident that the term employer necessarily postulates employees without whom there can be no employers ......
"In paragraph 165 of the judgment, the learned Chief Justice added: G "I have contended myself with a very brief and hurried outline of my line of thinking partly because I am in agreement with the conclusions of my learned brother Krishna Iyer and I also endorse his reasoning almost wholly, but even more because the opinion I have dictated 632 just now must be given today if I have to deliver it at all. From tomorrow I cease to have any authority as a Judge to deliver it. Therefore, I have really no time to discuss the large number of cases cited before us, including those what are known as sovereign functions." Chandrachud, Page 20 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined J., as he then was, on behalf of himself Jaswant Singh and Tulzapurkar, JJ. added a note by saying:
"We are in respectful agreement with the view expressed by Krishna Iyer, J. that the appeal should be dismissed. We will give our reasons later indicating the area of concurrence and divergence, (underlining is ours) if any, on the various points in controversy on which our learned Brother has dwelt." On 7th of April, the reasonings were delivered by Chief Justice Chandrachud for himself as by then Jaswant Singh, J. delivered a separate set of reasonings for himself and Tulzapurkar, J. The learned Chief Justice (because by then he had assumed that office) referred to several authorities and tests and in paragraph 181 of the judgment stated:
"........ These refinements are, with respect, are not warranted by the words of the definition, apart from the consideration that in practice they make the application of the definition to concrete cases dependent upon a factual assessment so highly subjective as to lead to confusion and uncertainty in the understanding of the true legal position. Granting that the language of the definition is so wide that some limitation ought to be read into it, one must step at a point beyond which the definition will skid into a domain too rarefied to be realistic. Whether the cooperation between the employer and the employee is the proximate cause of the ultimate product and bears direct nexus with it is a test which is almost impossible of application with any degree of assurance or certitude. It will be as much true to say that the solicitor's assistant, managing clerk, librarian and the typist do not directly contribute to the intellectual end product which is a creation of his personal professional skill as that, without their active assistance and cooperation it will be impossible for him to function effectively. The unhappy state of affairs in which the law is marooned will 633 continue to baffle the skilled professional and his A Page 21 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined employees alike as also the Judge who has to perform the unenviable task of sitting in judgment over the directness of the cooperation between the employer and the employee, until such time as the legislature decides to manifest its intention by the use of clear and indubious language. Besides the fact that this Court has so held in National Union of Commercial Employees v. M.R. Meher, lndustrial Tribunal, Bombay, [1962] Supp. 3 SCR 157 the legislature will find a plausible case for exempting the learned and liberal professions of lawyers, solicitors, doctors, engineers, chartered accountants and the like from the operation of industrial laws. But until that happens, I consider that in the present state of the law it is difficult by judicial interpretation to create exemptions in favour of any particular class." The remaining two learned Judges added their separate opinion and in the concluding part stated:
"In view of the difficulty experienced by all of us in defining the true denotation of the term industry and divergence of opinion in regard thereto-as has been the case with this Bench also- we think, it is high time that the Legislature steps in with a comprehensive bill to clear up the fog and remove the doubts and set at rest once for all the controversy which crops up from time to time in relation to the meaning of the aforesaid term rendering it necessary for larger Benches of this Court to be constituted which are driven to the necessity of evolving a working formula to cover particular cases." The ultimate position available from the seven Judge Bench decision, therefore, is that while three learned Judges delivered their view through Krishna Iyer.J.Beg CJ spoke somewhat differently, yet agreed with the conclusion reached by Krishna Iyer J. Chandrachud, CJ. also agreed with the majority while the remaining two learned Judges looked for legislative clarification to meet the situation."
7.1. The Court while concluding that the Irrigation Department was an industry held that the said legal Page 22 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined position has been in earlier decisions also. On examining the dominant nature test, it held that the main function when scrutinized clearly, the same came within the ambit of industry.
8. This had been thereafter referred to by the Full Bench in the case of Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State of Gujarat, reported in 2004 (2) GLH 302. The question whether the department of the government is an industry was the question before this Court, which had held that the inquiry into the nature of work undertaken by the department in a particular venture, the type of agency through which the work is done, the duties of the employee and matters connected therewith would all be the question of facts. The question whether the department of government is an 'Industry' within the ambit of Section 2(j) of the Act, according to the Full Bench is a mixed question of law and facts, which cannot be allowed to be raised first time before the Court. The Court after due consideration of the question whether the Forest Department and Irrigation Department are industry as defined under the Act or not, is required to be examined on the basis of nature of work done by such department and on satisfying the test propounded by the Supreme Court in Bangalore Water Supply case, the department can be brought under the definition of industry and the Government Resolution dated 17.10.1988 is applicable to daily wagers and various departments working for maintenance and repairs for construction and the activity of irrigation and canal works is an 'Industry' withing the meaning of Section 2(j) of the ID Act.
9. It is given to understand to this Court that a circular had also been issued by the State particularly mentioning therein that issue whether the departments are industry or not under Section 2(j) of the ID Act is not to be raised before the Court, however, this is disputed by the learned Page 23 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined AGP. Be that as it may, the decisions of the Courts are extensively clear, unambiguous and bringing to the State.
10. This Court in Special Civil Application No. 12521 of 2018 and allied matters, considering the challenge to the awards passed by the Labour Court made by the State under Article 226 of the Constitution of India, while dealing with the case of Bhadar Canal Project and after examining various authorities, did not interfere with the order. This has a reference of a decision namely R.M.Yellatti vs. Assistant Executive Engineer, reported in 2006 SCC (L&S) 1.
11. Thus, on the first issue, it is quite clear from the decision of the Apex Court in the case of Des Raj (supra) that the Irrigation Department of the government after dominant nature test has been held to be an industry. This has been also reiterated in the decision of the Full Bench in the case of Gujarat Forest Producers (supra). There does not appear to be any change in the definition of industry under Section 2(j) of the ID Act. Categorically laid down in both the decisions, once again, the Court noticed that as late as in the year 2018-19 such plea has been raised by the Irrigation Department, this approach needs to be very sternly and categorically disapproved. The attention is to be drawn of the department that once a particular aspect has been decided by the Full Bench of this Court and also by the Apex Court, the very ground cannot be raised reiteratively to waste the valuable time of the Court. In future, if this will be raised as one of the grounds, it will be viewed seriously as it may also lead to impose a heavy cost. The State is a litigant and can raise all available legal contentions, however, it is precluded to continue any litigation which is either vexatious or when the very issue is finally determined by the highest Court and there is no subsequent change in the law.
12. This brings this Court to the Second issue of the Page 24 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined respondent not having proved the completion of 240 days in a particular year. According to the petitioner, this ought to have been regarded by the Labour Court at the time of deciding the reference. This Court notices that the respondent has stepped into the witness box. He had shown his inability to produce appointment letter, Identification Card and Pay Slip. He also was unable to produce any other vindicating document in support of the statement of claim. According to him, he has never been issued any of these documents. Also admitting in the cross examination that none of these documents had been given, and therefore, it was not feasible for the respondent to prove 240 days of employment, as requirement. The Court therefore held that this onus would shift to the present petitioner which was opponent before the Labour Court.
13. In some of the references, by way of documentary evidence, muster roll has been produced but, it was not a continuous muster roll, the truncated version of the same was shown to the Court. This being a vital document, the Court was quite dissatisfied and unhappy as to why such vital documents were not produced, despite a specific direction. It is well laid down law on such aspect in the case of R.M.Yellatti (supra) against the employer for non-production of muster roll and other vital documentary evidence and without any discharge of burden of proof an attempt is made by the workman and he has not been able to produce the documentary evidence, even after issuance of the notice and calling upon the employer.
14. The Devision Bench of this Court in the case of Zonal Manager, State Bank of India vs. Modi Rajeshkumar Shantilal, reported in 2018 (3) GLR 2326, was required to consider satisfaction of the continuation of service with 240 days and the Court held thus:-
"6. Having considered the submissions of the Page 25 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined learned advocates for the respective parties, the following issues arise for our consideration:
(A) Whether the learned Single Judge was right in his perception in relying on the certificate Exh. 25 and holding that the respondent workman has satisfied requirement of Section 25B(1) and therefore has completed continuous service preceding the date of retrenchment, and therefore there was non-
compliance under Section 25-F of the Act.
(B) Whether the Industrial Tribunal and in turn the learned Single Judge while confirming the award was right in drawing an adverse inference against the appellant-employer for the purposes of holding that the respondent had completed 240 days, as the employer had failed to produce vouchers as ordered below Exh.16. For our benefit, we reproduce hereunder Sections 25B and 25F of the Industrial Disputes Act, 1947:
"Sec.25-B. Definition of continuous service.- For the purposes of this Chapter -
i. a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
ii. Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made, has Page 26 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined actually worked under the employer for not less than-
i. one hundred and ninety days in the case of a workman employed below ground in a mine; and ii.two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-(i) ninety-five days, in the case of workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. Explanation :- For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which- (i) he has been laid-of under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the previous years; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.Section 25C xxx xxx xxx Section 25D xxx xxx xxx Section 25E xxx xxx xxx Section 25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment Page 27 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice,
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette.] "
7. While deciding the issue (A), what needs to be considered is that the respondent workman had specifically made out a case in the Statement of Claim that he had worked from 03.01.1989 to 31.12.1995. For the period from 01.04.1994 to 31.12.1995, he had clearly stated that he had worked for more than 240 days. In addition thereto it was his specific case that he was in continuous service for over a year of service and therefore there was no reason for applying the deeming fiction of 240 days of working days in a period of less than a year.
7.1 Section 25-F of the Industrial Disputes Act,1947 requires the employer to follow the procedure thereunder when a workman is employed in an industry and who has been in continuous service for not less than one year.
"Continuous service" is defined under Section 25-B of the Act. Section 25- B(1) suggests that the workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness, authorized leave etc. Section 25-B(2) suggests that, when he is not in continuous Page 28 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could not have considered the Certificate showing the number of working days as 319, as "that period was not a period preceding 12 months prior to retrenchment". In our opinion, this submission of Shri Desai, is without merit.Continuous service as defined under Section 25-B suggests the entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If for a certain period the employer is in no position to provide work, cessation of such work without the fault of the employee would not be an interruption in service and the employee would be deemed to be in service for such period. It was the case of the respondent workman here, by a positive assertion in the Statement of Claim that not only did he work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995, but that from April 1992 to June 1993 he was in service except for the cessation without his fault, and therefore the case squarely fell within the domain of Section 25- B(1) of the Act. The employer having failed to discharge its burden by producing vouchers though so ordered under Exh.18, cannot now be heard to say that the fiction of the employee having worked for a period of 240 days as envisaged under Section 25-B(2) of the Act would apply. Having failed to do so, interruptions need to be ignored and the respondent workman, as observed by the learned Single Judge needs to be treated to be in continuous service without interruption as defined under Section 25-B(1) of the Act. It is relevant to note one important aspect that Section 25B(1) had been discussed by Apex Court in case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh reported in 2005 (8) SCC page 750. Relevant para 8 of this Page 29 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined decision is quoted as under
"S8. To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less than one year. Sec. 25B of the Act defines continuous service for the purpose of Chapter V- A .SLay -of and Retrenchment. The purport of this section is that if a workman has put in uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lockout or cessation of work, that is not due to any fault on the part of the workman, shall be said to be continuous service for that period. Thus the workman shall be said to be in continuous service for one year i.e. 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25-B. However, the workman must have been in service during the period i.e. not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned not only on the days he has actually worked but also on the days on which he has not worked. The import of subsection (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. Subsection (2) of the Section 25B introduced the fiction to the effect that even if the workman is not in continuous service within the meaning of clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of Page 30 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined Sub-section (2). By the legal fiction of sub- section (2)
(a)(i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the section postulate that if the workman has put in at least 240 days with his employer, immediately, prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F."
7.2 What is meant by continuous service for the purpose of Chapter VA has been defined under Section 25B.The requisites for treating a person to be in continuous service for the requisite period,in case of Section 25F is that either he should be in uninterrupted service including service which may be interrupted on account of sickness or authorized leave etc which is not due to fault of workman or cessation of work for no fault of the workman. If a workman completes continuous service of employment of more than one year as is so established in the present case, on the failure of the employer to discharge the burden adverse inference needs to be drawn. These facts must be reflected clearly in reference to the date of retrenchment with any block of twelve months with reference to continuous service. In the present case the respondent workman has established continuous service on the test of 25(B) and therefore the deeming fiction of completion of 240 days would not set of the fact of the workman being in continuous service for one year including interruptions beyond his control.
7.3 As far as issue (B) is concerned, Shri Desai's contention by relying on decision in the case of Surendranagar (supra) would be of no avail. An application Exh.11 was moved by the respondent Page 31 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined workman for production of vouchers from the employer. An order at Exh. 16 was passed. The employer failed to produce such vouchers and therefore did not discharge the burden of proving otherwise. The learned Single Judge as well as the Industrial Tribunal, in our opinion therefore, even on the second ground were right in holding that once the employer had failed to negate the assertion of the employee, by failing to discharge the burden, recourse to the deeming fiction of completion of 240 days would not arise. Adverse inference was rightly drawn by the Industrial Tribunal, on the employer's failure to produce relevant record though directed to do so."
15. In the instant case also, as can be noticed from the decision of the Court, it is not only the issue of completion of 240 days as required under Section 25(E) of the Act, the Court has specifically specified breach of Section 25(G) and (H) of the ID Act. It is trite law that once there is a breach of Section 25(G) and (H), non- completion of 240 days will pale into insignificance.
16. It is also to be noted that this Court does not sit in appeal over the decision of the Labour Court, with no illegality having been found and no reason for interference, the scope under Article 226 of the Constitution will be limited, as held in the decision of Apex Court rendered in the case of Surya Devi Rai vs. Ram Chander Rai and Others in SLP (c) No. 12492 of 2002. Apt would be to reproduce the relevant paragraph hereinafter:-
"Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the Page 32 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted
(i) without jurisdiction - by assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or
iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
Page 33 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied :
(i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/ or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and Page 34 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not Page 35 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-
restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience andpractical wisdom of the Judge."
17. Hence, all Special Civil Applications are dismissed.
18. It is to be noted that Special Civil Application No.18765 of 2019 also is part of the very group, which is at the stage of admission, also stands dismissed in limine.
10. S o far as the petitions preferred by the employees areconcerned, admittedly, during the pendency of the reference, the petitioners have attained the age of superannuation and therefore, the Court, instead of granting reinstatement with continuity and backwages, has given lump-sum compensation. Since, it works out to be against the interest of the petitioner, when compared with the relief granted in case of the other employees, who were already in service, the Court accedes to the request of quashing and setting aside the order of lump-sum compensation and instead grant the reinstatement till the date of superannuation with continuity of service.
11. 10% backwages has been forgone by the employees Page 36 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined with the grant of continuity to those employees who have attained the age of superannuation, they shall be paid consequentially the retirement benefits on the strength of the modified award in not later than twelve weeks' time from the date of receipt of copy of this order. Consequently, the Special Civil Application No. 14528 of 2018 stands dismissed and disposed of."
7. The said petition came to be allowed with the direction to the respondent to consider the case of all the concerned workmen for retirement benefits, who have attained the age of superannuation instead of granting reinstatement, till the date of superannuation with continuity of service. It is not in dispute that in case of Jawanbhai Malabhai Pagi, Special civil Application No.2205 of 2023 which is of bhadar canal sub division, lunawada i.e Very respondent, in case of similarly situated employee, this court has modified award of compensation by allowing the petition of an employee and directed to treat his service as continuous till date of retirement and to pay all retirement benefits which is confirmed in LPA No. 855 of 2025 .
8. Similarly situated workman has filed present petition and therefore, similar order is required to be passed in the facts of the present petition also.
9. At this stage, it appropriate to take into account thesimilar observation made by the co-ordinate bench of this Court in Special Civil Application No. 4168 of 2022 and Special Civil Page 37 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined Application No. 4189 of 2022 vide judgment dated 24.6.2022 which reads as under:-
"10. Accordingly, as held by this Court in the judgement of Chhatrasing Marutising Bariya vs. Dy. Executive Engineer & Ors., the petitions are allowed. Under the circumstances, the impugned award passed by the Labour Court is erroneous to the extent of granting compensation. The respondents are directed to reinstate the workmen in service with continuity of service. However, it is clarified that they will not be entitled to any backwages as they have given up their claims. After their reinstatement, it will be open for the petitioners - workmen to file a representation claiming the benefits of Government Resolution dated 17.10.1988.The order reinstating the petitioner workmen shall be passed within a period of three months from the date of receipt of this order.The amount of compensation, if already paid to the workmen, the same shall be adjusted while fixing their pay.
11. As far as petitioner of Special Civil Application No. 4189 of 2022 is concerned, he has attained the age of superannuation. The Court accedes to the request of quashing and setting aside the order of lump-sum compensation and instead grant the reinstatement till the date of superannuation with continuity of service. The back wages has been forgone by the employee with the grant of continuity to him who has attained the age of superannuation. He shall be paid consequentially the retirement benefits on the strength of modified award in not Page 38 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined later than twelve weeks' time from the date of receipt of copy of this order."
10. It is also required to be noted herein that the Hon'ble Division Bench in Letters Patent Appeal No. 389 of 2024 has confirmed the order passed by the learned Single Judge and observed that:-
"10. On a perusal of the award passed by the Labour Court, we find that the Labour Court had directed the employer to produce muster-roll to satisfy as to whether from which year, the workman has completed 240 days. Despite the aforesaid direction, the employer of the respondent-workman did not produce the same. It is asserted by the workman that he was engaged from 1994 to 1997 however, his service was terminated from 03.10.1997. The learned Single Judge after placing reliance on the judgment of the Supreme Court in the case of R.M. Yellatti (supra), has held that the termination was not in violation of provisions of Section 25F of the Act, no muster roll was produced by the employer, though directed by the Labour Court.
11. The learned Single Judge in the impugned judgment and order, more particularly in paragraph No.6 has held thus : -
"6. Apart from setting out the number of days that the respondent had worked in the years 1994 to 1997 as referred to herein above, perusal of the award of the Labour Court would indicate that in one of the references which was heard together with the present Page 39 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined reference, at mark 20/1, the employer was called upon to produce the muster roll to satisfy the Labour Court as to whether in each year of service, the workman had completed 240 days. At mark 17/1, the deposition of the employer's witness Ravindran Karunakaran Nair was also considered. The Labour Court considering the decision of the Supreme Court in case of R.M.Yellatti v. Assi. Executive Engineer reported in 2006 SSC (L&S) 1 held that adverse inference has to be drawn in the event of employer having failed to produce oral as well as documentary evidence on record. Even otherwise, this Court had an occasion to deal with the awards of a similar nature where the Labour Court fell short of awarding reinstatement and awarded compensation. The petitions were filed by the State challenging the award of reinstatement with 10% back-wages and those of some workmen who are already awarded compensation. In the oral order dated 20.01.2020, the Court confirmed the orders of reinstatement, however, set aside the order of granting 10% back-wages. In other words, the award of reinstatement without back- wages was the award of the Labour Court which was in terms modified."
12. We are in complete agreement with the findings recorded by the learned Single Judge. We have also noticed that the Department, in which the respondent-workman was working was never closed down and there were other employees, who were working along with the present workman. It is also not Page 40 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined in dispute that no seniority list has been produced by the appellant before the Labour Court, and hence, the Labour Court is justified in holding the termination in violation of Section 25G and H of the I.D. Act."
11. Hon'ble Division Bench of this Court has rejected the Letters Patent Appeal filed by the State and confirmedthe order passed by the learned Single Judge and observed paragraph No. 13 as under:-
"13. Thus we do not find any reason for interfering the judgment and order passed by the learned Single Judge. Hence, the present appeal fails. The same is hereby rejected accordingly."
12. Therefore, the orders passed by the two different coordinate benches of this Court are now confirmed by the Hon'ble Division Bench and therefore, this Court has no any other alternate but to pass the similar order in view of the order passed by the two different coordinate bench of this Court and confirmed by Division Bench of this Court.
13. It is required to be noted herein that once the coordinate bench of this Court has considered the submissions and passed the order which is upheld by the Hon'ble Division Bench, for considering the judicial discipline and propriety, this Court has no any alternate but to pass the similar order as observed by the Ho'ble Apex Page 41 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined Court, time and again that in similar identical facts, if one coordinate bench has taken the view then the another coordinate bench has to follow the same.
14. It is also appropriate to take into account that in the another group of Letters Patent Appeal being Letters Patent Appeal No. 622 of 2024 the court has confirmed the order of learned Single Judge in the similarly situated workman on the same line, where the Labour Court has awarded lumpsum compensation in lieu of reinstatement and that was interfered by coordinate bench of this Court,which is upheld by the Hon'ble Division Bench of this Court in Letters Patent Appeal No. 622 of 2024. Relevant paragraph No. 3 read as under:-
"3. The Division Bench vide order dated 19.03.2024 passed in Letters Patent Appeal No.190 of 2024, has held in paragraphs, 4, 5, 6, 7, 8, 9 and 10 as under:
" 4. It is further noted by the learned Single Judge that the only documents, that were produced by the employer, were for the period from January 2007 to December 2009. The contention on behalf of the State was that on account of delay of 2 years in raising the dispute,when the work at the Canal had been outsourced, reinstatement was not possible, that too after a lapse of 20 years from the date of termination of the services of the petitioner, as admitted to the petitioner.Page 42 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025
NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined
5. These findings returned by the learned Single Judge are sought to be assailed by Ms. Hetal Patel, learned Assistant Government Pleader, appearing for the State-appellant, with the assertions in the written statement placed before us. It is sought to be submitted that the petitioner was engaged in a project which has come to an end and he was never engaged by the Bhadar Canal Sub-Division.
6. This statement made in the written statement is found to be wrong for the simple reason that on the asking of the Labour Court, the employer had produced the attendance records of only last three years, i.e. for the period from January 2007 to December 2009. It was not the case of the appellant- employer that the petitioner was never engaged in the department. The complete record establishing the period of working of the petitioner even in the Project, wherein he was allegedly engaged by the respondent as per the contentions in the written statement, had not been produced by the employer.
7. The best evidence was in the custody of the appellant employer and for not producing the entire record including the attendance-sheet to establish the actual period of working of the petitioner, adverse inference was required to be drawn by the Labour Court.
8. It is an admitted fact of the matter that apart from Page 43 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined the attendance-sheet of three years, no oral or documentary evidence was placed by the appellant department before the Labour Court and the best evidence was withheld in spite of the specific directions issued by the Labour Court.
9. We are, therefore, of the view that the findings returned by the learned Single Judge that the compensation in lieu of reinstatement will be detrimental to the petitioner, who has worked over a period of 20 years and who has been illegally restrained from working at the instance of the employer. As the respondent department/ appellant herein has failed to establish the period of working of the petitioner, who has admittedly been engaged in the department since 1983 till July 2011, as categorically stated by the workman, we are of the considered view that for violation of the Section 25-F, G and H of the Industrial Disputes Act, the reinstatement ought to have been followed, as directed by the learned Single Judge. 10. For the aforesaid, no case is made out for interference. The appeal is, therefore, DISMISSED, affirming the order passed by the learned Single Judge. Pending Civil Application also stands DISPOSED OF."
15. In the present case Labour Court has rightly considered evidence on record and relying upon judgment of Hon'ble Supreme Court in case of R.M.yellati 2006 scc(L & s) p.1, held Page 44 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined that the employee has rendered continuous service as per section 25B of ID Act. The Labour court, Godhra in reference (T) No.148 of 2013 has passed identically worded award and as only compensation was granted, the same was modified in Special civil Application No.2205 of 2023 and confirmed in Letters Patent Appeal No. 855 of 2025. In the present case thus looking to 18 years of service from 1979 to 1997, the Labour Court erred in granting compensation.
16. In view of the above observations and keeping in mind the observations made by the two different Coordinate Benches of this Court in Special Civil Application Nos. 22362 of 2019 and 4168 of 2022 with 4189 of 2022 and confirmed by the Hon'ble Division Bench of this Court in Letters Patent Appeal No. 389 of 2024, present petition is hereby allowed. The impugned award dated 18.05.2018 passed by the Labour Court, Godhra in Reference (T) No. 338 of 1999 is hereby modified and the respondent is hereby directed to consider the service of the petitioner, as continuous on the same line and treat the petitioner as workman in service till he reached the age of superannuation and pay all the retiral consequential benefits, as directed by two co-ordinate bench of this Court and upheld by the Hon'ble Division Bench.
17. All the consequential reliefs and retiral benefits, as granted by the two different Coordinate Benches of this Court Page 45 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025 NEUTRAL CITATION C/SCA/15130/2020 JUDGMENT DATED: 04/12/2025 undefined in Special Civil Application Nos. 22362 of 2019 and 4168 of 2022 with 4189 of 2022 and confirmed by the Hon'ble Division Bench of this Court in Letters Patent Appeal No. 389 of 2024, shall be paid to the present petitioner workman within period of three months from the date of receipt of copy of writ of this order.
18. Accordingly present petition stands disposed of. Rule made absolute to the above extent. Direct service is permitted.
(HEMANT M. PRACHCHHAK,J) ANUSRI Page 46 of 46 Uploaded by ANUSRI VASU(HC02352) on Fri Dec 12 2025 Downloaded on : Fri Dec 12 23:22:19 IST 2025