Gujarat High Court
Nileshbhai Babubhai Lakkad vs Deputy Executive Engineer on 26 July, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya, Nirzar S. Desai
C/LPA/628/2021 JUDGMENT DATED: 26/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 628 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 95 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
NILESHBHAI BABUBHAI LAKKAD
Versus
DEPUTY EXECUTIVE ENGINEER & 1 other(s)
==========================================================
Appearance:
MR SAMIR B GOHIL(5718) for the Appellant(s) No. 1
MR VISHRUT JANI for RC JANI AND ASSOCIATE(6436) for the
Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 26/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the judgment and order dated 7.3.2018 passed by Page 1 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 learned Single Judge (Coram: Mr. K.M. Thaker, J.) in Special Civil Application no.95 of 2015, the appellant-original respondent no.1 has preferred this intra-Court appeal under Clause 15 of the Letters Patent.
2. Following facts emerge from the record of the appeal:-
The appellant came to be appointed as daily wager on the post of Valve Operator-cum- Pumping Reporter by the respondents and his services came to be retrenched. The appellant herein preferred a Reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act" for the sake of brevity), which came to be registered as Reference LCJ no.125 of 2006 before the Labour Court, Junagadh. It was the case of the appellant before the Labour Court that the appellant came to be appointed as daily wager on 15.05.2002 on daily wages of Rs.94.50 at Ozat-2 Dam, more particularly, at Village Badalpur as Valve Operator-cum-Pumping Reporter. It was the case of the appellant that his services were terminated by the respondents without following provisions of Section 25F of the Act and though he had completed 240 days in service, his services are required to be regularized as prayed for Page 2 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 in the Reference. Oral as well as documentary evidence came to be adduced by both the parties to the Reference. The Labour Court, by judgment and award dated 23.09.2014, partly allowed the Reference and directed the respondents to reinstate the appellant at his original post with continuity of service, but without backwages and also imposed cost of Rs.1,000/-. The Labour Court, by the impugned judgment and award, came to the conclusion that there is no breach of Section 25F of the Act. However, the Labour Court came to the conclusion that there is breach of Sections 25G and 25H of the Act and allowed the Reference, as aforesaid. Being aggrieved by the said judgment and order, the respondents herein preferred a Writ Petition being Special Civil Application no.95 of 2015 under Articles 226 and 227 of the Constitution of India on various grounds.
3. Various contentions were raised before the learned Single Judge and the learned Single Judge, having examined the evidence on record, came to the conclusion that there is no breach of Sections 25G and 25H and allowed the petition. Being aggrieved by the same, the present intra-Court appeal is filed by the workman.
Page 3 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021C/LPA/628/2021 JUDGMENT DATED: 26/07/2021
4. Heard Mr. Samir B. Gohil, learned advocate for the appellant and Mr. Vishrut Jani, learned advocate for the respondents on advance copy.
5. Mr. Samir B. Gohil, learned advocate for the appellant has taken this Court through the factual matrix arising out of this appeal as well as relied upon the judgment and award passed by the Labour Court and contended as under:-
5.1 That, the learned Single Judge has failed to appreciate the fact that the work is still going on and juniors to the appellant are being continued.
5.2 It was next contended by Mr. Gohil, learned advocate for the appellant that the respondents had not maintained the seniority list and therefore, there is clear breach of Sections 25G and 25H of the Act.
5.3 It was further contended that the respondents have not followed the principle of last come first go and therefore, the findings arrived at by the learned Single Judge are erroneous and de hors the evidence on record.
5.4 It was also contended that the learned Single Judge has wrongly relied upon the judgment of Page 4 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 the Hon'ble Apex Court in the case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, reported in 2006 (2) GLR 1014.
On the aforesaid grounds, it was contended by Mr. Gohil, learned advocate for the appellant that the appeal requires consideration and the judgment and award of the Labour Court deserves to be restored.
6. Per contra, Mr. Jani, learned advocate for the respondents has supported the impugned judgment and order. Mr. Jani submitted that the learned Single Judge has rightly appreciated the evidence on record and all the contentions raised by the appellant before this Court are not even remotely proved by the appellant. Mr. Jani therefore submitted that the appeal, being merit-less, deserves to be dismissed.
7. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.
8. Considering the findings arrived at by the Labour Court as well as the learned Single Judge, even the Labour Court has not accepted the allegations made by the appellant that Page 5 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 there is breach of Section 25F of the Act and hence, the question of there being any breach of Section 25F of the Act does not arise in this appeal at all. It may be noted that the appellant has also not raised the said issue in the present appeal. The learned Single Judge, after appreciating the evidence on record and even considering the admission of the appellant, has come to the conclusion that the appellant was engaged frequently, but intermittently for casual work on daily-wage basis. It is also a matter of fact that the appellant has not been able to bring on record or give any name of any person who was engaged by the respondents after he came to be relieved from the work. It is also a matter of fact that before the Labour Court, the appellant has not been able to assert that any junior to the appellant has been continued in service. Having appreciated such piece of evidence, the learned Single Judge has come to the conclusion that there is no breach of Section 25G of the Act. On further appreciating the evidence of both the sides, the learned Single Judge has come to the conclusion that there is no breach of Section 25H of the Act. After having appreciated such piece of evidence, the learned Single Judge has succinctly discussed the aspect of breach of Sections 25G and 25H of the Act as under:-
Page 6 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 "8. Now, so far as allegation about breach of Section 25-G and Section 25-
H are concerned, learned Labour Court has held that employer committed breach of said provision.
8.1 In this context, it is relevant to note that from the award it comes out that the claimant failed to give any specific details which would be necessary to establish that persons junior to him were continued in service by the Board at the time when his service came to be discontinued on 11.10.2006.
8.2 The claimant did not and could not mention name of any person who according to his allegation was junior to him, but was continued in service after 11.10.2006, i.e. the date on which his service came to be discontinued. Differently put, the claimant failed to prove that the Board did not follow principle of Last-Come-First-Go".
8.3 On this count, it is pertinent to note that the learned Labour Court has recorded, in the award, evidence by both sides and on the basis of the evidence, learned Labour Court has derived gist of the evidence, which gives out that from the admission of the claimant and from evidence by the Board, it was established that the claimant was engaged frequently, but it was also proved fact that the claimant was engaged intermittently for casual work on daily wage basis. The learned Labour Court has also taken note of the admission by the claimant wherein he accepted the fact Page 7 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 that he was not able to give name of any person who was engaged by the Board after he came to be relieved from the work which he was performing.
8.4 From the discussion of the evidence by the claimant,it also comes out that the claimant failed to even claim that any junior person was continued in service. The claimant also failed to mention names of any person who was junior to him but was continued in service. In absence of such evidence, there was no base or justification for the learned Labour Court to hold that the Board committed breach of Section 25-G i.e. breach of principle of seniority. Under the circumstances, said finding of fact cannot be sustained.
9. So far as allegation about breach of Section 25-H is concerned, it is relevant to note that the claimant himself in his deposition, admitted the fact that there are about 200 sites were the Board undertakes different activities. He also admitted that he is not able to give name of any person who came to be engaged by the Board for the same work after and in same capacity (as that of the petitioner) and in same department and at same site where he (petitioner) worked and he was relieved.
9.1 Despite the fact that there was no evidence on record to establish that the Board had engaged any other person after reliving the claimant to perform same work which the claimant performed and/or whether the Board had engaged any person for same work at the same site where the claimant was engaged Page 8 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 after he was relieved, and in absence of relevant evidence, the learned Labour Court assumed and without any material held that the Board committed breach of Section 25-H. 9.2 Unless and until, it is established that the work which the claimant performed continued after he was relieved and that any other person was engaged by the Board to perform the same work at same site/department without first giving opportunity to the claimant to re-engage him, any conclusion about breach of Section 25- H cannot be recorded and cannot be justified. For the said purpose, specific evidence to above mentioned effect must be available on record.
10. In this context, a profitable reference can be had to the observation by Hon'ble Apex Court in case of Surendranagar District Panchayat v. Dahyabhai Amarsinh (supra) wherein Hon'ble Apex Court observed, inter alia, that:-
"7. On the basis of the rival contention, it is necessary for us to consider the scope and ambit of the relevant provisions, namely Section 2 (oo), Section 25B and Section 25F of the Industrial Disputes Act. The appropriate provisions are reproduced below:
Section 2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-
a) voluntary retirement of the workman; or
b) retirement of the workman on reaching the age of superannuation if the contract Page 9 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 of employment between the employer and the workman concerned contains a stipulation in that behalf; or bb) termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
c) termination of the service of a workman on the ground of continued ill-health;
Section 25B: Definition of Continuous Service :- For the purposes of this Chapter-
(1) 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 as 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;
(2) 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 calendar months preceding the date with reference to which calculation is to be made, has 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 calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer not less than-
(i) ninety five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty five days, in Page 10 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 any other case. Explanation- For the purposes 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-off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this 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 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 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. As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act). Under the definition termination of the Page 11 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of non-renewal of the contract of employment; or
iv) termination of the service on the ground of continued ill-health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act. The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely:-
i) One month's clear notice in writing indicating the reasons for retrenchment or that the workman has been paid wages for the period of notice in lieu of such notice;
ii) payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of Page 12 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 continuous service or any part thereof, in excess of six months;
iii) a notice to the appropriate Government in the prescribed manner.
8. To attract the provisions of Section 25F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an 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 lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a 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 25B. However, the workmen 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 on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B 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 sub-section (2). By the Page 13 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 legal fiction of subsection 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.
9. For the purposes of calculation of number of days worked by the employee, by fiction his days of absence from work have been included if the workman has been laid off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act 1946 (20 of 1946), or under the Industrial Disputes Act 1947, or in any other law applicable to the industrial establishment; (ii) has been on leave with full wages, earned in the previous year; (iii) has been absent due to temporary disablement caused by accident arising out of and in the course of employment; and (iv) has been on maternity leave, in case the employee is a female, however, that the total number of such maternity leave does not exceed 12 weeks.
10. In S.K. Verma v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi, AIR 1981 SC 422, speaking for three Judges Bench, O. Chinnappa Reddy, J. while considering the original provisions of Section 25B and the amendment brought about by Act 36 of 1964 of Section 25B of the Act, has said that Section 25F requires that a workman should be in a continuous service for not less than one year under an employer before that provision applies. While so, present, S.25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months.
Page 14 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021C/LPA/628/2021 JUDGMENT DATED: 26/07/2021
11. In the matter of Mohan Lal v.
Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225, this Court has said that sub-section (2) of Section 25B comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of 12 months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. It is not necessary for the purpose of sub- section (2) (a) that the workman should be in service for a period of one year and that his service is continuous service within meaning of sub-section (1). If his case is governed by subsection (1) then it need not be covered by sub-section (2). Sub-section (2) envisages a situation not governed by subsection (1) and sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for one year but has rendered service for a period of 240 days during the period of 12 Calendar months counting backwards and just preceding the relevant date, being the date of retrenchment.
12. In the matter of Workman of American Express International Banking Corporation v. Management of American Express International Banking Corporation reported in 1985 (4) SCC 71, the Court has said that the explanation of Section 25B is not exhaustive. It does not purport that only those days which are mentioned in the Explanation to Section 25B(2) of the Act should be taken into account for the purpose of calculating the number of days on which the workman had actually worked though he had not worked on those days. The Court said that the expression "actually worked under the employer" is only clarificatory and cannot be used to limit the expanse of the main provision. The Page 15 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 expression "actually worked under the employer" is capable of comprehending the days during which the workman was in employment and was paid wages by the employer and there is no reason why the expression should be limited by the explanation.
13. In the matter of Standard Motor Products of India Ltd. v. Parthasarthy, (1985) 4 SCC 78, this Court has said that the actual working for less than 240 days would include Sundays and other paid holidays if the workman is in employment of the employer although for less than a period of 12 months.
14. These decisions in unambiguous words laid down that subsection (1) and (2) of Section 25B comprehends different situations for the calculation of continuous service for not less than one year and continuous service which is less than one year but for 240 days in 12 months preceding the date of termination under an employer.
15.In Mohan Lal v. Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225, it is said by this Court that before a workman can claim retrenchment not being in consonance of section 25F of the Industrial Disputes Act, he has to show that he has been in continuous service of not less than one year with the employer who had retrenched him from service.
16. In Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 - (At Page 26, Para 3), this Court held that "In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 Page 16 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan and another, (2004) 8 SCC 161, Municipal Corporation, Faridabad v. Siri Niwas, (2004) 8 SCC 195 and M.P. Electricity Board v. Hariram, (2004) 8 SCC 246, this Court has reiterated the principle that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer.
18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the Page 17 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workman- respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non-compliance of Sections 25G and 25H suffice is to say that witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non- compliance of provisions of the Act. The Courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the Court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved."
9. In view of the aforesaid findings which, in opinion of this Court, are correct appreciation of the evidence on record. It Page 18 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021 C/LPA/628/2021 JUDGMENT DATED: 26/07/2021 clearly appears that the appellant has failed to prove that any junior is being continued. The appellant has not been able to give any name of any such person who has continued and is employed for similar work junior to the appellant. Even before this Court, except vague allegations which are pressed into service by the learned advocate for the appellant, nothing is brought on record. The learned Single Judge has rightly appreciated the evidence on record and following the binding decision of the Hon'ble Apex Court in the case of Surendranagar District Panchayat (supra), has correctly come to the conclusion that the appellant has not been able to prove that there is breach of Sections 25G and 25H of the Act. Only because the scheme is continued, it cannot be presumed that any junior is considered without there being any evidence on record and the learned Single Judge has therefore rightly come to the conclusion that the Labour Court has committed an error in coming to the conclusion that there is breach of Sections 25G and 25H of the Act. As held by the Hon'ble Apex Court in the case of Surendranagar District Panchayat (supra), adverse inference against the employer could have been drawn only when seniority list was proved to be in existence and not produced before the Court.
Page 19 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021C/LPA/628/2021 JUDGMENT DATED: 26/07/2021
10. Consequently, all the 3 grounds raised by the learned advocate for the appellant fail. We are in total agreement with the reasonings given by the learned Single Judge. No interference is called for in exercise of appellate powers of this Court in the present intra-Court appeal. The appeal, being merit- less, deserves to be dismissed and is hereby dismissed. However, there shall be no order as to costs.
(R.M.CHHAYA, J) (NIRZAR S. DESAI,J) Maulik Page 20 of 20 Downloaded on : Tue Jul 27 05:29:35 IST 2021