M. K. Thakker, J
1. Rule returnable forthwith.
2. This petition is filed under Article 14, 16, 226 and 277 of the Constitution India of following prayers:
“(A) The Hon'ble Court be please to issue writ a of certiorari or any other appropriate writ order or direction declaring the impugn
award passed by the Labor Court dated 11/10/2024 in Reference (LCA) 56/2004(ANNEXURE- A) as illegal, arbitrary and non-application
of mind and be pleased to quash and set aside the same and direct the respondents to reinstate the petitioner in services with all
consequential benefits.
(B) Pending admission and final disposal of the present petition, the Hon.ble Court be pleased to stay the operation and implementation of
the award passed by the Hon'ble Labour dated 11/10/2024 in Reference (LCA) 56/2004(ANNEXURE-A).
(C) Any other relief to which this Hon'ble Court deem fit and proper in the interest of justice together with cost.â€
3. It is the case of the workman that he was working as peon under the respondent employee since 01.03.2000 and he was paid the wages of
Rs.2,250/- per month. He was orally terminated with effect from 05.02.2004 without following the provision of the Industrial Dispute Act, 1947.
Therefore dispute was raised before the conciliation officer and thereafter, it was referred to the learned labour court. The learned labour court after
considering the evidence placed on record has dismissed the reference on the ground that workman fails to prove the mandatory requirement of
section 25-B of completion of 240 days in preceding years from the date of termination. The same is subject matter of challenge before this court.
4. Heard learned advocate Mr.P.H.Pathak for the petitioner workman.
4.1. Learned advocate Mr.P.H.Pathak submits that though initially reference was awarded in favour of the petitioner, respondent challenged before
this Court on the ground that it was ex-parte award and the learned co-ordinate bench of this court vide order dated 27.06.2024 has allowed the
petition and remanded back to the learned labour court for deciding afresh after giving opportunity to both the parties to lead the evidence. Learned
advocate Mr.P.H.Pathak submits that aforesaid order passed by this Court dated 27.06.2024 in SCA No. 9468 of 2008 was challenged before the
Division Bench of this Court and after issuing the notice same was pending for adjudication learned labour court in haste has decided the reference
against the present petitioner. Learned advocate Mr.P.H.Pathak submits that during the pendency of the petition wages under section 17-B was
granted by this Court and was paid by the respondent also. Therefore, no question arises to dispute the relation of master and servant as claimed by
the respondent. Learned advocate Mr.P.H.Pathak submits that in addition to above aspect vouchers were produced before the learned labour court
below Exh.60 to 63 showing that wages were paid by the principal employer and therefore contention of the present respondent regarding contractual
employment through Radient Enterprise is baseless.
4.2. Learned advocate Mr.P.H.Pathak has relied on the judgment of the Apex Court in the case of Hussainbhai Vs The Alath Factory Tezhilali Union
and Ors. reported in AIR 1978 SC 1410 and submitted that the contract which was executed between the respondent and the Radient Enterprise is
paper arrangement and therefore the present petitioner cannot be said as an employee of the Contractors. Learned advocate Mr.P.H.Pathak submits
that though the application was preferred by the petitioner workman seeking production of the documents below Exh.28 and was allowed in favour of
the present petitioner on 05.09.2024 without complying with the above directions learned labour court has committed error in not drawing adverse
inference and by holding that no evidence was led to show that the petitioner has completed 240 days in the preceding years.
4.3. Learned advocate Mr.P.H.Pathak has relied on the decision rendered by the Apex Court in the case of National Insurance Co. Ltd Vs M/s Ishar
Das Madan Lal reported in 2007 4 SCC 105 as well as in the case of Director, Fisheries Terminal Department Vs Bhikubhai Meghajibhai Chavda
reported in (2010) 1 SCC 47 and submitted that burden would be discharge only upon the workman stepping in the box and when the application has
already been preferred which was ordered and not complied with by the Management to produce the evidence on record then adverse inference is to
be drawn in favour of the workman to conclude that the workman has completed 240 days in the preceding year.
4.4. Learned advocate Mr.P.H.Pathak submits that learned labour court committed error in relying on the evidence which was produced below
Exh.60 to 63 only for the purpose of showing the relation between the employee and the employer and not for the purpose of completion of 240 days.
Learned advocate Mr.P.H.Pathak submits that without considering the decision rendered by the Apex Court which was relied in written arguments by
the petitioner-workman learned labour court has awarded the reference against the present petitioner and therefore, same is required to be interfered
with and present petition is required to be allowed.
5. Considering the submission made by the learned advocate and perusing the record, it transpires that the petition was filed challenging the ex-parte
award before this Court being SCA No. 9468 of 2008 which was allowed by the Co-ordinate Bench of this Court vide order dated 27.06.2024 and
reference was remanded back to the learned labour court with direction to decided after giving due opportunity to both the parties to lead the
evidence. It further transpires from the record that against the aforesaid order letters patent appeal was filed before this Court being LPA No.1265 of
2024 wherein, notice was issued without granting any stay by the Division Bench of this Court. The contention raised by the learned advocate that
though LPA was pending learned labour court has committed error in deciding the reference appears to misconceived as merely pendency of the
appeal would not amount to granting the stay and learned labour court is not supposed to stall the proceedings when this court has already directed in
the petition to conclude the hearing after giving due opportunity to both the parties. This Court is of the view that learned labour court has not
committed any error on that count to decide the reference after the order is passed by the learned Single Judge by the Co-ordinate Bench of this
Court in SCA No. 9468 of 2008 which was not stayed in the Intra Court Appeal preferred by the present petitioner.
5.1. Other ground which was raised by the present petitioner is that though no evidence was produced by respondent as per the directions issued by
the learned labour court production application, instead of drawing adverse inference, learned labour court has decided reference against present
petitioner on the ground that petitioner has not completed 240 days in preceding year. It is required to be noted herein that Exh.60 to 63 which were
produced before the learned labour court by the present petition showing that present petitioner was the employee of the principal employer not of the
Contractors suggests that present petition has completed 92 days from 03.08.2000 to 02.03.2001. If the petitioner could have produced these
documents below Exh. 60 to 63 i.e voucher of wages then he could have produced the documents showing that he worked from 2000 to 2004
continuously however, for this limited period voucher which was produced suggest that he had not completed service of 240 days in any of the
preceding years. This voucher might have been produced for the purpose to show that there is a relation between the petitioner and the employee of
master and servant but that does not mean that learned labour court cannot consider the voucher for other purpose i.e to ascertain the aspect of 240
days in preceding year.
5.2. The judgments which are relied upon by the learned advocate Mr.Pathak for the purpose to draw the adverse inference wherein, no documents
are produced by the workman and application was preferred. In that scenario production application was preferred and was allowed. In that
background, Hon’ble Apex Court has held that adverse inference is required to be drawn and it can be said that burden is discharged by the
workman by stepping in the witness box and by filing the production application. Herein the case it was not such fact therefore, learned labour court
has rightly dismissed the reference on the ground that present petitioner fails to produce any evidence to show that he completed 240 days in
preceding year.
6. At this stage this court is referring the decision rendered by the Apex Court in case of Municipal Corporation, Faridabad Vs. Siri Niwas reported in
(2004) 8 SCC 195 wherein Apex Court has held as under:
“13. The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are,
however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The
burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged
retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless
the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by employer for effecting a
valid retrenchment :
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;â€
(ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in
excess of six months.
14.For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25-B of the Act. In terms of
sub-Section (2) of Section 25-B that if a 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 240 days within a period of one year, he will be deemed to be in
continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on
17.5.1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore,
necessary for the Tribunal to arrive at a finding of fact that during the period between 5.8.1994 to 16.5.1995 he had worked for a period
of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the
workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the
Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the
office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in
possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms
and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even
did not examine any other witness in support of his case.
21.Curiously the respondent produced copies of some muster rolls before this court. If he was in possession of the said documents, it
betrays one's imagination as to why the same had not been produced before the Tribunal. As indicated hereinbefore, he filed some
documents before the High Court but the same were not accepted. The High Court, therefore, proceeded to pass the impugned judgment
only on the basis of the materials relied on by the parties before the Tribunal. The High Court, in our opinion, committed a manifest error in
setting aside the award of the Tribunal only on the basis of adverse inference drawn against the Appellant for not producing the muster
rolls.â€
7. In view of the above, this court is of the view that learned labour court has not committed error either in facts or on the law and therefore, this
Court is not inclined to entertain the petition by exercising the writ jurisdiction under Article 226 of the Constitution of India.
8. In view of the above this petition is dismissed.
9. Rule is discharged accordingly.
