The main legal point established in the judgment is that in cases of illegal termination, reinstatement with backwages is the appropriate relief, considering the sustained unemployment of the employee and the management's litigative proclivity.

JUDGMENT :

S. RAVINDRA BHAT, J.

1. Leave granted. With consent, learned counsels for the parties were heard finally. This appeal is directed against an order of the Gujarat High Court¹[Dated 05.07.2021 in LPA No.896/2011 in Special Civil Application No. 5620/2011.].

2. Aggrieved by the termination from employment, the appellant raised an industrial dispute which was referred to the Labour Court, Bhuj, Kutchh District of Gujarat. The appellant was appointed as a Watchman on 05.10.1992 by the respondent society (hereafter referred to as “the management”), and lastly, he was working as a watchman at the Shirai Dam at the Beraja Village of Mundra Taluk, Gujarat, with the respondent. After rendering continuous employment, he was terminated from the services on 30.12.2002 for no cause, without notice and without following the procedure prescribed by the Industrial Disputes Act, 1947. His request for reinstatement was negated; consequently, the industrial dispute.

3. The management disputed the claim on the basis that the appellant worked in a purely temporary basis and could not claim the benefit of Section 25B of the Industrial Disputes Act, 1947 as he had not worked for a continuous period of 240 days in any given year. However, his employment as a workman since 1992 was not denied.

4. Before the Labour Court, the parties led evidence-oral and documentary. A copy of the muster roll maintained by the management was called for. In the evidence, the appellant deposed that the management did not maintain any seniority list nor was it published and that employees junior to him were retained while he was unfairly terminated from service. The respondent management contended that the entire muster roll records was not available as it was destroyed during a natural calamity; they could produce the documents for the years 1994-98. After considering the pleadings and the materials on record, the Labour Court, by Award dated 31.08.2010, held that the appellant’s termination was illegal and directed his reinstatement with continuity but without backwages.

5. The management challenged the award, mainly contending that the appellant workman was not entitled to the benefits of the Industrial Disputes Act. The learned Single judge of the Gujarat High Court endorsed the findings of the Labour Court, affirming the Award, and directed the appellant’s reinstatement. The management, however, appealed to the Division Bench. Initially, the Division Bench rejected the appeal; the management approached this court by special leave petition. This court remitted the matter for fresh consideration.

6. By the impugned order, the Division Bench noticed the findings of the single judge that workmen junior to the appellant had been retained in service despite which his services were terminated and that the management had not maintained proper records. In spite of these facts, the Division Bench set aside the direction to reinstate the appellant workman and instead awarded lumpsum compensation of Rs.1 lakh.

7. The appellant contends that the Labour Court and the learned single Judge concurrently ruled that sufficient material had been brought on record to show that 63 labourers were working with the respondent management, many of whom were junior to the appellant. It was pointed out that the workman appellant had moved the Labour Court to direct the management to produce all relevant service particulars of its employees’ muster roll, pay register, and bonus register. An appropriate direction was issued in this regard. Since the management did not produce the entire records, the Labour Court drew an adverse inference and based on available material concluded that the termination was illegal. In these circumstances, all the findings were endorsed by the High Court; the substitution of the order of reinstatement amounted to a miscarriage of justice. It was submitted that the appellant had been unfairly kept out of employment, despite the fact that the award was made in 2010,