Point in Issue :
Whether Labour Court award requires to be modify to clearfy that petitioner shall be entitled to continuity of service as well.

H.K. Rathod, J.—Heard Learned Advocate Mr. DM Devnani for petitioner and Mr. Anand L. Sharma, learned AGP for respondent State of Gujarat.

2. Learned Advocate Mr. Devnani for petitioner has supplied copy of present petition with all annexures thereto to learned AGP Mr. Anand L. Sharma for respondent State and, therefore, learned AGP Mr. Sharma has appeared for respondent and made his submissions.

3. Considering submissions made by both Learned Advocates, question involved in this petition would require detailed examination. Hence, Rule. Service of rule is waived by learned AGP Mr. Anand L. Sharma on behalf of respondent State. With consent of both Learned Advocates, matter is taken up for final hearing today.

4. In present petition, petitioners have challenged award passed by Labour Court, Jamnagar in Reference (LCJ) No. 75 of 2002 to 79 of 2002 Exh. 27 Annexure A page 22 dated 10.7.2008 wherein labour Court has partly allowed references and directed respondent establishment to reinstate petitioners in service on their original post within thirty days from date of publication of award without back wages for interim period.

5. Before labour Court, Jamnagar, specific argument was made by representative for petitioners that if labour Court come to conclusion that petitioners are entitled for reinstatement in service, then, petitioners are not claiming any amount of back wages for interim period from respondent. Accordingly, considering aforesaid submission made by representative for petitioners, labour Court has not granted any amount of back wages for interim period in favour of petitioners.

6. Learned Advocate Mr. Devnani for petitioners has submitted that in Para 13 of award, labour Court has, in terms, come to conclusion that each petitioner has completed continuous service as required under Section 25B(1) and (2) of ID Act, 1947. Documents demanded by petitioners from respondents before labour Court were not supplied by respondents and, therefore, he submitted that labour Court has rightly drawn adverse inference against respondent on the ground that inspite of fact that documents are in possession of respondent, respondent has not produced same on record even though order passed by labour Court and no affidavit has been filed by respondent before labour Court and in oral evidence, no reason has been disclosed for non production of documents demanded by petitioners. Witness for respondent has admitted in cross examination that presence and pay register of concerned petitioners were maintained by respondent department. Even though, intentionally, demand made by petitioners has not been satisfied by respondents while producing relevant record of presence register and pay register before labour Court and, therefore, he submitted that once labour Court has come to conclusion that petitioners have established continuous service under Section 25B(1)(2) of ID Act, 1947 and Section 25F of ID Act, 1947 has been violated by respondents while terminating service of petitioners, then, such order of termination becomes void, ab initio. He relied upon decision of apex Court in case of Mohan Lal vs. The Management of M/s. Bharat Electronics Ltd., AIR 1981 SC 1253. Relevant Para 12 of said judgment is quoted as under:

“12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It 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 one year or six months, as the case may be, if the workman during the period of 12 calendar 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. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in Sub-section (1) for a