Point of Law: It is well settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25B of the Industrial Disputes Act, 1947

JUDGMENT :

1. Since the common issue and facts are involved in the present writ petitions, the same are heard and decided analogously.

2. In the captioned writ petitions, the respondents-workmen have challenged the awards passed by Labour Court, Nadiad, wherein and whereby, the petitioner-Nagarpalika is directed to reinstate the respondent-daily wagers with continuity of service without back wages.

3. Learned advocate Mr.Mehulsharad Shah appearing for the petitioner-Nagarpalika has submitted that the award of the Labour Court suffers from non-application of mind as no evidence - either documentary or oral was produced before the Labour Court and the award is passed in favour of the respondents-employees only on conjunctures and surmises. It is submitted that the petitioner-Nagarpalika had initially passed a Resolution No.510 dated 22.10.1999 to convert the part time daily wagers to full time daily wagers, but vide order dated 16.12.1999, the Health Officer directed the Nagarpalika to postpone the implementation of the said order since there were instructions issued by the Election Commission due to election and by the order dated 21.12.1999, the Resolution was suspended. Ultimately, the Collector, while exercising the powers under Section 258 (1) of the Gujarat Municipalities Act, 1963 vide order dated 08.06.2001 had suspended those resolutions. It is submitted that because of the said resolutions, the respondents-workmen raised an industrial dispute alleging that they were terminated by the Nagarpalika and the same has culminated into the references.

4. It is submitted by the learned advocate Mr.Shah that by the order dated 21.06.2011, the reference was dismissed for want of evidence and thereafter, on an application filed by the respondents-employee, the case was restored vide order dated 17.03.2012. It is submitted that thereafter vide impugned award, the references were allowed. It is submitted that the respondents-employees did not produce any evidence before the Labour Court showing that they had actually worked for 240 days or were in fact the employees of Nagarpalika and the Labour Court without calling for necessary evidence or examining any evidence in this regard has passed the impugned award and hence, the same is required to be quashed and set aside. In support of his submissions, he has placed reliance on the judgment of the Coordinate Bench dated 23.07.2019 passed in Special Civil Application No.2685 of 2012 and has submitted that the employer is not obliged to maintain the seniority list of daily wages and burden lies upon the party who asserts violation of provisions of Sections 25G and 25H of the Industrial Disputes Act, 1947 (for short “the ID Act”). It is submitted that in the present case also it was for the respondents-employees to establish the dates of their appointment and their termination is in violation of Section 25G of the ID Act. Thus, it is submitted that since in absence of any evidence before the Labour Court, no award should have been passed directing the Nagarpalika to reinstate the respondents-employees in service.

5. In response to the aforesaid submissions, learned advocate Mr.U.T.Mishra appearing for the respondents has submitted that the Labour Court has precisely passed the award directing the Nagarpalika to reinstate the workmen in service since the Nagarpalika had passed a Resolution dated 22.10.1999, whereby it was decided to convert the part time daily wagers to full time daily wagers and hence, in view of the said resolution, the Labour Court has held that the employees were in fact working under the petitioner-Nagarpalika. It is submitted that the petitioner-Nagarpalika could have produced the evidence – either orally or documentary to show that they were being engaged by the Nagarpalika for undertaking necessary work, but since the same was not produced, the Labour Court has precisely relied upon the statement of the respondents-employees that they were engaged by the Nagarpalika. Th