The judgment establishes the importance of evidence in labor disputes, the presumption in favor of the workman in the absence of employer-produced records, and the application of previous case law in determining violations of the Industrial Disputes Act.

ORDER :

1. Heard Mr. Soaham Joshi learned AGP for the State and Mr. Dhaval Kansara learned advocate for Mr. Premal Rachh learned advocate for the respondent.

2. Challenge in this petition under Article 226 of the Constitution of India is to the award of the Labour Court, Jamnagar, dated 08.12.2020 at the hands of the State. By the award under challenge, the respondent-workman succeeded whereby, he was directed to be reinstated with 20% back-wages.

3. Facts in brief would indicate that the respondent-employee workman approached the Labour Court being aggrieved by his discontinuance/termination from the employment within effect from 01.12.2015. It was his case that he had been rendering uninterrupted and continuous services from July 2005 and therefore, made a statement of claim before the Labour Court that having continued to work over a period of 10 years and having completed 240 days in each year of service, discontinuance from service was in violation of the provisions of Section 25F of the Industrial Disputes Act.

4. Mr. Soaham Joshi learned AGP would assail the award of the Labour Court on the ground that the work for which the respondent workman was engaged was not perennial. He would further submit that from the evidence produced before the Labour Court, it was very clear that the petitioner had really not worked for 240 days in each year of service. He would take the Court through the relevant portion of the award of the Labour Court setting out the number of days that the respondent had worked. Reference was made to the periods inasmuch as in the year 2006, he had worked for 182 days, in the year 2007, he had worked for 104 days, in the year 2008, he had worked for 50 days, and thereafter in the year 2013, he had worked for 42 days, in the year 2014, he had worked for 177 days and in the year 2015, he had worked for 92 days. It is the case of the learned AGP therefore that the respondent workman was not entitled to reinstatement much less even back-wages.

5. Mr. Kansara learned advocate would support the award of the Labour Court.

6. Considering the factual background based on which the award was rendered and having perused the evidence on record, what is evident is that the Labour Court has observed that no documents were produced by the employer for the period from 2008 to 2013 despite a direction to that effect. The Labour Court therefore opined that in absence of any record so produced, there was a presumption that needed to be drawn in favour of the workman that he had completed 240 days in each year of service. Reliance by the Labour Court was placed on the decision in case of R.M. Yelati vs. Assistant Executive Engineer, 2006 (1) SCC 106. What is also evident from the perusal of the award in question is that the Labour Court found that having worked for a period of 10 years and the work which was being carried out by the respondent-workman was continued and was being given through outsourcing, there was a violation of provisions of Section 25G too. Para 22.4 of the award of the Labour Court discusses facts of identical reference viz. Reference Case No. 287 of 2000, wherein, the Labour Court had directed, on similar facts, an award of reinstatement with 10% back-wages. That award was challenged by Special Civil Application No. 7552 of 2011 and this Court on 05.08.2011 held as under:

“1. Heard leaned AGP, Mr. Neeraj Soni, for the petitioner No. 1-State of Gujarat through the Circle Forest Officer, Normal Range, Jam-Khambhalia, Jamnagar and petitioner No. 2-Deputy Forest Officer, Normal Range, Jamnagar.

2. The petitioners are before this Court, being aggrieved by the award and order dated 10.08.2010, passed by the learned Judge, Labour Court No. 2, Jamnagar, in Reference (L.C.J.) No. 287/2000, whereby the learned Judge was pleased to partly allow the reference and ordered reinstatement of the respondent-workman on his original post with continuity of service, with 10 per cent back wages from 27.04.2005 i.e. the day on whic