Termination without following Section 25F of the Industrial Disputes Act is unlawful, warranting reinstatement and continuity of service.

ORDER :

(Biren Vaishnav, J.)

1. These appeals arise out of the oral judgement dated 26.02.2021 passed by the learned Single Judge in the respective captioned petitions by which the learned Single Judge dismissed the petitions of the State confirming the awards passed by the Labour Court which were impugned in the respective writ petitions.

2. Since the facts in these appeals are common, we shall take into consideration facts of Letters Patent Appeal No. 177 of 2022 for the sake of convenience.

2.1 Before the Labour Court, it was the case of the respondent workman that he was working in the establishment of the appellant State since November 1998 as Peon on a monthly salary of Rs.1350/-. His service was terminated on and from 28.02.2006. It was his case that he had worked for over ten years in the establishment.

2.2 The contention of the appellant State was that the workman was working as a daily wager; that he had not worked for 240 days of service in each year; he was not entitled to reinstatement and backwages. The labour Court by the impugned award granted reinstatement with continuity of service.

3. Ms. Roshni Patel, learned AGP appearing for the appellant State would submit that the Labour Court committed an error in granting reinstatement without backwages and also granting continuity of service. It was her submission that the workmen had been negligent inasmuch as though the references were dismissed for default, the same were only restored after several years and therefore the State should not be saddled with extending benefits of reinstatement and continuity of service. She has submitted that so far as Letters Patent Appeal No. 250 of 2024 is concerned, the respondent was working elsewhere after his termination.

4. Ms. Himani Kini, learned advocate appearing for the respondent workmen would support the award of the Labour Court as well as the order passed by the learned Single Judge.

5. Mr. Adeshara, learned advocate appearing for the respondent workmen in Letters Patent Appeal No. 250 of 2024 has also supported the impugned award and the order of the learned Single Judge. He has stated that the amount of 25% backwages is already paid to the respondent.

6. Perusal of the awards passed by the Labour Court so also the judgment of the learned Single Judge confirming the awards would indicate that it was an undisputed fact established before the Labour Court that the respondent workmen had rendered more than ten years of service. Having worked on a fixed wage of Rs.1350/- it was their case that they had completed 240 days of service in each year preceding the termination and therefore their termination without following proper procedure under Section 25F of the Industrial Disputes Act, 1947 was a termination which was rightly set aside by the Labour Court.

6.1 The Labour Court has examined the witness of the employer who in his deposition has stated that there were no appointment orders nor any muster rolls available. However, in the cross examination he had admitted that the note of presence was kept by preparing a list on the basis of which the salary was paid for the days when the workmen’s presence was marked. It was further brought out in the cross examination which the Labour Court has observed is that the records of measurement works were kept on record establishing the presence of workmen from the year 1999 till 2007 was available and which will be produced. It was also pointed out that it had come on record that such documents showing the number of days that the workmen had worked though admitted to be available was not produced. Drawing adverse inference based on the decisions of Apex Court in the case of R.M. Yellati vs. Asst. Executive Engineer reported in (2006) 1 SCC 106 and that of this court in the case of Bilimora Nagarpalika vs. Jashuben Jashavantbhai Solanki reported in 2013(10 GLR 845, the Labour Court came to the conclusion that adverse inference had to be drawn. Observing that the workmen had been negligent in