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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M. K. THAKKER, J.
Nikhil Praveenbhai Joshi – Appellant
Versus
Chief General Manager & Ors. – Respondents
R/Special Civil Application No. 15518 of 2024
Decided on : 18-11-2024
(A) Constitution of India - Articles 14, 16, 226, and 277 - Industrial Disputes Act, 1947 - Section 25-B - Petition challenging the Labor Court's award of dismissal for failing to prove 240 days of service - Court held that mere pendency of appeal does not stay proceedings, and the burden of proof lies with the workman. (Paras 3, 5, 6, 8)
(B) Burden of proof - The burden lies on the workman to establish completion of 240 days of service prior to termination, and failure to produce adequate evidence results in dismissal of claims. (Paras 5.1, 5.2)
Facts of the case:
The petitioner, employed as a peon since 2000, was orally terminated in 2004 without due process under the Industrial Disputes Act. The Labor Court dismissed the reference for lack of evidence regarding service duration.
Findings of Court:
The Labor Court correctly concluded the workman did not meet the 240-day requirement, and the dismissal was upheld.
Issues: Whether the petitioner completed 240 days of service and the implications of pending appeals on Labor Court proceedings.
Ratio Decidendi: The court affirmed that the workman must provide evidence of service duration to avoid dismissal, and procedural compliance is essential in labor adjudication.
Result: Petition dismissed.
JUDGMENT :
1. Rule returnable forthwith.
2. This petition is filed under Article 14, 16, 226 and 277 of the Constitution India of following prayers:
(B) Pending admission and final disposal of the present petition, the Hon.ble Court be pleased to stay the operation and implementation of the award passed by the Hon'ble Labour dated 11/10/2024 in Reference (LCA) 56/2004(ANNEXURE-A).
(C) Any other relief to which this Hon'ble Court deem fit and proper in the interest of justice together with cost.”
3. It is the case of the workman that he was working as peon under the respondent employee since 01.03.2000 and he was paid the wages of Rs.2,250/- per month. He was orally terminated with effect from 05.02.2004 without following the provision of the Industrial Dispute Act, 1947. Therefore dispute was raised before the conciliation officer and thereafter, it was referred to the learned labour court. The learned labour court after considering the evidence placed on record has dismissed the reference on the ground that workman fails to prove the mandatory requirement of section 25-B of completion of 240 days in preceding years from the date of termination. The same is subject matter of challenge before this court.
4. Heard learned advocate Mr.P.H.Pathak for the petitioner workman.
4.1. Learned advocate Mr.P.H.Pathak submits that though initially reference was awarded in favour of the petitioner, respondent challenged before this Court on the ground that it was ex-parte award and the learned co-ordinate bench of this court vide order dated 27.06.2024 has allowed the petition and remanded back to the learned labour court for deciding afresh after giving opportunity to both the parties to lead the evidence. Learned advocate Mr.P.H.Pathak submits that aforesaid order passed by this Court dated 27.06.2024 in SCA No. 9468 of 2008 was challenged before the Division Bench of this Court and after issuing the notice same was pending for adjudication learned labour court in haste has decided the reference against the present petitioner. Learned advocate Mr.P.H.Pathak submits that during the pendency of the petition wages under section 17-B was granted by this Court and was paid by the respondent also. Therefore, no question arises to dispute the relation of master and servant as claimed by the respondent. Learned advocate Mr.P.H.Pathak submits that in addition to above aspect vouchers were produced before the learned labour court below Exh.60 to 63 showing that wages were paid by the principal employer and therefore contention of the present respondent regarding contractual employment through Radient Enterprise is baseless.
4.2. Learned advocate Mr.P.H.Pathak has relied on the judgment of the Apex Court in the case of Hussainbhai Vs The Alath Factory Tezhilali Union and Ors. reported in AIR 1978 SC 1410 and submitted that the contract which was executed between the respondent and the Radient Enterprise is paper arrangement and therefore the present petitioner cannot be said as an employee of the Contractors. Learned advocate Mr.P.H.Pathak submits that though the application was preferred by the petitioner workman seeking production of the documents below Exh.28 and was allowed in favour of the present petitioner on 05.09.2024 without complying with the above directions learned labour court has committed error in not drawing adverse inference and by holding that no evidence was led to show that the petitioner has completed 240 days in the preceding years.
4.3. Learned advocate Mr.P.H.Pathak has relied on the decision rendered by the Apex Court in
The burden of proof lies with the workman to demonstrate completion of 240 days of service prior to termination, and failure to fulfill this requirement results in dismissal of claims.
Labour Court has held against the workman on the basis that the documents like pay sleep, muster roll etc. are not produced. But, at this juncture, it is require to peruse the oral evidence of the wo....
The court upheld that the burden of proving continuous service and employee-employer relationship lies with the workman, which was not met, leading to dismissal of the claim based on delay and lack o....
In a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case whe....
To employ workmen as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.”
In absence of any evidence produced by the petitioner workman establishing that he had worked under the Respondent continuously for 240 days and, coupled with the fact that the industrial dispute has....
The burden of proof for continuous service of 240 days rests on the workman, and mere self-serving statements are insufficient to establish this claim.
Point of law :Labour Law - There is no proof that the workman has worked for 240 days and, therefore, it was held by the Labour Court that there is no proof that the workman was working continuously ....
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