STATE OF GUJARATversusNATVARBHAI RAYSINGBHAI HARIJAN

     C/SCA/12091/2018                           JUDGMENT DATED: 15/06/2026




      IN THE HIGH Court OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 12091 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI
================================================================
             Approved for Reporting             Yes              No

================================================================
                           STATE OF GUJARAT
                                 Versus
                  NATVARBHAI RAYSINGBHAI HARIJAN & ANR.
================================================================
Appearance:
MR S.J. DESAI, AGP for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
================================================================
 CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
                  Date : 15/06/2026
                    JUDGMENT




1.       Heard learned AGP Mr. S. J. Desai for the petitioner and

         learned advocate Mr. Dipak Dave for the respondent.

         Though served, none appeared for respondent No.2.

         Perused the record.




2.       By way of this petition, under Article 226 of the

         Constitution of India, 1950, the petitioner has prayed to

         quash and set aside the impugned judgment and award

         passed below Exh.44 in Reference (T) No.732 of 2006 on



                                 Page 1 of 10
     C/SCA/12091/2018                              JUDGMENT DATED: 15/06/2026




         2.4.2018 by learned Presiding Officer, Labour Court No.2,

         Godhra.




3.       Learned AGP for the petitioner – State has submitted that

         respondent No.1 – workman was working as a Rojamdar –

         Chowkidar      since   1982.     The    respondent      No.1      was

         discharged from his duties in the year 1989. It is submitted

         that respondent No.1 did not prove that he had worked for

         more than 240 days prior to the year from his termination.

         It is submitted that as per the attendant register, the

         employee had worked for NIL days in the year 1983, 10

         days in the year 1985, 70 days in the year 1986 and NIL

         days in 1987-88. The learned Labour Court has committed

         an error by not relying upon the said evidence and held

         that the employee has worked for 240 days in last five

         years of his termination. The work of employee was

         seasonal, as and when requirements arose, employee's

         services were taken. Therefore, there was no recruitment

         of employee after following due procedure of Government.

         There is no breach of the provisions of section 25F of the

                                  Page 2 of 10
     C/SCA/12091/2018                           JUDGMENT DATED: 15/06/2026




         Industrial Dispute Act, 1947 (for short, hereinafter referred

         to as `the Act’). It is also not established by the employee

         that no seniority list was maintained and junior to the

         responder No.1 - employee is taken on work by petitioner.

         The order of reinstatement with back wages is illegal and

         requires to be quashed and set aside. It is submitted that

         the respondent has completed 6 years of service with early

         age of superannuation. It is also submitted that there is a

         gross delay of 15 years in approaching the learned Labour

         Court by way of reference. No other submissions are made

         except the above.




4.       Per contra, learned advocate for respondent No.1 has

         supported the findings of the learned Labour Court. It is

         submitted that employee was in services of petitioner since

         1982 as daily wager. Service of employee was terminated

         by petitioner in the year 1989. It is submitted that the

         responder No.1 has attained the age of superannuation in

         the year 2025. It is submitted that the petitioner has failed

         to establish by placing a reliable and trustworthy evidence

                                Page 3 of 10
     C/SCA/12091/2018                         JUDGMENT DATED: 15/06/2026




         such as; the muster roll. The muster roll which has been

         placed on record by petitioner was incomplete and was

         produced in piecemeal years. It is submitted that the basic

         requirement of pleading, completion of 240 days of

         continuous service has been established by respondent

         No.1 and therefore the onus to prove that the workman has

         not completed 240 days of continuous service shifts on the

         petitioner. It is submitted that petitioner has grossly

         violated the mandatory provisions of Section 25F of the Act

         by not giving one month's notice in writing including the

         reasons for retrenchment and one month wages for notice

         period. No other submissions are made except the above.

         Learned advocate for the respondent submitted that since

         employee has reached the age of superannuation in the

         year 2025, a reasonable lump-sum compensation may be

         considered looking at the number of years he has put in

         service.




5.       Having considered the submissions canvassed by the

         learned advocates for the parties and on perusal of the

                               Page 4 of 10
C/SCA/12091/2018                          JUDGMENT DATED: 15/06/2026




    papers, the petitioner has also come out with a case that

    the respondent No.1 was appointed on a temporary

    employment and he was paid on daily basis. The core

    contentions of the learned AGP are two folds; (i) Non-

    completion of 240 days of service in preceding year of

    termination & (ii) the reference being hit by principles of

    delay, laches and acquiescence. There are line of decisions

    on the question of limitation. Provisions of Limitation Act,

    1963 are not applicable to the reference made under

    Industrial Disputes Act, but delay in raising industrial

    dispute is definitely an important circumstance which the

    learned Labour Court should keep in view at the time of

    deciding the reference. The service of respondent No.1 was

    terminated in the year 1989. The onus to prove completion

    of 240 days of service preceding year of termination is

    undisputedly on the shoulder of the workman. It is the case

    of workman right throughout the reference that workman

    was not given identity card, attendance card, pay slips

    though demanded from petitioner. It is high to expect from

    a daily wager to produce documents of his completing 240



                           Page 5 of 10
     C/SCA/12091/2018                          JUDGMENT DATED: 15/06/2026




         days of service before 12 months of his termination. The

         best available documentary evidence to establish whether

         the workmen has completed 240 days or not preceding 12

         months is always with the employer. The employee has no

         source to prove that he has completed 240 days of service

         in absence of payslip and other material documents. The

         employer is therefore expected to produce documentary

         evidence such as attendance register, pay slips, muster roll

         etc. to nullify the claim of completion of 240 days of

         service. Therefore, the employee in absence of any

         evidence, is required to plead that he has completed 240

         days of service through pleadings and oral deposition.




6.       In the present case, attendance statement is produced by

         the petitioner which indicates that the employee has

         worked for 10 days in the year 1985 and 70 days in the

         year 1986. The year of termination is 1989. The petitioner

         has not produced any pay slips, salary statement,

         attendance statement, muster roll from 1986 till 1989. The

         muster roll which has been produced by the petitioner is

                                Page 6 of 10
     C/SCA/12091/2018                                 JUDGMENT DATED: 15/06/2026




         found to be incomplete. The evidence which has been

         relied upon by the petitioner is incomplete and not reliable.

         Therefore, relying upon such incomplete evidence, it

         cannot be presumed that the petitioner has proved that

         Respondent No.1 has not completed 240 days of service or

         workman has not established and proved that he has

         completed 240 days of service. In my view, on appreciation

         of the order impugned and the material placed on record,

         order of setting aside a dismissal decision is proper and

         legal.




7.       As far as the question of limitation is concerned, learned

         Labour Court has discussed in detail that there is no

         specific       provision   of   limitation   in    filing    reference

         proceedings under the Industrial Disputes Act. Before

         venturing into aspect of delay in filing reference, it would

         be apposite to consider an important fact which has

         cropped up during the course of hearing that employee has

         attained the age of superannuation in the year 2025. In

         such scenario, the order of reinstatement of the employee


                                     Page 7 of 10
     C/SCA/12091/2018                                    JUDGMENT DATED: 15/06/2026




         remains of an academic issue. In the case of State of

         Uttar Pradesh v. Krishna Murari Sharma in the case

         of 2025 LawSuit (SC), 1677, it has been held by Hon’ble

         Supreme Court that gross delay is a relevant factor in

         molding relief even if termination is held illegal and relief

         can be modified to lump-sum compensation in lieu of

         reinstatement and back wages. In paragraph No.13,

         Hon’ble Apex Court held as under:


                        “13. Taking the entire circumstances into account,
                        especially the fact that there was a 16 year delay in
                        seeking a reference, we are of the opinion that a lump
                        sum compensation of Rs.2,50,000/- (Rupees Two Lakhs
                        and fifty thousand) would suffice. The order of the
                        Labour Court as affirmed by the High Court are both set
                        aside to the extent of reinstatement and award of back
                        wages. While upholding the award regarding the
                        illegality of the termination, reckoning the gross delay
                        caused, a lump sum compensation of Rs.2,50,000/-
                        (Rupees Two Lakhs and fifty thousand) would be paid to
                        the respondent-workman within a period of two months
                        from the date of receipt of certified copy of this order. If
                        the said sum is not paid within the period stipulated, the
                        State shall be liable to pay interest at the rate of 7% per
                        annum from the date of expiry of the two- month
                        period.”



8.       The question remains now as to what should be the

         method and manner of calculating lump-sum compensation



                                      Page 8 of 10
C/SCA/12091/2018                            JUDGMENT DATED: 15/06/2026




    to a workman in lieu of reinstatement with or without back

    wages. Decision of the Hon’ble the Division Bench of this

    Court dated 9.5.2024 passed in Letters Patent Appeal

    No.908 of 2023 and allied matters in the case of

    Bhikhbhai Fatabhai Solanki v. Executive Engineer,

    Narmada Project Canal System is relevant for deciding

    a lump-sum compensation to respondent herein. In

    paragraph No.10 of the above cited decision, the Hon’ble

    Division Bench has proposed a method of calculating

    compensation. Applying the same proposition in the

    present case, respondent No.1 would fall in the first

    category as the employee was in the service of petitioner

    from 1982 to 1989. Therefore, the respondent No.1 shall be

    entitled to a lump-sum compensation of Rs.3,00,000/-. The

    petitioner herein shall pay a lump-sum compensation of

    Rs.3,00,000/- to respondent No.1 in lieu of reinstatement

    without back wages within a period of six weeks from the

    date of receipt of this order, failing which, the petitioner

    shall pay interest at the rate of 6% p.a. to respondent No.1

    from the date of illegal termination till the date of attaining



                            Page 9 of 10
                   C/SCA/12091/2018                                                       JUDGMENT DATED: 15/06/2026




                        superannuation.




              9.        The petition stands disposed of in above terms. Rule is

                        made absolute to the aforesaid extent. No order as to

                        costs.



                                                                                                        (D. M. DESAI,J)
              vk




Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: VATSAL KOTECHA(HC00352), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 18/06/2026 15:47:38




                                                               Page 10 of 10