Gujarat High Court
State Of Gujarat vs Dilavarsha Bhikhusha Shahmdar on 5 August, 2025
NEUTRAL CITATION
C/SCA/17722/2024 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17722 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 784 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 768 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 740 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 1015 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 752 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 973 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 860 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 1159 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 801 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 730 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 815 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 836 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 1197 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 786 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 971 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
YES
==========================================================
STATE OF GUJARAT
Versus
DILAVARSHA BHIKHUSHA SHAHMDAR
==========================================================
Appearance:
MR ADITYA DAVDA, ASST GOVERNMENT PLEADER for the Petitioner(s)
No. 1 IN SCA NO.17722 OF 2024
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MS DIXA PANDYA, ASST GOVERNMENT PLEADER for the Petitioner(s)
No.1 in SCA NOS.740,1015,1159,801, AND 786 OF 2025
MR DHAVAL PARMAR ASST GOVERNMENT PLEADER for the
Petitioner(s) No.1 in SCA NOS 784, 752, 973, 971 OF 2025
MR MRUNAL DHOLARIA ASST GOVERNMENT PLEADER for the
Petitioner(s) No.1 IN SCA NOS.768 AND 815 OF 2025
MS. FORUM BIMAL SUKHADWALA ASST GOVERNMENT PLEADER for
the Petitioner(s) No.1IN SCA NOS.860, 730, 836 AND 1197 OF 2025
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 05/08/2025
COMMON ORAL JUDGMENT
1. Rule, returnable forthwith. Learned advocate
Mr.Pandya waives service of notice of Rule on behalf
of the respondent.
2. Since the issue raised in the these appeals are
similar, they are being decided by a common
judgment. The facts of Special Civil Application
No.17722 of 2024 are taken for the purpose of
adjudication.
3. This petition is filed under Articles 226 and 227 of the
Constitution of India, challenging the judgment and
award dated 27.09.2022 passed by the learned
Labour Court, Jamnagar in Reference (T) No.58 of
2020, whereby the Labour Court directed the present
petitioner to reinstate the respondent to his original
post, without granting the benefits of back wages or
continuity of service.
4. It is the case of the present petitioner that the
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Reference came to be filed by the employees seeking
reinstatement in service from the date of
termination, i.e., 23.05.2005, which was registered as
Reference (T) No.58 of 2020. In the statement of
claim filed before the learned Labour Court, it was
alleged that the respondent-employees were serving
as Ward Servants (Class IV) since 25.09.1994, had
completed 240 days of service, and were being paid
daily wages of Rs.50/-. Their services were allegedly
terminated on 23.05.2005. Demand notices were
issued on 23.12.2019, which went unanswered,
leading to a complaint being filed before the learned
Labour Commissioner, which ultimately culminated in
the present References.
4.1. The petitioner appeared before the learned
Labour Court and contended that the respondents
had not worked continuously from 1994 to 2005 as
alleged, but had only rendered services for a
period of 89 days between 1994 and 1995. It was
further submitted that the Reference, having been
filed after an inordinate delay of 16 years, was
liable to be rejected on the ground that the
respondents had not completed 240 days of
service in the preceding year.
4.2. The learned Labour Court, after considering the
evidence adduced by both sides, partly allowed
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the Reference in favour of the respondents, which
is the subject matter of challenge before this
Court.
5. Heard the learned AGP Ms.Dixa Pandya for the
petitioner State and learned advocate Mr.Yogen
Pandya for the respondent.
Submissions on behalf of the Petitioner:
6. Learned AGP Ms. Pandya submits that the learned
Reference Court has committed an error in drawing
an adverse inference against the present petitioner
and in holding that the respondent had completed
240 days of service in the preceding year. She
further submits that the application for production of
documents, filed by the respondent, was duly replied
to by the petitioner, stating that since the Reference
was filed after more than 16 years, the documentary
evidence sought was no longer traceable.
6.1. Learned AGP Ms. Pandya further contends that
the learned Reference Court erred in shifting the
burden of proof on the petitioner without the
respondent first discharging the initial burden of
establishing his case. It is submitted by the
learned AGP Ms.Pandya that in the absence of
sufficient evidence from the respondent, the award
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passed in his favour is unsustainable. Accordingly,
learned AGP Ms. Pandya prays that the present
petition may be allowed by setting aside the
impugned award.
Submissions on behalf of the Respondent:
7. Per contra, learned advocate Mr. Pandya, appearing
for the respondent, has submitted that in total, 26
References were filed by different employees, and in
all those matters, the learned Labour Court has
awarded the relief of reinstatement without back
wages or continuity of service.
7.1. It is submitted by the learned advocate
Mr.Pandya that the State Government has
accepted the award in 10 similar cases and has
chosen not to challenge the same. However, in the
present matter, the award has been selectively
challenged, thereby discriminating against the
present respondent. This act of selective
challenge, according to learned advocate Mr.
Pandya, amounts to arbitrary and discriminatory
treatment.
7.2. Learned advocate Mr. Pandya further submits
that the production application filed by the
respondent was allowed by the learned Labour
Court, but the same was not complied with by the
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petitioner. Therefore, the learned Court was
justified in drawing an adverse inference against
the petitioner and awarding relief in favour of the
respondent.
7.3. As regards the delay in filing the Reference,
learned advocate Mr. Pandya submits that the
learned Labour Court has already considered the
same and, as a result, has rightly denied the relief
of back wages and continuity of service to the
respondent.
7.4. It is, therefore, submitted that since the learned
Labour Court has passed the award after assigning
detailed and cogent reasons, no interference is
warranted by this Hon’ble Court, and the present
petition deserves to be dismissed.
Findings and Reasons
8. Having considered the submissions advanced by the
learned advocates for the respective parties and
upon perusal of the record and proceedings produced
before this Court, it emerges that the dispute came
to be referred by the learned Commissioner on
24.02.2020 for adjudication of the terms as to
whether the respondent is entitled to reinstatement
from 23.05.2005 and whether the action of the
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petitioner in terminating the service of the
respondent is legal and valid?
8.1. In support of the case, the respondent filed a
statement of claim at Exhibit 4, wherein it was
averred that the respondent was serving on the
post of Ward Servant, Class IV, from 25.09.1994
and was being paid daily wages of ₹50. The
challenge to the alleged termination dated
23.05.2005 was made for the first time through a
demand notice issued on 23.12.2019, i.e., after a
lapse of more than 14 years.
9. The petitioner appeared before the learned Labour
Court and filed a written statement contending that
the respondent had worked only for 89 days during
the year 1994-1995 and had thereafter voluntarily
abandoned the service. Hence, there arises no
question of termination of service. It was further
contended that no steps were taken by the
respondent for a period of 16 years to challenge the
alleged termination, and therefore, the Reference
deserves to be dismissed on the ground of delay and
laches.
9.1. The respondent, however, filed an application
below Exhibit 7 seeking production of wage
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registers and attendance sheets for the period
from 01.01.2000 to 31.12.2005. In response, the
petitioner filed a reply below Exhibit 9, stating that
the records sought were too old and, as per the
guidelines issued by the State Government, such
records are not preserved beyond 10 to 15 years.
9.2. Despite this, the learned Labour Court allowed
the said application vide order dated 12.07.2022,
directing the petitioner to produce the documents
as prayed for. It emerges from the record that,
except for this production application, no other
evidence was adduced before the learned Labour
Court.
9.3. During the cross-examination of the respondent,
no satisfactory explanation was provided for the
inordinate delay of more than 16 years in raising
the dispute. Though the petitioner had contended
that the respondent had worked only for 89 days,
the learned Labour Court disbelieved the said
contention and directed production of
documentary evidence for a period dating back 16
years, which was admittedly not available with the
petitioner.
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10. In this background, the moot question that
arises for consideration is whether the learned
Reference Court was justified in drawing an adverse
inference in favour of the respondent.
11. At this stage, the reference of the decision
rendered by the Apex Court in the various cases is
required to be made hereinunder:
11.1.In the case of Municipal Corporation,
Faridabad v. Siri Niwas, reported in (2004) 8
SCC 195, the Apex Court held that in order to
establish continuous service as defined under
Section 25B of the Industrial Disputes Act, 1947,
the burden lies upon the workman. In the said
case, it was observed that except for examining
himself in support of his contention, the workman
had neither produced any documentary evidence
nor called for the same from the employer’s office.
The Court further observed that even in
proceedings where the provisions of the Indian
Evidence Act apply, the Court may or may not
draw an adverse inference against a party who,
despite being in possession of the best possible
evidence, fails to produce it. It was clarified that
such a presumption is not mandatory and remains
discretionary. The Court must consider the factual
background and surrounding circumstances of the
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dispute. It was also held that where, despite a
specific direction of the Court, the evidence is not
produced, the matter may stand on a different
footing. However, even intentional non-production
may sometimes be justified on reasonable
grounds, and hence, adverse inference cannot be
drawn as a matter of course.
11.2.In the case of Manager, Reserve Bank of
India v. S. Mani and Others, reported in (2005)
5 SCC 100, the Apex Court held that the initial
burden of proof lies on the workman to establish
that he has completed 240 days of continuous
service in the preceding year. The onus does not
shift to the employer merely because the
employer fails to substantiate a defence or takes a
plea of abandonment of service. The Apex Court
further held that the filing of an affidavit by the
workman stating that he had completed 240 days
of continuous service, or that he had made
repeated representations or raised a demand for
reinstatement, would not be sufficient to discharge
the statutory burden of proof cast upon him.
11.3.In the case of R.M. Yellatti v. Assistant
Executive Engineer, reported in (2006) 1 SCC
106, the Apex Court held that while the strict
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provisions of the Evidence Act do not apply to
proceedings under Section 10 of the Industrial
Disputes Act, the general principles of evidence
are nonetheless applicable. It has been
consistently held that the burden of proof lies upon
the workman to establish that he has worked for
240 days in the relevant year. This burden can be
discharged only when the workman enters the
witness box and adduces cogent oral and
documentary evidence. In cases of termination of
daily wage earners, where documentary proof
such as appointment letters or termination orders
are usually absent, the workman is entitled to call
upon the employer to produce records such as
nominal muster rolls, wage registers, attendance
registers, and other relevant documents. However,
the drawing of any adverse inference for non-
production of such records would ultimately
depend on the specific facts of each case. The
judgment further clarifies that mere affidavits or
self-serving statements by the workman are
insufficient to discharge the statutory burden of
proof under Section 25B of the I.D. Act. Moreover,
the mere non-production of muster rolls by the
employer, without any plea or proof of deliberate
suppression by the claimant workman, cannot by
itself be a ground for the Tribunal to draw an
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adverse inference against the employer. The Court
also reiterated the well-established principle that
the High Court, in exercise of its powers under
Article 226 of the Constitution of India, will not
interfere with the concurrent findings of fact
recorded by the Labour Court or Industrial Tribunal
unless such findings are shown to be perverse or
based on no evidence. This exercise too would
depend on the facts and circumstances of each
case.
11.4.If the above principle is applied to the present
case, it clearly emerges that the Reference itself
was filed after an inordinate delay of more than 15
years. The production application filed at Exhibit 7
was duly replied to by the petitioner-employer,
stating that the documents sought by the
respondent were more than a decade old and had
already been disposed of. Furthermore, it was
specifically contended that, as per the available
register, the respondent’s presence during the
year 1994-95 was recorded for only 89 days. The
relevant registers, which formed part of the record
before the learned Labour Court and have also
been placed before this Court through an affidavit
filed by the Under Secretary, Legal Department,
Gandhinagar, suggesting presence of workman in
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each case, which is reproduced hereinbelow:
Sr. Name of LCB Ref. SCA No. Dt. of Dt. of Nos. of
No Employee Appointment Termination days
. worked
1. Dilavarsha 57/2020 SCA/17722/24 25.05.1994 09.01.1995 89
Bhikhusha
Shahmdar
2. Godavariben 14/2020 SCA/730/25 18.05.2003 24.05.2005 412
Muljibhai
Koriya
3. Niruben 66/2020 SCA/740/25 05.10.1994 – 1
Muljibhai
Purabiya
4. Savitaben 35/2020 SCA/752/25 10.06.1997 18.03.1998 92
Babubhai
Parmar
5. Devshi 30/2020 SCA/768/25 01.07.2000 28.04.2005 1234
Gopalbhai
Bariya
6. Nashimaben 26/2020 SCA/784/25 18.09.2003 24.05.2005 284
Ibrahimbhai
Pathan
7. Jashvantiben 29/2020 SCA/786/25 23.05.2003 24.05.2005 434
Parshottambh
ai Rathod
8. Naynaben 25/2020 SCA/801/25 20.06.2003 31.08.2004 306
Chetanbhai
9. Raghuvirsinh 197/2019 SCA/815/25 10.06.1997 31.03.2000 117
Natubha Zala
10. Nilesh 55/2019 SCA/836/25 27.12.1995 11.04.1999 744
Vaghjibhai
Jadav
11. Chandrikaben 94/2020 SCA/860/25 – – Not
Ramjibhai worked
Makwana at all
(NIL)
12. Motiben 36/2020 SCA/971/25 03.06.2000 03.05.2005 794
Ravjibhai
Solanki
13. Shaidaben 34/2020 SCA/973/25 18.01.2004 14.09.2004 68
Ibrahimbhai
Pathan
14. Razak 65/2020 SCA/1015/25 14.05.1998 05.09.1998 32
Fidahusen
Makwa
15. Bhavnaben 198/2019 SCA/1159/25 15.04.2001 08.05.2004 269
Rameshbhai
Zala
16. Bhanuben 28/2020 SCA/1197/25 14.10.2002 22.05.2005 634
Rameshbhai
ParmarPage 13 of 31
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11.5. Admittedly, there was no allegation of
suppression or withholding of any documents with
any ulterior motive. Despite the specific objection
raised by the petitioner before the learned Labour
Court in response to the production application,
stating that the relevant records had already been
destroyed, the learned Labour Court directed the
petitioner to produce the muster rolls for the period
from 01.01.2000 to 31.12.2005. The detail, which is
referred herein above suggests, that some of the
employee did not work at all or worked for very short
period i.e. either one day or 89 days etc. and is
remained controverted by the respondent.
12. In the opinion of this Court, in the absence of
discharge of the onus, which squarely lies on the
workman to prove the case of continuous service, the
learned Labour Court was not justified in shifting the
burden upon the petitioner that too after a lapse of
16 years from the date of the alleged termination.
Before drawing any adverse inference, the learned
Court ought to have considered the facts and
circumstances of the case in proper perspective.
Admittedly, for a period of 16 years, no
communication addressed to the petitioner was
produced before the Court. The only explanation,
offered by the respondent for the delay, was that
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attempts were made, both written and oral, to
communicate with the petitioner; however, no
written representation was placed on record, nor
were there any specific averments regarding to
whom the oral representation was made or whether
the same went unheeded. These essential facts were
not established by the respondent.
13. As per the decision rendered by the Apex Court in
the case of Prabhakar vs. Joint Director,
Sericulture Department and Another, reported in
(2015) 15 SCC 1, it has been held that if the
services of a workman are terminated and he does
not make a demand or raise the issue alleging
wrongful termination immediately or within a
reasonable time, but does so after a considerable
lapse of time, such a dispute cannot be said to be an
“existing dispute.” The Court further observed that
though there is no prescribed period of limitation
under the Industrial Disputes Act, and the right is
conferred upon the workman to raise a dispute even
belatedly, when such a dispute is raised after an
inordinate delay, it is essential to examine whether
the dispute still survives and is in existence. In other
words, notwithstanding the non-applicability of the
Limitation Act, the workman must establish that
there is a dispute in praesenti. To do so, the
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workman must demonstrate that even though there
is considerable delay or laches, such delay has not
extinguished the industrial dispute. If the delay is
such that the dispute no longer remains alive and is
rendered a “dead dispute,” it cannot be treated as an
existing dispute capable of reference.
14. It is contended by the learned advocate Mr.Pandya
that on considering the delay learned Court molded
relief by not granting relief of back wages and
continuity of service. To examine above contention
this Court refers the decision of the Division Bench of
this Court in Letters Patent Appeal No.307 of 2016
wherein the Division Bench has held as under:
“3. Challenging the order of the Labour Court, the
respondent-employer approached this Court by way of
Special Civil Application no.17860 of 2015. The learned
Single Judge mainly on the ground that there is delay
and laches on the part of the appellant-workman and
placing reliance on the judgment of the Hon’ble
Supreme Court on the case of Assistant Engineer,
Rajasthan State Agriculture Marketing Board,
subdivision, Kota v/s Mohan Lal, reported in 2013(14)
SCC 543, has allowed the writ petition of the employer
by setting aside the award.
4. In this appeal, it is contended by learned counsel for
the appellant that the delay attributed was of nine years
by the respondent employer but the learned Single
Judge considered the delay as twenty years and allowed
the petition. It is further submitted that The LimitationPage 16 of 31
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Act, 1963 would not apply to the disputes under the
Industrial Disputes Act. It is further contended that in
any event by applying the ratio laid down by the
Hon’ble Supreme Court in the case of Assistant
Engineer, Rajasthan State Agriculture Marketing Board,
sub-division, Kota (supra), he is entitled for
compensation.
5. It is to be noticed that though it is the case of the
workman that he was discontinued from service on
15.9.1999, the dispute was raised in the year 2008. It is
true that the provisions of Limitation Act, 1963 would
not apply in stricto senso to the disputes under the
Industrial Disputes Act but in the judgment in the case
of Assistant Engineer, Rajasthan State Agriculture
Marketing Board, sub-division, Kota (supra) and further
in the judgment of Prabhakar V/s Joint Director
Sericulture Department, reported in JT 2015(9) SC 83,
the Supreme Court has clearly held that in a case of
unexplained delay and laches on the part of the
workman, the Court shall bear in mind such objection
before grant of relief. It is also to be noticed that there
is a specific case of the petitioner that the petitioner
last worked only upto 1989 and on his own he
discontinued from attending the work. In spite of such
contention, there is no material placed before the
learned Single Judge to show that he has continued in
service after the year 1989. In that view of the matter,
we are of the view that the learned Single Judge rightly
placed reliance on the judgment referred above and
allowed the petition. With regard to the other
submissions made by learned advocate for the appellant
that he may be awarded compensation at least in terms
of the ratio of the laid down in Assistant Engineer,
Rajasthan State Agriculture Marketing Board, sub-
division, Kota (supra), it is to be noticed that in that
set of facts, there was a delay of six years and he has
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admittedly worked from 1.11.1984 to 17.2.1986. In this
case, having regard to the statement made by the
employer before the Labour Court that the petitioner
discontinued from the year 1989 on his own, we are of
the view that this is not a fit case to grant any
compensation also. Granting of compensation instead of
reinstatement is also a matter which depends on various
factors.
6. Having regard to the fact that there is abnormal
delay and laches and the stand of the respondent that
the petitioner discontinued the services on his own
volition in the year 1989, we are of the view that this
is not a fit case to grant compensation also. In view of
the aforesaid and in view of the reasons recorded by
learned Single Judge, this appeal is devoid of merits
and is accordingly dismissed. As the appeal is dismissed,
Civil Application also stands dismissed.”
14.1.In the absence of any cogent explanation for
raising the dispute belatedly, it can be presumed
that the workman has either waived his right or
has acquiesced to the act of termination.
Consequently, if the dispute is raised after an
inordinate delay, it assumes the character of a
stale claim, and the learned Labour Court can hold
that there is no industrial dispute in existence
within the meaning of Section 2(k) of the Industrial
Disputes Act. Accordingly, no relief can be granted
in such a case.
15. In that background, in the considered opinion of
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this Court, the learned Labour Court committed an
error in drawing an adverse inference in favour of the
respondent in the absence of discharge of the burden
to establish continuous service as defined under
Section 25B of the Industrial Disputes Act.
16. The next contention raised by the learned advocate
Mr.Pandya that by accepting the awards in favour of
the similarly situated persons in ten other References
the respondent was discriminated. This Court had
called for an explanation from the Under Secretary,
Legal Department, who, in his affidavit, has stated
that out of 26 References, in 10 References the
concerned workmen had completed more than five
years of service and, therefore, a conscious decision
was taken not to challenge those impugned awards
before this Court. In the considered opinion of this
Court, when in those cases also the workmen had
failed to independently establish the requirements of
Section 25B, the authority could have challenged the
award. However, even if such benefits have been
granted, the question that arises for consideration
before this Court is: in the absence of establishing
any right entitling the claimant to relief, whether this
Court is bound to continue or perpetuate an illegal
order by extending similar relief to other employees
on the ground of equality under Article 14 of the
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Constitution of India?
17. To examine this issue, this Court has referred to the
decision of the Apex Court in Ekta Shakti
Foundation v. Government of NCT of Delhi,
reported in (2006) 10 SCC 337, wherein it was held
that the concept of equality enshrined under Article
14 of the Constitution of India is a positive concept
and cannot be enforced in a negative manner. If any
authority is shown to have committed an illegality or
irregularity in favour of any individual or group,
others cannot claim parity on the ground of denial of
similar illegality or irregularity. Likewise, a wrong
judgment or order in favour of one person does not
confer a right on others to claim the same benefit.
18. While referring to the decision in the case of
Gursharan Singh & Ors. etc. etc. v. New Delhi
Municipal Committee & Ors., reported in (1996) 2
SCC 459, it has been held that citizens have
misconstrued the true scope of Article 14 of the
Constitution of India, which guarantees equality
before the law to all citizens. The Apex Court clarified
that benefits extended to certain individuals in an
irregular or illegal manner cannot be claimed by
others under the guise of equality enshrined in Article
14, by way of a writ petition before the High Court.
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The Court, while rejecting such claims, observed as
under:
“9.Neither Article 14 of the Constitution conceives
within the equality clause this concept nor Article 226
empowers the High Court to enforce such claim of
equality before law. If such claims are enforced, it shall
amount to directing to continue and perpetuate an
illegal procedure or an illegal order for extending
similar benefits to others. Before a claim based on
equality clause is upheld, it must be established by the
petitioner that his claim being just and legal, has been
denied to him, while it has been extended to others and
in this process there has been a discrimination.”
18.1.This Court has also relied upon the decision
rendered by the Apex Court in the case of Vice
Chancellor, M.D. University v. Jahan Singh,
reported in (2007) 5 SCC 77, wherein it has been
held that Article 14 of the Constitution of India
embodies a positive concept of equality and
cannot be invoked to perpetuate or justify
illegalities. The Apex Court clarified that equality
before law does not envisage repetition or
continuation of a wrong merely because a similar
benefit was erroneously extended to someone
else.
18.2.This Court has referred the decision rendered by
the Apex Court in the case of Directorate of Film
Festivals & Ors vs. Gaurav Ashwin Jain & Ors,
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passed in Civil Appeal No.1892 of 2007 wherein
the Apex Court has held as under:
“20.When a grievance of discrimination is made, the
High Court cannot just examine whether someone
similarly situated has been granted a relief or benefit
and then automatically direct grant of such relief or
benefit to the person aggrieved. The High Court has to
first examine whether the petitioner who has
approached the court has established a right, entitling
him to the relief sought on the facts and circumstances
of the case. In the context of such examination, the fact
that some others, who are similarly situated, have been
granted relief which the petitioner is seeking, may be of
some relevance. But where in law, a writ petitioner has
not established a right or is not entitled to relief, the
fact that a similarly situated person has been illegally
granted relief, is not a ground to direct similar relief to
him. That would be enforcing a negative equality by
perpetuation of an illegality which is impermissible in
law. The principle has been stated by this Court in
Chandigarh Administration v. Jagjit Singh [1995 (1) SCC
745] thus :
“Generally speaking, the mere fact that the
respondent-authority has passed a particular order
in the case of another person similarly situated
can never be the ground for issuing a writ in
favour of the petitioner on the plea of
discrimination. The order in favour of the other
person might be legal and valid or it might not
be. That has to be investigated first before it can
be directed to be followed in the case of the
petitioner. If the order in favour of the other
person is found to be contrary to law or not
warranted in the facts and circumstances of his
case, it is obvious that such illegal or
unwarranted order cannot be made the basis ofPage 22 of 31
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issuing a writ compelling the respondent-authority
to repeat the illegality or to pass another
unwarranted order. The extraordinary and
discretionary power of the High Court cannot be
exercised for such a purpose. Merely because the
respondent-authority has passed one
illegal/unwarranted order, it does not entitle the
High Court to compel the authority to repeat that
illegality over again and again. The
illegal/unwarranted action must be corrected, if it
can be done according to law – indeed, wherever
it is possible, the Court should direct the
appropriate authority to correct such wrong orders
in accordance with law – but even if it cannot be
corrected, it is difficult to see how it can be made
a basis for its repetition. By refusing to direct the
respondent-authority to repeat the illegality, the
Court is not condoning the earlier illegal act/order
nor can such illegal order constitute the basis for
a legitimate complaint of discrimination. Giving
effect to such pleas would be prejudicial to the
interests of law and will do incalculable mischief
to public interest. It will be a negation of law and
the rule of law. Of course, if in case the order in
favour of the other person is found to be a lawful
and justified one it can be followed and a similar
relief can be given to the petitioner if it is found
that the petitioners’ case is similar to the other
persons’ case. But then why examine another
person’s case in his absence rather than
examining the case of the petitioner who is
present before the Court and seeking the relief. Is
it not more appropriate and convenient to
examine the entitlement of the petitioner before
the Court to the relief asked for in the facts and
circumstances of his case than to enquire into the
correctness of the order made or action taken in
another person’s case, which other person is notPage 23 of 31
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before the case nor is his case. In our considered
opinion, such a course – barring exceptional
situations – would neither be advisable nor
desirable. In other words, the High Court cannot
ignore the law and the well-accepted norms
governing the writ jurisdiction and say that
because in one case a particular order has been
passed or a similar action has been taken, the
same must be repeated irrespective of the fact
whether such an order or action is contrary to
law or otherwise. Each case must be decided on
its own merits, factual and legal, in accordance
with relevant legal principles.”
In Gursharan Singh v. New Delhi Municipal
Committee [1996 (2) SCC 459], this Court observed :
“There appears to be some confusion in respect of
the scope of Article 14 of the Constitution which
guarantees equality before law to all citizens. This
guarantee of equality before law is a positive
concept and it cannot be enforced by a citizen or
court in a negative manner. To put it in other
words, if an illegality or irregularity has been
committed in favour of any individual or a group
of individuals, others cannot invoke the
jurisdiction of the High Court or of this Court,
that the same irregularity or illegality be
committed by the State \005.. so far such
petitioners are concerned, on the reasoning that
they have been denied the benefits which have
been extended to others although in an irregular
or illegal manner. Such petitioners can question
the validity of orders which are said to have been
passed in favour of persons who were not entitled
to the same, but they cannot claim orders which
are not sanctioned by law in their favour on
principle of equality before law. Neither Article 14Page 24 of 31
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of the Constitution conceives within the equality
clause this concept nor Article 226 empowers the
High Court to enforce such claim of equality
before law. If such claims are enforced, it shall
amount to directing to continue and perpetuated
an illegal procedure or an illegal order for
extending similar benefits to others. Before a
claim based on equality clause is upheld, it must
be established by the petitioner that his claim
being just and legal, has been denied to him,
while it has been extended to others and in the
process there has been a discrimination.”
18.3.In the case of State Of Bihar & Ors vs
Kameshwar Prasad Singh & Anr, reported in
AIR (2000) SC 2306 the Apex Court has held as
under:
“30.The concept of equality as envisaged under Article
14 of the Constitution is a positive concept which
cannot be enforced in a negative manner. When any
authority is shown to have committed any illegality or
irregularity in favour of any individual or group of
individuals other cannot claim the same illegality or
irregularity on ground of denial thereof to them.
Similarly wrong judgment passed in favour of one
individual does not entitle others to claim similar
benefits. In this regard this Court in Gursharan Singh v.
NDMC, (1996) 2 SCC 459 : (1996 AIR SCW 749 : AIR
1996 SC 1175) held that citizens have assumed wrong
notions regarding the scope of Article 14 of the
Constitution which guarantees equality before law to all
citizens. Benefits extended to some persons in an
irregular or illegal manner cannot be claimed by a
citizen on the plea of equality as enshrined in Article
14 of the Constitution by way of writ petition filed inPage 25 of 31
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the High Court. The Court observed (Para 9) :
“Neither Article 14 of the Constitution conceives within
the equality clause this concept nor Article 226
empowers the High Court to enforce such claim of
equality before law. If such claims are enforced, it shall
amount to directing to continue and perpetuate an
illegal procedure or an illegal order for extending
similar benefits to others. Before a claim based on
equality clause is upheld, it must be established by the
petitioner that his claim being just and legal, has been
denied to him, while it has been extended to others and
in this process there has been a discrimination.”
Again in Secretary, Jaipur Development Authority,
Jaipur v. Daulat Mal Jain, (1997) 1 SCC 35 this Court
considered the scope of Article 14 of the Constitution
and reiterated its earlier position regarding the concept
of equality holding :
“Suffice it to hold that the illegal allotment founded
upon ultra vires and illegal policy of allotment made to
some other persons wrongly, would not form a legal
premise to ensure it to the respondent or to repeat or
perpetuate such illegal order, nor could it be legalised.
In other words, judicial process cannot be abused to
perpetuate the illegalities. Thus considered, we hold
that the High Court was clearly in error in directing the
appellants to allot the land to the respondents.”
In State of Haryana v. Ram Kumar Mann,(1997) 3 SCC
321:(1997 AIR SCW 1574) this Court observed (Para 3) :
“The doctrine of discrimination is founded upon
existence of an enforceable right. He was discriminated
and denied equality as some similarly situated persons
had been given the same relief. Article 14 would apply
only when invidious discrimination is meted out toPage 26 of 31
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equals and similarly circumstanced without any rational
basis or relationship in that behalf. The respondent has
no right, whatsoever and cannot be given the relief
wrongly given to them, i.e., benefit of withdrawal of
resignation. The High Court was wholly wrong in
reaching the conclusion that there was invidious
discrimination. If we cannot allow a wrong to
perpetrate, an employee, after committing
misappropriation of money, is dismissed from service
and subsequently that order is withdrawn and he is
reinstated into the service. Can a similarly
circumstanced person claim equality under Section 14
for reinstatement? The answer is obviously “No”. In a
converse case, in the first instance, one may be wrong
but the wrong order cannot be the foundation for
claiming equality for enforcement of the same order. As
stated earlier, his right must be founded upon
enforceable right to entitle him to the equality
treatment for enforcement thereof. A wrong decision by
the Government does not give a right to enforce the
wrong order and claim parity or equality. Two wrongs
can never make a right.”
31.In view of our finding that the judgment of the High
Court in the case of Brij Bihari Prasad Singh being
contrary to law was not sustainable and liable to be
dismissed, the impugned judgment in the case of
Kameshwar Prasad Singh‘s case cannot be upheld. The
aforesaid respondent is, therefore, not entitled to any
relief as prayed for by him on the analogy of the
judgments passed and directions given in Brij Bihari
Prasad Singh‘s case.”
19. The High Court cannot ignore the law in the well-
accepted norms governing the writ jurisdiction, nor
can it hold that merely because a similar award was
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accepted in another case, the same course must be
repeated, irrespective of whether such order or
action is contrary to law or otherwise. Before
examining the issue of discrimination, the Court must
first ascertain whether the respondent approaching
the Court has established a legal right. As held in the
above-referred decisions, equality under Article 14 of
the Constitution of India is a positive concept and
cannot be enforced in a negative manner. If the order
in favour of another person is found to be contrary to
law or unwarranted in the facts and circumstances of
that case, such illegal or unwarranted orders cannot
be made the basis for issuing a writ compelling the
authority to repeat the illegality or to pass another
unwarranted order. The extraordinary and
discretionary powers of this Court cannot be
exercised for such a purpose.
19.1.Merely because the authority has once passed
an illegal order, which may have been accepted, it
does not entitle the High Court to compel the
authority to repeat the illegality again and again.
Any illegal or unwarranted action must be
corrected in the first instance. Even if, on an
earlier occasion, a wrong order was passed, the
same cannot be made the foundation for claiming
equality for its enforcement. As observed earlier,
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the right to claim equal treatment must be
founded upon an enforceable legal right. A wrong
decision does not create a right to enforce another
wrong order or to claim parity. Two wrongs can
never make a right.
20. The learned Labour Court, while granting the relief
of reinstatement, observed that as there were 240
vacant posts in Class IV, an order of reinstatement
would serve the ends of justice. This Court has
referred to the decision rendered by the Apex Court
in State of Himachal Pradesh v. Suresh Kumar
Verma, reported in (1996) 7 SCC 562, wherein a
three-Judge Bench of the Apex Court held that a
person appointed on a daily-wage basis is not an
appointee to a post in accordance with the rules.
21. In the considered opinion of this Court, if directions
are given to re-engage a person in any other work or
to appoint them against existing vacancies, the
judicial process would become another mode of
recruitment de hors the rules. Appointments are
required to be made in accordance with the doctrine
of public employment, and in such circumstances, it
would not be proper to direct reinstatement of the
employee.
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22. With regard to the contention of violation of
Sections 25G and 25H of the I.D. Act, it emerges from
contention of the petitioner, which remained
unchallenged by the respondent before the labour
Court, the respondent themselves had abandoned
the service, as per the testimony of the petitioner’s
witness. Admittedly, no evidence was adduced by the
respondent to substantiate the alleged violation of
Sections 25G and 25H of the I.D. Act. The learned
Labour Court recorded that, since the petitioner did
not maintain the seniority list, the principle of “last
in, first out” had not been followed. However, the
Apex Court, in Surendranagar District Panchayat
v. Dahyabhai Amarsinh, reported in 2006 (2) GLR
1014, has held that in the absence of regular
appointment of the workman, the employer is not
expected to maintain a seniority list of employees
engaged on a daily-wage basis. In the absence of any
proof by the respondent regarding the existence of a
seniority list and his alleged seniority, no relief can
be granted for non-compliance with Sections 25G and
25H of the I.D. Act. The option to draw an adverse
inference against the employer is available only
when the existence of a seniority list is proved and
the same is then not produced before the Court. For
the Court to draw an inference adverse to a party, it
must be satisfied that such evidence was in
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existence and could have been proved. On this count
also, the impugned award suffers from infirmity.
23. Considering the over all circumstances, impugned
award deserves interference and these petitions
require to be allowed.
24. Resultantly, the present petitions are allowed. The
impugned award passed by the learned Labour Court,
whereby the petitioner was directed to reinstate the
respondent to his original post, is hereby quashed
and set aside. Rule is made absolute accordingly.
Sd/-
(M. K. THAKKER,J)
M.M.MIRZA
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