Hemant Sakhre And 79 Ors vs Managing Director,Jyoti ...
2021 Latest Caselaw 1742 Chatt

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                                                              NAFR
    HIGH COURT OF CHHATTISGARH, BILASPUR
                W.P.(227) No. 3142 of 2009

              Order Reserved on 13.07.2021
             Order Delivered on 12.08.2021

1. Hemant Sakhre, S/o. Dev Das Sakhre, aged 40 years

2. Asha Ram Yadav, S/o Late Dashrath Yadav, aged 50 years.

3. Ghanshyam Nandeshwar, S/o Budhaji Nandeshwar, aged 50 years

4. Bhagat Dewangan, S/o Shri Lakhanlal, aged 35 years

5. Bhagirathi Sahu, S/o Budhwari Sahu, aged 32 years.

6. Santosh Sahu, S/o Latel Sahu, aged 30 years

7. Kanhaiyalal Banjare S/o Bhikai Banjare, aged 40 years

8. Nareendra Sahu, S/o Girdharilal Sahu, aged 32 years

9. Hullan Kumar Sinha, S/o Mangeshwar Prasad, aged 30 years

10. Indraraj Niware, S/o Ishulal Niware, aged 28 years

11. Ravi Kumar, S/o Harilal, aged 40 years

12. Surendra Kumar, S/o Late Ramlal Verma, aged 39 years

13. Santosh Verma, S/o Hriday Ram, aged 35 years

14. Naresh Kumar Sahu, S/o Bhakla Ram Sahu, aged 36 years

15. Asha Ram Sahu, S/o Hiralal Sahu, aged 35 years

16. Parmeshwar Sahu, S/o Awadhram Sahu, aged 30 years

17. Narottam Sahu, S/o Late Daulal Sahu, aged 32 years

18. Jageshwar Sahu, S/o Pardeshi Ram, aged 40 years

19. Firturam Sahu, S/o Jhumuklal Sahu, aged 45 years

20. Salik Nishad, S/o Gopal Nishad, aged 45 years

21. Virendra Son, S/o Parasram Son, aged 32 years

22. Satish Kumar, S/o Bhuwanlal, aged 30 years

23. D. Ramesh, S/o Venkat Rao, aged 40 years
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24. Ramsheela Sahu, W/o Suresh Sashu, aged 32 years

25. Teejbati Sahu, W/o Pyarelal, aged 40 years

26. Dev Kumari, W/o Lakhan Sahu, aged 39 years

27. Man Bai Yadav, W/o Manteer Yadav, aged 40 years

28. Amritlal Ghosh, S/o Umeshchandra Bose, aged 39 years

29. B. Tamma Rao, S/o B. Suryarao, aged 40 years

30. K. Laxman Rao, S/o K. Chinnawadu, aged 39 years

31. B. Venkatraman, S/o Suryanarayan Rao, aged 38 years

32. Bharat Das, S/o Washnav/Bhukhan Das, aged 39 years

33. Rakesh Pande, S/o Ganesh Dutt Pande, aged 37 years

34. Upendra Kumar Verma, S/o Badri Prasad, aged 38 years

35. Hiralal Kaushal, S/o Late Dhannuram, aged 40 years

36. Sitaram Nishad, S/o Dukhitram, aged 40 years

37. Manharan Sahu, S/o Kamal Prasad Sahu, aged 37 years

38. Rameshwar Yadav, S/o Bhuwanram Yadav, aged 39 years

39. Dhananjay Bansode, S/o Khoobchand Bansode, aged 37 years

40. Shankarlal Sahu, S/o Punitram Sahu, aged 39 years

41. Raghunath Tiwari, S/o Sopal Tiwari, aged 45 years

42. Suresh Kumar Wasnik, S/o Sadhuram, aged 35 years

43. Purshottam Verma, S/o Dayaram, aged 39 years

44. Arun Kumar Sahu, S/o Bhagatram Sahu, aged 35 years

45. Harish Dongre, S/o Bhaiyalal Dongre, aged 40 years

46. Chamru Sinha, S/o Gendlal Sinha, aged 38 years

47. P. Diwakar Rao, S/o P.V. Satyanarayan, aged 50 years

48. Jagguram S/o Ratiram Dhivar, aged 45 years

49. Lokeshwar Sahu, S/o Firatram Sahu, aged 38 years

50. Kuleshwar Sahu, S/o Firatram Sahu, aged 37 years

51. Kamlesh Verma, S/o Prahlad Verma, aged 39 years

52. Vinod Kumar Soni, S/o Gulabchand, aged 35 years
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53. Rajendra Kumar Patel, S/o Kumar Patel, aged 37 years

54. Rajkumar Patel, S/o Kumar Patel, aged 36 years

55. Vyas Narayan Thakur, S/o Pitambar, aged 45 years

56. Balram Sahu, S/o Neelkanth Sahu, aged 36 years

57. Ram Kumar Sahu, S/o Radheshyam, aged 40 years

58. Tulsiram Sahu, S/o Jeevanram Sahu, aged 45 years

59. Kaushal Verma, S/o Kishan Verma, aged 35 years

60. Shreeram Yadav, S/o Lakhanlal Yadav, aged 41 years

61. Radheshyam Kaushal, S/o Buddhu, aged 45 years

62. Jawahar Verma, S/o Asharam, aged 36 years

63. Guljarilal Sahu, S/o Mannulal, aged 35 years

64. Kalyan Singh Verma, S/o Trivawanadh, aged 50 years

65. Rajkumar Sen, S/o Rampyare, aged 45 years

66. Tomnath Sahu, S/o Rameshwar Sahu, aged 29 years

67. Bahal Netam, S/o Budhram, aged 50 years

68. Liladhar, S/o Seekharam, aged 40 years

69. Rajendra Udiwade, S/o Budhram, aged 37 years

70. Bhushanlal Sahu, S/o Rameshwar Sahu, aged 39 years

71. Mohan Pillai, S/o Acchutan Pillai, aged 50 years

72. Dev Singh Verma, S/o Garha Ram Verma, aged 38 years

73. Manharan Sahu, S/o Siyaram Sahu, aged 39 years

74. Nemu Yadav, S/o Ashok Yadav, aged 36 years

75. Ramesh Kumar Verma, S/o Kashiram Verma, aged 40 years

76. Rajuram Sahu, S/o Manauram Sahu, aged 38 years

77. Shatrughan Dhruw, S/o Bisauharam, aged 39 years

78. Dinesh Thakur, S/o Bishnath Sahu, aged 39 years

79. Ramji Sahu, S/o Hirauram Sahu, aged 39 years

80. Mansharam, S/o Shiv Prasad, aged 35 years
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            (All through Hemant Sakhre, Near Pragati School, Bada Ashok
         Nagar, P.O. Sarora, Distt. Raipur (Chhattisgarh)

                                                                 ---- Petitioners
                                    Versus
      Managing Director, Jyoti Structures Limited, Urla Industrial Area, Sarora,
      Raipur (Chhattisgarh)
                                                                 ---- Respondent

For the Petitioners : Shri Sanjay Agrawal, Advocate.

For the Respondent : None.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV ORDER

Heard.

1. This petition has been brought under Article 227 of the Constitution of

India praying to quash the order of the State Industrial Court, Raipur dated

23.10.2008 and direct the respondent to reinstate the petitioners with full

back-wages and other benefits.

2. The facts of the case are these, that the petitioners were employed as

workers of the respondent for about 10 to 12 years working in various

departments of the Company. The respondent without giving any charge-

sheet and without giving any notice, has terminated the services of the

petitioners on 2.1.2006 regarding which, no compensation has been paid to

the petitioners. The petitioners then challenged the order of the termination

before the Labour Court. The Labour Court vide order dated 7.6.2008 has

dismissed the prayer of the petitioners, holding that the petitioners were not

the employees of the respondent and some of the petitioners before the

Labour Court are employed elsewhere. The appeal preferred before the

State Industrial Board, Raipur, has been dismissed by the impugned order

dated 23.10.2008.

3. It is submitted by the counsel for the petitioners that the order of the

Labour Court dated 7.6.2008 is a non-speaking order. Similarly, the order of

the Industrial Court has also been passed without assigning proper reasons,

therefore, both the orders are erroneous and liable to set aside. It is very

clear that the services of the petitioners were illegally terminated on

2.1.2006. Learned Courts below had erroneously held that the application of

the petitioners is barred by limitation. The facts clearly establish that the

petitioners were engaged through the contractor and they had been working

for the respondent since last 10 to 12 years. The facts present are sufficient

to hold that the petitioners were employees of the respondent and by not

doing the same, learned Courts below have committed error in passing the

orders.

Reliance has been placed on the judgments of this Court in the case

of Vimal Kumar Thawait vs. Presiding Officer, Industrial Court and Ors.

reported in 2017(5) CGLJ 375, in the case of The Managing Director vs.

Chandu Lal Sahu and Ors. in W.P. No. 3959 of 2006 decided on 4.10.2019

and in the case of Pragatisheel Engineering Shramik Sangh Industrial

Estate vs. Simplex Castings Ltd. and Ors. in W.A. No. 470 of 2016

decided on 13.9.2019. Hence, it is prayed that the relief be granted to the

petitioners.

4. The respondent is unrepresented on the date of hearing, however,

return has been filed in which the averments of the petitioners' side have

been opposed.

5. Considered the submissions. The respondent had clearly denied in

his reply to the application before the Labour Court that the petitioners were

in his employment since 10 to 12 years, therefore, the petitioners have no

right to file any application against the respondent. It was also pleaded that

the application filed is time-barred. Learned Labour Court has conducted the

enquiry and given a finding on the basis of the evidence that the petitioners

were not the employees of the respondent. It was also held that with respect

to some of the applicants, the application was barred by limitation. Learned

Appellate Court has also held similarly and dismissed the appeal by the

impugned order.

6. Heard counsel for the petitioners and perused the documents present

on record.

7. It was held by the Division Bench of this Court in W.A. No. 470 of 2016

(Pragatisheel Engineering Shramik Sangh Industrial Estate vs. Simplex

Castings Ltd. And Ors.) decided on 13.9.2019, which is observed in

paragraph 22 is as follows :

'22. For deciding the question whether the termination of service was correct or justified, it was quite fundamental for the Workmen-Union to have pleaded and proved that the worker named was engaged as an employee by the Respondents- Management. Unless the Employee- Employer relationship was established by raising specific pleadings and adducing evidence

in support thereof, it was not possible for the Industrial Court to have answered the question whether the termination of such an employee by the Managements was correct and justified or not. Once the Workmen-Union satisfies the burden as to the Employee- Employer relationship and that the workman was a person who was entitled to have protection under the statute, the burden will shift to the Management to justify their action in the matter of termination. It is in the said background, that the necessity to have continuous service of 240 days in the preceding 12 months, in accordance with relevant provisions of the statute, was also subjected to scrutiny by the Industrial Court with reference to the pleadings and evidence on record, which came to be answered against the Workmen-Union, for having failed to discharge the burden in this regard. If only the burden was discharged from the part of the Workmen-Union in this regard and the action of Management was held as wrong and illegal, would arise the next question as to the relief to be granted i.e., whether the workers should be ordered to be reinstated and the consequential benefits, if any, or whether the workers were entitled for such other benefits including payment of compensation. The Workmen-Union having failed to cross the first hurdle, it was not correct or proper for them to have contended that the 'burden of proof' was upon the Respondents- Managements to prove a 'negative fact' with regard to the contents as contended in their written statement.'

8. In this case, the finding of the Labour Court is based on evidence. All

the petitioners were not the employees of the respondent and some of them

were employed by the contractor. It has been held by the Labour Court that

Ex.-D/2, which is filed regarding the Employee Provident Fund shows that

petitioners No.1, 2, 4, 7, 9, 10, 12, 17, 23, 28, 35, 36, 37, 38, 39, 41, 42, 45,

46, 48, 49, 52, 59, 63, 64, 68, 69, 71, 75 and 80 have left the service on

various dates mentioned in the given order of the year 2002-03. It is also

mentioned that petitioners No.6, 29, 31 and 43 have been re-employed in

Unique Structural and Power Limited regarding which, document Ex.D/1 is

produced which is the letter from Employees State Insurance. Similarly,

Ex.D/2 produced from the office of Employee Provident Fund, Raipur

mentions that there had been no contribution of the above-mentioned

petitioners for the year 2005-06, on this basis, it was held that the petitioners

above-mentioned were not in employment of the respondent beyond the

year 2003-04. Therefore, the application that has been filed in the year 2006

is barred by limitation under Section 62 of the Chhattisgarh Industrial

Relations Act, 1960.

9. It has been further held on the basis of the evidence brought on record

that petitioners No. 3, 8, 14, 15, 16, 18, 19, 20, 21, 24, 25, 26, 27, 30, 32, 33,

34, 40, 44, 50, 51, 53, 54, 55, 55, 56, 57, 58, 61, 65, 66, 67, 73, 74, 78 and

79 were never employed by the respondent or employed for the respondent

through any contractor and regarding the employment of these petitioners

there is no evidence led by the petitioners' side. Therefore, it was held that

there is no relationship of these petitioners with the respondent. There is

another finding of the Labour Court that petitioners No. 1, 2, 4, 7, 9, 10, 12,

17, 23, 28, 35, 36, 37, 38, 39, 41, 42, 45, 46, 48, 49, 52, 59, 63, 64, 68, 69,

71, 75 and 80 were employed by the contractor and thus, they were not

directly employed by the respondent. There is no evidence to show,

regarding petitioners No. 5, 11, 13, 22, 47, 72 and 76 being employed either

by the respondent or by any contractor for the respondent.

10. The finding of fact mentioned in paragraphs herein-above has been

upheld by the Appellate Court. This Court cannot sit as an appellate Court to

re-appreciate the evidence and reverse the finding of the Court below. This

Court has limited jurisdiction under Article 227 of the Constitution of India in

view of the law laid down by the Supreme Court in the case of Surya Dev

Rai vs. Ram Chander Rai reported in 2003(6) SCC 675 and in the case of

Mohd. Yunus vs. Mohd. Mustaqim and Ors., reported in 1983 (4) SCC

566, in which it has been held that the supervisory jurisdiction conferred on

the High Courts under Article 227 of the Constitution is limited "to see that an

inferior Court or Tribunal functions within the limits of its authority", and not to

correct an error apparent on the face of the record, much less an error of

law.

11. It is a case of clear denial by the respondent that the petitioners were

employed by it, therefore, it was the burden of the petitioners to bring

evidence in that respect whereas, the evidence that has been brought on

record contrary to the claim made by the petitioners' side. Although, the

finding that has been given regarding the application being barred by

limitation is not with respect to all the petitioners, but it is with respect to the

petitioners who had been in the employment of the respondent and their

services have not continued beyond the year 2004. Therefore, the finding of

the Labour Court firstly, for the petitioners who were employees of the

respondent, that their application is time-barred and for the petitioners who

were not employees of the respondent does not suffer from any infirmity.

Therefore, I do not find any substance in the petition. The impugned order

and the orders cannot be interfered with. The petition is dismissed and

disposed off.

12. The petition is dismissed.

Sd/-

(Rajendra Chandra Singh Samant) Judge Nimmi