Chattisgarh High Court

State Of Chhattisgarh And Ors vs Devendra Kumar Verma And Ors on 7 June, 2021

                                               1


                                                                                  NAFR
                   HIGH COURT OF CHHATTISGARH AT BILASPUR

                                WP(L) No. 4685 of 2010
        1. State of Chhattisgarh through Chief Engineer, Mahanadi Godavari
           Kachhar, Water resources Department, Raipur Chhattisgarh.
        2. The Deputy Director Hydrometeorology Division No. 4., Raipur
           Chhattisgarh.
        3. The Sub Divisional Officer, No. 14 Mahanadi Godavari Kacchar,
           Sub Division Bilaspur.
                                                                        ---- Petitioner
                                            Versus
        1. Devendra Kumar Verma, S/o Late Shri Pyarelal Verma, R/o -Village
           Bhiloni, Post -Tohda, Thana -Nevra, Tahsil -tilda, District Raipur
           Chhattisgarh.
        2. The presiding Officer, Labour Court Bilaspur Chhattisgarh
                                                                  ---Respondent

     For Petitioner             :         Ms. Akanksha Jain, Dy. G.A.
     For Respondents            :         Mr. S. P. Kale, Advocate.


                          Hon'ble Shri Justice P. Sam Koshy

                                        Order on Board

07/06/2021

1. Aggrieved by the order passed by the Labour Court Bilaspur

01.05.2010 in case No, 56/I.D.A./2009 (Ref.), the present writ

petition has been filed.

2. Vide the impugned award, the Learned Labour Court Bilaspur has

answered the reference in the affirmative holding that the

discontinuance of service of the respondent- worker by the

petitioner were in violation of Chapter V of the Industrial Dispute Act

and while allowing the reference has ordered for reinstatement

without back wages.

3. The writ petition is of the year 2010 and we are taking up the writ

petition in the year 2021, neither the petitioner/State Government

nor the counsel for the respondents-worker has been able to make

a categorical statement that respondent-worker has been reinstated

in service or not. The initial order-sheet of this Court would show

that there was an interim order in favour of the State subject to their

complying with the provision of Section 17B of the Industrial

Disputes Act 1947 and which according to the learned counsel for

the State is being complied with.

4. The admitted factual position as it stands from the evidence led by

the either party, the respondent-worker was engaged as a daily

wage employee continuously for the period between 15.06.1990 to

31.01.2000. The services of the respondent-worker was abruptly

discontinued w.e.f. 01.02.2000.

5. Another admitted factual position as would be evident from the

evidences of the witness on behalf of the petitioners-State before

the Labour Court is that before discontinuing the service of the

respondent-worker, no prior notice or salary in lieu of notice paid to

the worker. Similarly, the witness of the State before the Labour

Court has also admitted the fact that before the discontinuance was

made, no retrenchment compensation whatsoever was paid, though

the witness subsequently says that it was later on paid, but there

was no evidence to this effect before the Labour Court. The witness

of the State has also accepted the fact that he was not aware

whether the principle of "last come first go" was followed before

discontinuing the service of the worker.

6. Further from the evidences of the parties before the Court, it also

stands established that after the State Government had initially

taken a decision to discontinue the daily wage employees, they had

themselves thereafter taken a policy decision to reengaged those

daily wages workers who were discontinued in the past. The finding

of the Labour Court also shows that as per the memo of the

Executive Engineer of Public works Department Division No. 1

Bilaspur, there were sanctioned vacant posts available, there were

also availability of work for daily wage workers. Inspite of all this, the

Petitioners/State did not either take back the respondent-worker in

service nor were they given any preferential rights or treatment to

be reengaged.

7. Given the aforesaid factual admitted position as is proved from the

evidences given by either side, the issue now to be considered is,

can the said finding of fact held to be a perverse finding or a finding

contrary to the evidence on record ?.

8. On perusal of pleadings and the contentions put forth by the

petitioners and taking note of the finding of the Labour Court, this

Court has no hesitation in reaching to the conclusion that the finding

arrived at by the Labour Court is a finding of fact based upon the

evidence both oral and documentary that has been brought before

the Labour Court by either side. There is nothing on record by which

it can be said that the finding is a perverse finding or contrary to the

evidences on record. Thus, the scope of interference to a finding of

fact gets reduced to the minimal.

9. One has also to appreciate the fact that this Court while entertaining

the writ petition under Article 226 of the constitution of India does not

sit as an Appellate Authority over the finding of a Labour Court. The

right conferred upon this Court is only to the extent of verifying

whether there has been an excess of jurisdiction or any perversity

on the part of the Labour Court while deciding the matter in the

course of passing of the impugned award. No such grounds strong

enough have been made out by the petitioner calling for an

interference to the award passed by the Labour Court.

10.It is settled position of law that this court while exercising the power

of judicial review under Article 226 of the Constitution of India and

while testing the veracity of an order passed by the Labour Court,

the High Court would not sit as an appellate court. It is also settled

position of law that the High Court would not threadbare consider

the entire evidence that has been adduced before the Labour Court

and reach to a different conclusion which again is impermissible.

11. The scope of interference exercising the power of judicial review by

the High Court is only in the event if the finding of the Labour Court

is a perverse finding or is one which is contrary to the evidence

which has come on record.

12. In para 17 of (2014) 7 Supreme Court Cases, 190 (Hari Nandan

Prasad and Another vs. Employer I/R to Management of Food

Corporation of India & Another), it has been held as under:-

"17........At the time of their disengagement even when they had continuous service for more than 240 days (in fact about 3 years) they were not given any notice or pay in lieu of notice as well as retrenchment compensation. Thus, the mandatory precondition of retrenchment I paying the aforesaid dues in accordance with Section 25-F of the ID Act was not complied with. That is sufficient to render the termination as illegal. Even the High Court in the impugned judgment has accepted this position and there was no quarrel on this aspect before us as well......"

13.Applying the same analogy and again reiterating the same in the

case of (2014) 7 Supreme Court Cases 177 (Bharat Sanchar

Nigam Limited vs. Bhurumal), it has been held in paragraph- 27

as under:-

"27.....In any case, the award is passed on the basis that the respondent had worked for 240 days in the preceding 12 months' period prior to his termination and therefore it is a clear case of violation of Section 25-F of the Industrial Disputes Act. The termination is, thus, rightly held to be illegal. We do not find any perversity in this outcome."

14.The Supreme Court in the case of "Harjinder Singh v. Punjab

State Warehousing Corpn." reported in (2010) 3 SCC 192, in

paragraph 21 held as under:-

"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and /or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and others similar legislative instruments are social welfare legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of

material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:

10. .... The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.' (A.I.R 1958 SC 923 [State of Mysore v. Workers of Gold Mines, AIR p.928, para 10.]"

15. This view has further been reiterated in the case of "Bhuvnesh

Kumar Dwivedi v. Hindalco Industries Limited" reported in (2014)

11 SCC 85.

16.As regards the contentions of the State Counsel so far as granting

of lump sum compensation in lieu of reinstatement and the

judgments relied upon by the State in this regard, this Court is of the

opinion that those judgments can not be applied in the factual back-

drop of this case for two reasons; firstly, for the reason that the State

Government itself is not in a position to say as to whether the

respondent-worker has been reinstated or not, they are still in doubt.

Secondly, the cases referred to and relied by the Petitioners/State

are those where the worker involved in a dispute had worked for a