Chattisgarh High Court

State Of Chhattisgarh vs Hemlal on 9 June, 2021

                                                1


                                                                                     NAFR
                    HIGH COURT OF CHHATTISGARH AT BILASPUR
                                     WPL No. 97 of 2012

             State Of Chhattisgarh, through Divisional Forest Officer, Forest Division
             (Territorial), Khairagarh District Rajnandgaon, (C.G.)

                                                                           ---- Petitioner

                                             Versus

             Hemlal, S/o Rambharosa Verma R/o Village and Post Dhara, Tahsil
             Dongargarh, District Rajnandgaon (CG)

                                                                         ---- Respondent

     For State/Petitioner                :      Ms. Sunita Jain, GA
     For Respondent/s                    :      Mr. F. S. Khare, Advocate


                           Hon'ble Shri Justice P. Sam Koshy
                                    Order on Board


09/06/2021

1. Aggrieved by the award dated 09.11.2011, pronounced on 05.01.2012 in

case no. 202/IDA/Reference/2008 the present writ petition has been filed.

Vide the impugned award the learned labour Court has awarded

reinstatement with 50% backwages.

2. The facts in brief is that as per the respondent worker he was engaged as

daily wage worker by the petitioners in 1991 and worker discontinued to

work under the petitioners for a period of about 14 years till June, 2014

when his services were abruptly discontinued in total contravention to the

provisions of the Industrial Disputes Act, particularly the provisions of

Chapter V of the Industrial Disputes Act. The discontinuance from service

by the petitioners was challenged by the respondent worker by raising the

industrial dispute under the provisions of Industrial disputes Act and State

Government in the year 2008 made a reference to the labour Court,

Rajnandgaon for answering the reference where the case was registered

as 202/IDA/Reference/2008. After either side before the labour Court

submitted their claim and written statement, it was ordered for giving

evidence on either side. The worker got himself examined and in support of

his contention he has also got examined another witness namely, Itwari

Ram Baghav. Thereafter the petitioner State as the second party before the

labour Court was asked to lead evidence. However, no evidence

whatsoever was led by the employer State before the labour Court and

finally matter was heard on merits with available records and evidences

adduced by the worker and relying upon the evidences learned labour

Court has passed the impugned award of reinstatement with 50%

backwages. It is this award which is under challenge.

3. According to the petitioner the finding of fact of labour Court is bad in law

for the reason that worker in the instant case is failed to prove his case by

leading cogent and material documentary proof in respect of firstly his

employment with the petitioner and secondly his having worked

continuously for a period of more than 240 days in a calender year

preceding his discontinuance. It was also the contention of the State that

even otherwise since the worker was substantially a daily wage worker and

on each date his employment stood discontinued till he was engaged on

the next day. The awarding of 50% backwages is therefore, unreasonable

and is without any basis whatsoever. It was also the contention of the

petitinoer that even otherwise granting of backwages ought to have been

rejected only on the ground of no work no pay. Thus, order of reinstatement

as also granting of 50% backwages deserves to be interfered with.

4. Per contra, Mr. F. S. Khare appearing for the worker submits that it is a

case where the evidence led by the worker supported by the statement of

another witness namely Itwari Ram Baghav has gone unrebutted before

the labour Court inasmuch as, in spite of opportunity, no evidence has

been led by the petitioner employer before the labour Court. Thus, the

evidence of the worker has been accepted by the labour Court and has

given finding of fact. According to the counsel for the worker since the

award is finding of fact the scope of interference is minimal for this Court to

interfere and that the petitioners have not made out the case of perverse

finding of or excess of jurisdiction by the labour Court in deciding the

matter under which this Court can interfere with the award.

5. It was further contention of the Mr. Khare that immediately after the

impugned award was pronounced on 05.01.2012 the State authorities have

complied with the award and have reinstated the worker on 23.01.2012

and since then he has been continuously working. According to Mr. Khare

he has not put in more than 10 years of service after reinstatement, equity

also therefore goes in favour of the worker and impugned award does not

warrant any interference including that of reinstatement as according to the

counsel for the worker he has been deliberately deprived of any work

during the said period, therefore the Court below was justified in granting

backwages.

6. Having heard the contentions put forth on either side and on perusal of

record admittedly from the pleading it appears that respondent worker has

worked under the petitioner for a period between 1991 to 2014 i.e.

approximately 14 years, thereafter, he was discontinued. Before

discontinuance of his services, there is not proof of any compensation,

show cause notice or any notice of discontinuance or salary in lieu of

notice issued to the worker. The worker has also not been paid any

retrenchment compensation before discontinuance. Coupled with the

aforesaid factual matrix the award also shows that the in spite of the

opportunity being given to the employer State authorities have also not led

any evidence before the labour Court to substantiate their contentions.

Thus, there is not evidence in rebuttal to the evidence led by the worker.

7. As regards the scope of interference it is by now well settled proposition of

law that High Court under Article 226 would not be sitting over under

Industrial Disputes Act as the Appellate Court. The High Court also would

not conduct a thread bear enquiry to test the finding of facts arrived at by

the labour Court while exercising the Writ Jurisdiction. The Scope of judicial

review against the award of the labour Court is confined to finding which is

perverse, a finding which is in excess of jurisdiction and a finding which is

contrary to the evidence on record. In the instant case in the absence of

any evidence by the petitioner before the labour Court, none of the grounds

of perversity or excess of jurisdiction or a finding being in contravention to

the evidence is made out.

8. 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.

9. 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......"

10. 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."

11. 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.]"

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

Dwivedi v. Hindalco Industries Limited" reported in (2014) 11 SCC 85.

13. Given the fact, this Court does not find any strong case made out calling

for an interference with the order of reinstatement by the labour Court.

However, from the pleadings and the evidence which has been led by the

worker before the labour Court, there is no dispute that he was engaged by

the petitioner as daily wage worker. The status of a daily wage worker is

that of getting employment on daily wage basis and in the evening after the

day's work is over, the employment stands automatically discontinued till he

is engaged on the next day, if there is availability of work. The worker has

not been appointed or engaged in accordance with any statutory scheme

applicable in the petitioners establishment. The work of a daily wager is