Chattisgarh High Court

State Of Chhattisgarh vs Sita Ram Tandkar on 11 June, 2021

                                             1


                                                                                 NAFR
                   HIGH COURT OF CHHATTISGARH AT BILASPUR
                                    WPL No. 96 of 2012

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

                                                                     ---- Petitioner

                                        -Versus-

     Sita Ram Tandkar, S/o. Narottam, Resident & Post Dhara, Tahsil
     Dongargarh, District Rajnandgaon (CG)

                                                                    ---- Respondent

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


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

11/06/2021

     1.      Aggrieved   by   the    award   dated    16.11.2011,   pronounced    on

05.01.2012 in case no. 197/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 1990 and

worker discontinued to work under the petitioners for a period of

about 14 years till 2004 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

197/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 has

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 petitioner 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 now put in about 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 1990 to 2004 i.e. approximately 14 years, thereafter, he

was discontinued. Before discontinuance of his services, there is

no 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