Chattisgarh High Court

State Of Chhattisgarh And Anr vs Shri Ram Kumar And Anr on 13 September, 2021

                                              1




                                                                                NAFR
                    HIGH COURT OF CHHATTISGARH AT BILASPUR
                                    WP(L) No. 115 of 2013
        1. State of Chhattisgarh through the Secretary, Department of Water
             Resources, Mahanadi Bhawan, Mantralaya, Raipur (CG)

             (The petitioner no.1 was not a party before the learned Labour Court
             but has been impleaded as petitioner no.1 in the instant petition as the
             proper course is to implead the State Government through the
             Secretary of the concerned department)

        2. The Executive Engineer, Water Resources Department, Chhuikhadan,
             P.S.Chhuikhadan, District Rajnandgaon (CG)

                                                                     ---- Petitioners
                                           Versus
        1. Shri Ram Kumar S/o Suberam Gadariya, R/o Village Kaudiya, Post
             Dewaribhath, PS Khairagarh, Tahsil Khairagarh, District Rajnadngaon
             (CG)

        2. The Labour Court Rajnandgaon, District Rajnandgaon, Chhattisgarh

                                                                 ---Respondent

For Petitioners : Ms. Sunita Jain, Govt. Advocate For Respondent : Mr. Abhishek Sharma, Advocate.

Hon'ble Shri Justice P. Sam Koshy Order on Board 13/09/2021

1. Aggrieved by the award dated 09.10.2012 the present writ petition has

been filed. The said award was pronounced on 10.12.2012 in Case

No. 219/I.D.Act/Reference/2011. Vide the impugned award, the

Labour Court has granted the relief of reinstatement without back

wages in favour of the respondent-worker.

2. Pursuant to the award the respondent-worker has been taken back in

service w.e.f. 22.01.2013 and since then the worker has been

continuously working with the respondents. As per the records

available, as per the pleadings and also as per the award of the

Labour Court, the case of the respondent-worker was that he was

engaged by the department of the petitioners establishment between

04.05.1998 to 29.06.2007 and the respondent-worker had worked for a

period of around 9 years. Thereafter, the services of the worker

abruptly discontinued w.e.f. 30.06.2007. However, at the time of

discontinuance, the worker was neither issued a show cause notice

nor any salary in lieu of notice or was he paid any retrenchment

compensation at that point of time. The respondent-worker

immediately raised a dispute before the concerned labour department

which was referred to the Labour Court where the matter was

registered as Case No. 219/I.D.Act/Reference/2011. After the

pleadings were complete and the evidences were recorded, the

Labour Court vide its award dated 09.10.2012 answered the reference

in favour of the respondent-worker and granted the relief of

reinstatement without back wages. Subsequent to the award of the

Labour Court, the worker has been reinstated in service w.e.f.

22.01.2013 and by now he has been put more than 8 years of

continuous service. Thus, if the previous period of service is counted

with the present period which the petitioner has worked, the total

number of service rendered by the worker is almost 17-18 years.

3. The challenge to the award by the petitioners is on the basis of the

evidence given by the witnesses of the Department before the Labour

Court. According to the petitioners, the witnesses had categorically

denied the employment of the worker at any point of time and they had

also made a statement that the department did not have a system of

engaging daily wage workers and the works were executed by the

department by awarding contract after the tenders were finalized.

4. The contention of the respondent-worker is that the award is a finding

of fact and there is hardly any scope of interference. Secondly, it is

contended that since the worker has already put in more than 8 ½

years of service after his reinstatement and he has also crossed the

age of 50 years, it would not be proper to interfere with the award

particularly when at this stage the worker would find it difficult in

getting a different employment else where.

5. 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. The department also has not produced

any documentary evidence before the Labour Court to substantiate

their contentions. 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.

6. 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.

7. 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.

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.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. Secondly, the cases referred to and relied by the

Petitioners/State are those where the worker involved in a dispute had

worked for a very few period of time as compared to the greater period

of time he has remained out of employment. In the instant case, on the

contrary, admittedly the worker had put in continuous 9 years of