State Of Chhattisgarh And Ors vs Motidas And Anr
2022 Latest Caselaw 4066 Chatt

                                                                         NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                       WPL No. 292 of 2014

  1. State Of Chhattisgarh, Through Secretary, Water Resources
     Department, Mahanadi Bhawan, Naya Mantralaya, Naya Raipur, PS
     Mandir Hasaud Raipur C.G.

  2. The Executive Engineer, Hasdev Barrage Water Management
     Division, Rampur, PS Korba, Distt. Korba C.G.

  3. The Sub Divisional Officer, Hasdev Barrage No. 05 Jarve Rbc, Distt.
     Janjgir - Champa C.G.

                                                                ---- Petitioners

                                  Versus

  1. Motidas S/o Shri Cheduram, Aged About 36 Years R/o House No. 150
     Atal Awas, M.P. Nagar, Distt. Korba C.G.

  2. The Presiding Officer Labour Court, Korba, PS Korba, Distt. Korba
     C.G.

                                                            ---- Respondents

_____________________________________________________________ For Petitioners/State : Ms. Ruchi Nagar, Dy.G.A. For Respondent No.1 : Mr. Vinod Deshmukh, Advocate

Hon'ble Shri Justice Arvind Singh Chandel Order On Board

28/06/2022

1. Challenging in this writ petition is to the award dated 25.04.2014 (pronounced on 30.05.2014) passed by the Labour Court, Korba in case No.05/I.D.Act/2013/Reference, whereby learned Labour Court allowed the claim of respondent/workman and directed his reinstatement without back wages.

2. Ms. Ruchi Nagar, learned Deputy Government Advocate for the petitioners/State would submit that award passed by Labour Court is illegal. Labour Court has not considered the ground of delay raised by petitioner for filing of claim after 14 years from the date of his removal from service. She also submits that merely working of a workman for 240 days or more in itself will not grant him permanent status when respondent/workman was engaged as daily wage employee. As he was not having permanent status, there was no occasion for respondent to grant the notice pay as provided under Section 25-F of the Industrial Disputes Act, 1947 (in short 'Act of 1947').

3. Per contra, Mr. Vinod Deshmukh, learned counsel for respondent/workman would submit that respondent/workman was engaged as daily wage employee on 01.01.1982 and continuously worked upto 1993 with petitioner/ Department. Learned Labour Court considered continuous engagement of respondent/workman with petitioner/ Department more than 240 days in a preceding 12 months, based on evidence has rightly allowed the claim, directed for his reinstatement. He submits that considering period of delay in filing application, Labour Court has not awarded back wages. It is contended that after passing of the award, respondent/workman was reengaged by petitioner/ Department on 01.10.2014 and since then he is continuously working and for this reason also, impugned award be not interfered with. In the year 1995 along with petitioner, number of daily wage employees working with petitioner/Department, were disengaged who also approached the Labour Court with delay of 12, 13 and 14 years, Labour Court allowed their claim, which was put to challenge by the petitioner before this Court, one of which is Writ Petition (L) No. 155 of 2013. The writ petitions were dismissed and all other daily wagers who have been reinstated after passing of the award by Labour Court, they have now been regularized in the Department in pursuance to the circular issued by State Government on 05.03.2008. He submits that as in the evidence, witness of petitioner has accepted continuous engagement of respondent/workman with petitioner/Department since 01.01.1982 upto 1993, therefore, there is no error in finding recorded by the Labour Court.

4. I have heard learned counsel appearing for the parties and perused the documents placed along with the writ petition.

5. From the pleadings in writ petition, particularly pleadings in paragraph 8.8 of writ petition, petitioner/employer has not challenged the finding recorded by Labour Court of engagement of respondent/workman for more than 240 days in preceding 12 months on the ground of any perversity in finding recorded by Labour Court, but it was pleaded that merely working of a daily wage employee for more than 240 days will not grant him the status of permanent employee. Section 25B of the Act of 1947 defines continuous service, which reads as under:-

"25B. Definition of continuous service.- For the purposes of this Chapter,-- (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer--

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--

(i) ninety- five days, in the case of a workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case.

Explanation.-- For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which--

(i) he has been laid- off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]"

6. In view of pleadings made in the writ petition, provision under Section 25B of the Act of 1947 and finding recorded by learned Labour Court, considering the evidence of witness of petitioner, by name, H.C. Singh wherein said witness in categorical terms admitted the engagement of respondent/ workman since 1982 till 1993. There is no infirmity or illegality in finding recorded by learned Labour Court that respondent No.1 was in continuous service as he has completed more than 240 days in preceding 12 months. Section 25-F of the Act of 1947 envisages conditions precedent to retrenchment of workmen. The petitioner was in continuous service as defined under Section 25B of the Act of 1947, hence, without complying with the pre-conditions for retrenchment of workman under Section 25F of the Act of 1947, the petitioner could not have retrenched the respondent/workman from service. No evidence was brought on record by the petitioner showing compliance of Section 25F of the Act of 1947, hence, there was non- compliance of mandatory provisions under Section 25 of the Act of 1947 and the retrenchment of workmen was illegal.

7. Hon'ble Supreme Court in case of Hari Nandan Prasad and Another v. Employer I/R to Management of Food Corporation of India and Another reported in (2014) 7 SCC 190 while considering the effect of non-compliance of provisions under Section 25F of the Act of 1947 has held as under :

"17. This issue hardly poses any problem. The admitted facts are that both the appellants had worked for more than 240 days continuously preceding their disengagement/termination. 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 in paying the aforesaid dues in accordance with Section 25-F of the I.D. 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. With this, we advert to the issue of relief which should be granted in such cases, as that was the topic of hot debate before us as well."

8. Hon'ble Supreme Court in case of Bharat Sanchar Nigam Limited v. Bhurumal reported in (2014) 7 SCC 177 reiterating the same law, has held as under :

"27. There may be some dispute as to whether respondent in fact worked for 15 years. The appellant may be correct that observations of the learned Single Judge in this behalf, namely, that it was an undisputed fact, are incorrect. However, nothing turns on this as the outcome is not dependent on this aspect. The fact remains that the respondent had produced some other documents to show that he had been working for quite some time. He had categorically asserted that he worked from July 1987. The case of the appellant before the CGIT was not that the respondent did not work for 15 years but worked for lesser period. On the contrary, the stand of the appellant was that of complete denial, namely that the respondent never worked with the appellant at all. Once, that stand is proved to be false, there is no reason to interfere with the findings of CGIT. In any case, the award is passed on the basis that the respondent had worked for 240 days in 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."

9. Second ground raised by learned counsel for petitioner with regard to delay in filing application, specific period of limitation is not prescribed for approaching workman before the competent authority. The workmen are the poor illiterate persons who are working on daily wages. they may not be aware with regard to rights provided to them under the law. The Act of 1947 is a social welfare legislation and it is required to be interpreted keeping in view the goals set out in preamble of the Constitution of India and provisions contained in Part- IV thereof under Articles 38, 39(a) to (e), 43 and 43(A). The workman approached the Labour Commissioner by way of filing application under Section 10 of the Act of 1947. Learned Commissioner upon hearing the parties, referred the dispute to Labour Court, and thereafter, Labour Court passed the impugned order.

10. Hon'ble Supreme Court in case of State of Mysore v. The Workers of Gold Mines reported in AIR 1958 SC 923 (V 45 C 130) has held as under :

"10. It is, however, urged by Mr. Sanyal, for the appellant, that the appellant's industry is a wasting industry and it needs special consideration. Search for new ore which is essential for the prosperity and longevity of this industry is its special feature and the interests of the industry itself require that proper and adequate provision for prospecting new ore must be made before the workmen's, claim for bonus can be awarded. Similarly, a larger provision may have to be made for depreciation or rehabilitation because of the special needs of this industry. It may be conceded that this industry has some special needs of its own; but it cannot be denied that the principles of social justice on which a claim for bonus is founded apply as much to this industry as to others. Social and economic justice have been given a place of pride in our Constitution and one of the directive principles of State policy enshrined in Art.38 requires that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political shall inform all the institutions of national life. Besides, Art.43 enunciates another directive principle by providing that the State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. 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 a welfare state. It is on this concept of social justice that the formula in question has been founded and experience in the matter of industrial adjudication shows that, on the whole, the formula has attained a fair amount of success. It is true that in industrial adjudication purely technical and legalistic considerations which are apt to lead to rigidity or inflexibility would not always be appropriate; nor is it desirable to allow purely theoretical or academic considerations unrelated to facts to influence industrial adjudication. In its attempt to do social justice, industrial adjudication has to adjust rival claims of the employer and his workmen in a fair and just manner and this object can best be achieved by dealing with each problem as it arises on its own facts and circumstances. Experience has shown that the formula in question is, in its application, elastic enough to meet the requirements of individual cases, and so we do not think that the appellant has made out a case for any addition to the existing categories of prior charges. It is clear that the amounts which can be admitted under the said existing categories would have to be determined in the light of the evidence adduced by the employer and having regard to the special requirements of the employer's industry. In the present case the special features of the appellant's industry on which Mr. Sanyal relies would have to be taken into account in determining the amounts which could be included either under depreciation or under rehabilitation. That is the approach adopted by the tribunal in the present case and we do not think that any complaint can be validly made against it."

11. In case of Ajaib Singh v. Sirhind Cooperative MarketingCum- Processing Service Society Limited and Another reported in (1999) 6 SCC 82, Hon'ble Supreme Court while considering the issue of delay in filing application of reference by workman held as under :

"5. Before appreciating the rival contentions urged on behalf of the parties, it has to be noticed as to under what circumstances the act was enacted and what were the objectives sought to be achieved by its legislation. It cannot be disputed that the act was brought on the statute-book with the object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the patties. It is a piece of legislation providing and regulating the service conditions of the workers. The object of the Act is to improve the service conditions of industrial labour so as to provide for them the ordinary amenities of life and by the process, to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity.

The prosperity of the country in its turn, helps to improve the conditions of labour [Hindustan Antibiotics Ltd v. The Workman, AIR (1967) SC 948]. The Act is intended not only to make provision for investigation and settlement of industrial disputes but also to serve industrial peace so that it may result in more production and improve the national economy. In the present socio-political economic system, it is intended to achieve co-operation between the capital and labour which has been deemed to be essential for maintenance of increased production and industrial peace. The Act provides to ensure fair terms to workman and to prevent disputes between the employer and the employees so that the large interests of the public may not suffer. The provisions of the Act have to be interpreted in a manner which advances the object of the Legislature contemplated in the statement of Objects and Reasons. While interpreting different provisions of the Act attempt should be made to avoid industrial unrest, secure industrial peace and to provide machinery to secure the end. Conciliation is the most important and desirable way to secure that end. In dealing with industrial disputes, the courts have always, emphasized the doctrine of social justice, which is founded on basic ideal of socio-economic equality as enshrined in the Preamble of our Constitution. While construing the provisions of the Act, the courts have to give them a construction which should help in achieving the object of the Act.

6. The history of the legislation with respect to the industrial disputes would show that for the first time in the year 1920 the Trade Disputes Act was enacted which provided for courts of Inquiry and Conciliation Boards and forbade strikes in public utility service without a statutory notice in writing. The Act did not make provision for any machinery for setting of industrial disputes. The said Act was repealed and replaced by the Trade Disputes Act, 1929 which started the state intervention in the settlement of industrial disputes and armed the Government with the power which could be used whenever considered fit to intervene in industrial disputes. This Act was amended in the year 1938 authorising the Central and Provincial Governments to appoint conciliation officers for mediating in or promoting the settlement of industrial disputes. Shortly thereafter the Government of India promulgated the Defence of India Rules to meet the exigency created by the Second World War. Rule 81-A gave powers to the Government to intervene in industrial disputes and was intended to provide speedy remedies for industrial disputes by referring them compulsorily to conciliation or adjudication by making the awards legally binding on the parties and by prohibiting strikes or lock-outs during the pendency of the conciliation or adjudication proceedings. The Industrial Employment (Standing Orders) Act, 1946 was enacted which made provision for framing and certifying of standing orders covering various aspects of service conditions in the industry. The Industrial Disputes Bill was introduced in the Central Legislative Assembly on 8.10.1945 which embodied the essential principles of Rule 81- A of the Defence of India Rules and also certain provisions of Trade Disputes Act, 1929 concerning industrial disputes. The Bill was passed by the Assembly in March 1947 and became the law w.e.f. 1.4.1947. The present Act was enacted with the objects as referred to hereinabove and provided machinery and forum for the investigation of industrial disputes, their settlement for purposes of analogous and incidental thereto. The emergence of the concept of welfare state implies an end to the exploitation of workman and as a corollary to that collective bargaining came into its own. The Legislature had intended to protect workmen against victimisation and exploitation by the employer and to ensure termination of industrial disputes in a peaceful manner. The object of the Act, therefore, is to give succour to weaker sections of the society which is a prerequisite for a welfare State. To ensure industrial peace and pre-empt industrial tension, the Act further aims at enhancing the industrial production which is acknowledged to be the lifeblood of a developing society. The Act provides a machinery for investigation and settlement of industrial disputes ignoring the legal technicalities with a view to avoid delays, by specially authorised courts which are not supposed to deny the relief on account of the procedural wrangles. The Act contemplates realistic and effective negotiations, conciliation and adjudication as per the need of society keeping in view the fast- changing social norms of the developing country like India. It appears to us that the High Court has adopted a casual approach in deciding the matter apparently ignoring the purpose, aim and object of the Act.

10. ........

We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 33-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the legislature in its wisdom had thought if fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act."

12.Considering the finding recorded by learned Labour Court and relying upon the dictum of Hon'ble Supreme Court in aforementioned cases, I do not find any infirmity in the finding recorded by Labour Court on the delay also.

13.One another aspect of the case which is not disputed by the counsel for petitioner that, after passing of an order by Labour Court, respondent/workman was taken back in service and till date, he is continuously working i.e. since last more than 10 years.

14. For the foregoing reasons, I do not find any tenable ground to interfere with the impugned award. The writ petition being sans merit, is liable to be and is hereby dismissed.

Sd/-

(Arvind Singh Chandel) Judge Shubham