Shishir Kumar Mukherjee vs Management Of Bata Shoe Store
2023 Latest Caselaw 4065 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No. 533 of 2015
                        ........
Shishir Kumar Mukherjee, S/o Late Banapada Mukherjee
                                          ...   ...   ...    Appellant
                        Versus
Management of Bata Shoe Store, Lower Bazar Branch, Main Road
under P.O. G.P.O., P.S. Kotwali, Ranchi through its Manager
                                    ...    ...    ...Respondent(s)
CORAM:         SRI SANJAYA KUMAR MISHRA, C.J.
               SRI ANANDA SEN, J.

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For the Appellant(s) : Mr. Ashok Kumar Pandey, Advocate For the Respondent(s) : Mr. Dhirendra Kumar Deo, Advocate

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14/ Dated: 30.10.2023

Upon hearing the learned counsel for the parties, this Court

passed the following. (Per Ananda Sen, J.)

2. This Court vide order dated 28.08.2023 on the prayer of the

learned counsel for the appellant directed the respondent to seek

instruction as to whether any monetary compensation can be awarded

to the appellant or not. In course of hearing today, the learned counsel

for the respondent submits that though he had intimated the aforesaid

fact to the higher authorities of the respondent, but the respondent

has not communicated any instruction to him thus he prays that the

appeal be heard on merits.

3. This intra court appeal is at the instance of the writ petitioner, is

against the judgment of the learned Single Judge dated 07.08.2015

passed in W.P.(L) No.3253 of 2007.

4. The learned counsel appearing on behalf of the appellant

submits that the appellant had served the respondent for a long

period, but the learned Single Judge has not taken into consideration

the tenure which he had worked under the respondent. He argues that

the Shop Manager was authorized/ entitled to appoint workman

considering the nature of work load. The appellant-petitioner was

engaged by the shop manager and paid remuneration from the funds

of the respondent, though there was no regular appointment letter.

Since the petitioner had worked for a long period under the

respondent, he could not have been removed from his service, rather

he should have been regularized on his post. This aspect of the

matter has not been taken into consideration by the learned Single

Judge.

5. After hearing the parties, we find that the writ application was

filed by the appellant challenging the award passed by the learned

Presiding Officer, Labour Court, Ranchi in Reference Case No.3 of

2004. This workman was admittedly engaged by the Shop Manager of

M/s Bata Shoe Store as a Peon and was designated as Shop

Assistant and he was terminated on 04.07.1994. An industrial dispute

was raised and award was passed on 12.11.1998 in Reference Case

No.15 of 1996 whereby termination was declared illegal. The

respondent was directed to reinstate the petitioner with full back

wages from the date of termination. The said award was challenged

by the Management of Bata Shoe Store in writ application under

Article 226 of the Constitution being C.W.J.C. No.2411 of 1999 (R),

which was dismissed on 21.03.2001. The Letters Patent Appeal filed

against the said order dated 21.03.2001 also stood dismissed.

Thereafter, the petitioner was permitted to join on the said post. The

petitioner claimed regularization. As the conciliation failed, the dispute

was referred for adjudication vide Notification dated 24.03.2004. The

terms of reference was as follows:-

"Whether not to regularize the services of Shri Shishir Kumar Mukherjee, shop Assistant, M/s Bata Shoe Store, Lower Bazar, Main Road, Ranchi is justified? If yes, then since when & what other relief he is entitled to?"

6. Before the learned Tribunal witnesses were examined. The

workman was examined and he admitted that he was appointed on a

temporary post. He was not appointed through the selection process.

He admitted that no advertisement was issued prior to his

appointment, rather he was appointed by the Shop Manager. The

Labour Court after considering the evidence, has arrived at the

conclusion that the concerned workman is not entitled for

regularization. Para 9 of the award (internal page at 9), the learned

Tribunal has held regarding the procedure for appointment in Bata

Shoe Company to the effect that appointment should be confirmed by

the General Manager, Personnel and Administration of the Company.

The learned Tribunal has also held that the name of the petitioner was

not sponsored by the Employment Exchange nor that his appointment

was made against an existing vacant post, rather this workman has

admitted before the learned Tribunal that he had not made any

application with respect to his employment. The workman while

deposing as a witness before the learned Tribunal has admitted that

he was verbally appointed by one D.K. Shrivastava, the Shop

Manager. The workman could not produce any document to

substantiate that the Shop Manager had the authority to appoint any

person against any vacant post. The Management witness 2 has

categorically stated that the Shop Manager does not have any

authority or power to appoint any person. The learned Tribunal in last

sub-para of para 9, on the basis of evidence led, had arrived at the

conclusion that the workman has not brought forth any substantial

material on record to support his claim that he has a right and he is

entitled for regularization.

7. On the issue of payment of salary is concerned, the learned

Tribunal, based on the evidence of the parties, has held that it is an

admitted case that the workman was not a permanent employee,

rather he was an adhoc employee. The learned Tribunal has also

found that the workman was paid wages, which is prescribed under

the Bihar Shops and Establishments Act. The learned Tribunal, thus,

came to a conclusion that since the petitioner was not a permanent

employee, therefore, he cannot claim wages at par with the regular

employee.

8. All these facts have been taken note of by the learned Single

Judge while dismissing the writ petition. The Court exercising

jurisdiction under Article 226 of the Constitution, does not sit in an

appeal, while deciding the validity of award passed by the learned

Court. The scope is limited.

9. In the instant case, there is no procedural lapse nor there is any

perversity in the award. We also find no illegality or irregularity in the

impugned judgment passed by the learned Single Judge.

10. Accordingly, the instant Letters Patent Appeal stands

dismissed.

(Sanjaya Kumar Mishra, C.J.)

(Ananda Sen, J.) R.S.