Orissa High Court
M/S. B.B. Kar vs Sri Panchanan Pradhan And Another on 29 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7209 of 2013
M/s. B.B. Kar, Contractor .... Petitioner
Establishment
-versus-
Sri Panchanan Pradhan and another .... Opposite Parties
Advocates appeared in these cases:
For Petitioner : Mr. Ajay Ku. Roy,
Advocate
For Opposite Parties : Mr. Rajjeet Roy,
Advocate for O.P. No.1
Mr. N.K. Mishra,
Senior Advocate for O.P. No.2
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K. PATTANAIK
JUDGMENT
29.07.2022
Dr. S. Muralidhar, CJ.
1. The Petitioner challenges an Award dated 12th October 2012
passed by the Labour Court, Bhubaneswar in Industrial Disputes
Case No.31 of 2005.
2. It must be noted at the outset that there are two Opposite Parties
in the present petition. Opposite Party No.1 is the Workman and
Opposite Party No.2 is M/s Paradeep Phosphates Limited (PPL)
where the Workman was engaged.
3. The background facts are that the Petitioner is a contractor
establishment and is registered under the Contract Labour
(Regulation and Abolition) Act, 1970 (CLRA Act). PPL is
registered under the Companies Act. PPL issued a work order in
favour of the Petitioner for supply of Pay Loader Drivers in 1996.
This was renewed from time to time up to 2002. Since the need
did not continue, no work order thereafter was issued to the
Petitioner.
4. It is pointed out by the Petitioner that the period of services of
the contract workers engaged by the Petitioner was co-terminus
with the contract period. It is pointed out that all disputes and
differences including conditions of service of the contract
labourers during the entire tenure of their engagement by the
Petitioner under Opposite Party No.2 i.e., PPL was governed by
the provisions of the CLRA Act.
5. According to the Petitioner, the Workman all of a sudden
absconded from duty from 3rd July 2000 till December 2000
without any prior intimation or information. It was not possible
for PPL to indefinitely wait for the Workman to return to work. It
accordingly claimed that the services of the Workman came to an
end and he too accepted this. The Workman accepted the full and
final settlement in December, 2000. Subsequently, on 20th
December 2003, nearly three years thereafter, the Workman raised
an industrial dispute alleging refusal of employment with effect
from 10th July, 2002. After conciliation efforts failed, the matter
was referred to the Labour Court, Bhubaneswar.
6. According to the learned counsel for the Petitioner, Opposite
Party No.1-Workman did not work between July and December
2000 on account of an involvement in criminal proceedings and
therefore, he was not entitled to the relief claimed.
7. It was submitted that the Labour Court should not have, in the
face of such unimpeachable evidence, ordered reinstatement of
the Workman. Rather than the Petitioner refusing employment to
the Workman, he had in fact misconducted himself in terms of
Rule 12 (o) of the Orissa CLRA Rules, 1975. In terms of Clause-5
of the said Rules, the services of Opposite Party No.1-Workman
were automatically terminable.
8. Appearing for the Workman, learned counsel Mr. Roy
defended the impugned Award of the Labour Court and pointed
out that the Labour Court was justified in directing his
reinstatement with compensation. It did not call for any
interference.
9. It must be mentioned here that a separate affidavit has been
filed on 18th July 2022 by PPL (Opposite Party No.2) wherein in
para 7, it is averred as under:
"7. That the period of Contract of the Opp. Party No.2
with the Petitioner expired in 2002 because of lack of
further requirement. The service of all contract
workers engaged by the Petitioner was co-terminable
on the expiry of the Contract period and all disputes
and differences of such contract labourers are
governed under the provisions of the Contract Labour
(Regulation and Abolition) Act, 1970 and not under
the Industrial Disputes Act, 1947. Law is well settled
that the Principal Employer is not a party to any
dispute between the Contractor and its contract
labourers."
10. This Court has perused the impugned Award in light of the
documents on record and the submissions of learned counsel for
the parties. The fact of the matter is that Opposite Party No.1-
Workman was involved in the case of theft for which Paradeep
Police Station Case No.66 of 2000 was registered against him
under Section 379 IPC. On 6th July 2000, the Workman was
released on bail. Even assuming that his absence from 2nd July
2000, up to 6th July 2000 was explained by the above events, the
fact of the matter is that the Workman did not report for duty
thereafter. The Labour Court simply went on the basis that a
domestic inquiry ought to have been held against the Workman
for his unauthorized absence from duty. There is nothing on
record to show that the Workman in fact reported for duty. He
does not appear to have returned to the Management saying that
he was in fact reporting for duty and he had been refused to be
offered employment. The Labour Court could not have presumed
therefore that "refusal of employment of the Workman with effect
from 10th July 2000 amounts to termination of his service." The
burden was on the Workman to show that the Management had
refused employment. With the Management in its written
statement clearly pointing out that it had not refused employment
and that it is the Workman who abandoned his service, the burden
shifted to the Workman to show that in fact the Management
refused to take him back when he reported the duty. In particular,
it was incumbent on the Workman to show that after being
released on bail on 6th July 2000, he actually reported for duty.
11. The procedure for termination of services is indicated in Rule
12 of the Orissa CLRA Rules. Under Rule 12 (2) (g) "Habitual
neglect of work or habitual negligence" and under Clause-(m) of
the said Rule "Habitual late attendance" would be treated as
misconduct. Importantly, under Rule 12 (5) "If a Workman
absents himself for more than 5 continuous working days without
leave application of making a representation to the contractor and
without sufficient cause, his services shall be liable to termination
without notice." The Labour Court despite noticing Rule 12, did
not bestow attention on Rule 12 (5) particularly since there was no
application for leave made by the Workman. It is evident that he
was absent for more than five continuous days without
permission. He did not even make any representation.
Consequently, the finding of the Labour Court that there was an
illegal termination of the services of the Workman in violation of
Section 25-F of the ID Act is based on no evidence whatsoever.
12. For all of the aforementioned reasons, the impugned Award is
hereby set aside. The writ petition is allowed. But, in the
circumstances, with no order as to costs.
(S. Muralidhar)
Chief Justice
(R.K. Pattanaik)
Judge
S.K.Guin/ P.A.
