M/S. Arun Udyog vs The Presiding Officer
2023 Latest Caselaw 12168 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                       W.P.(C) No. 1989 OF 2020

M/s. Arun Udyog                             ....                 Petitioner

                                -versus-

The Presiding Officer, CGIT-                ....        Opposite Parties
Cum-Labour Court,
Bhubaneswar and others

Learned advocates appeared in this case:

For petitioner                   : Mr. P. K. Chand, Advocate
For opposite parties             : Mr. S. K. Pattanaik, Senior Advocate
                                  (for opposite party no.2)

CORAM:
                         JUSTICE ARINDAM SINHA
                         JUSTICE SIBO SANKAR MISHRA

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              Date of hearing and judgment: 9th October, 2023
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ARINDAM SINHA, J.

1. Mr. Chand, learned advocate appears on behalf of petitioner

(management). He submits, impugned is award dated 4th September,

2019 made by the Central Government Industrial Tribunal (CGIT).

Challenge to the award is twofold. Firstly, opposite party no.2 is not a

workman within meaning of clause (s) in section 2, Industrial Disputes

// 2 //

Act, 1947. Without prejudice the second point is, said opposite party

was not in continuous service for being given the benefit by

compliance of provision in section 25-F.

2. He draws attention to the appointment letter dated 20 th June,

1986. Text of the letter is reproduced below.

<You are hereby appointed as Incharge of Kathpal Chromite Mines with a Consolidated salary of Rs.550/- (Rupees five hundred fifty) only per month.

This order will take effect from the date you actually assume the charge.=

It was clearly stated in the appointment letter that opposite party no.2

was appointed as In-charge. He was to discharge function in an

administrative capacity.

3. Mr. Chand then takes us to deposition in cross-examination of

opposite party no.2, recorded on 5th December, 2017. Relied upon

passage in the deposition is reproduced below.

<... ... ... Beside the work as mentioned in Para-3 of my statement of claim I was also doing supervisory work of road works done in the mining area. I was supervising the physical labour done by the labourers. I and three others were taking the

WP(C) no.1989 of 2020 // 3 //

attendance of the labourers in the site. I was also submitting report with regard to the work completed during each day. I was disbursing wage, wage slip of the labourers engaged in the site.=

(emphasis supplied)

In the context he points out from finding under issue nos.1 and 2 that it

be held as perverse.

4. On the second ground Mr. Chand draws attention to finding in

impugned order under issue no.3. He relies upon a passage from the

award, reproduced below.

"... ... ... If the oral testimony of the disputant is taken into consideration along with Exts.1,2,3 and Ext.C (which is filed by the Management) it is emerging that the disputant was working under the Management No.2 in the year 1981 before he was appointed and posted as Kathapal Mines in-charge under Ext.3. The Ext.D, which is filed by the Management No.2 appears to be the dispute raised by the 2nd Party at the first instance before the Labour Machinery in regard to non-payment of his wages and bonus in between financial year 1980-1981 to 1985-1986. From this piece of document it can be inferred that the disputant was in employment of the Management No.1 from the year 1981. Had he not

WP(C) no.1989 of 2020 // 4 //

been under employment of 1st Party Management during the period 1981 to 1986 he could not have raised such dispute before the Labour Machinery.

Therefore, it can be safely held that the disputant was in employment of 1st Party Management No.1 from the year 1981 and he seems to have worked more than 240 days in each calendar year till he was alleged either to have been refused employment or voluntarily abandoned his employment in the year 1987.= (emphasis supplied)

He submits, the workman was to demonstrate continuous service. His

client could not have been called upon to show otherwise. There be

interference with impugned award as it is on perverse findings leading

to direction for compensation in lieu of reinstatement and back wages

assessed at Rs.10,00,000/-.

5. Mr. Pattanaik, learned senior advocate appears on behalf of

opposite party no.2 (workman) and submits, so far as issue regarding

his client being a workman is concerned, there can be no doubt he

was. His deposition in cross-examination, relied upon by petitioner,

clearly shows he was doing supervisory job having been appointed to

get salary of Rs.550/- per month, below the threshold, making him a

workman within meaning of clause (s) of definitions section 2. The

WP(C) no.1989 of 2020 // 5 //

finding in impugned order on the issue is based on, inter alia,

deposition of the workman, particularly in cross-examination. The

management failed to adduce relevant evidence in that regard.

6. On his client being entitled to compliance with provisions for

retrenchment he submits, the CGIT relied on, inter alia, exts.1, 2, 3

and ext.C. The documentary evidence clearly points to his client

having worked from year 1981 onwards. He was shifted to Kathpal

Chromite Mines in year 1986 but that cannot be seen as an interruption

of continuous service. For corroboration he relies on counter filed by

petitioner.

7. We are convinced that opposite party no.2 falls within meaning

of clause(s) in definitions section 2. There is no doubt that he was

made to do supervisory job. He did not allocate labour but reported on

how many turned up for work and what they did in a day's work. This

was clearly supervisory work. His salary was below the then threshold

making him a workman, though performing supervisory function.

8. On the second point, it appears the tribunal found on

conjectures and surmises. Of the exhibits relied upon, one is a

WP(C) no.1989 of 2020 // 6 //

certificate dated 31st December, 1984. Text of the certificate is

reproduced below.

<This is to certify that Sri Suresh Kumar Sarangi, S/o Padmanava Sarangi, Vill/ P.O. Pratap Purusottampur, Dist-Puri now residing at Boula P.O. Dhanurjaypur, Dist-Keonjhar. Now he is working with us from 23.1.81 to till date as a Supervisor. He is sincere in his duty and capable of discharging duty to your utter satisfaction.

We wish him all success in his future life. He is a young & dynamic boy.=

(emphasis supplied) On perusal of the certificate it is clear that opposite party no.2 had

approached the Managing Director with purpose for him to move on.

Hence, him being in continuous service from on or after 31st

December, 1984 through the time of his appointment on 20th June,

1986 cannot be said to be a finding based on the evidence.

9. Definition of continuous service is provided for in section 25-

B. Sub-section (1) talks about continuous service while sub-section (2)

provides for the period in a year, when a workman can be said to be in

continuous service. So far as opposite party no.2 is concerned, him

WP(C) no.1989 of 2020 // 7 //

working over ground at the mine in relevant period, for purpose of

continuous service within meaning of sub-section (2) would be 240

days. This was not clearly found by the CGIT. Omission of the finding

creates a defect in the award to also tell upon the finding regarding

compensation.

10. Finding on issue no.3 and consequently the compensation, in

impugned award, are set aside and quashed. The issues are restored to

the CGIT for expeditious hearing of the parties and answer thereon. It

is expected that upon restoration, decision on award will be made by

31st January, 2024.

11. The writ petition is disposed of.

(Arindam Sinha) Judge

(S.S. Mishra) Judge

Signature Not Verified Digitally Signed Swarna Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 10-Oct-2023 19:23:47

WP(C) no.1989 of 2020