Patna High Court
The State Of Bihar And Ors vs Bhupendra Prasad Sinha And Ors on 12 August, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19605 of 2010
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1. The State of Bihar, through Chief Engineer (Mechanical) Water
Resources, Govt. of Bihar, Patna
2. The Executive Engineer (Mechanical) Irrigation Mechanical Division,
Baunji, Banka.
... ... Petitioners
Versus
1. Bhupendra Prasad Sinha, S/o- Late Yugal Kishore Prasad, R/o- Village-
Malaypur, P.O.- Malaypur, Distrcit - Jamui.
2. The Presiding Officer, Labour Court, Bhagalpur.
... ... Respondents
======================================================
Appearance:
For the Petitioners : Mr. Sanjeev Kr. Singh, AC to SC21
For the Respondents : Mr. Jitendra Prasad Singh, Advocate
: Ms. Sripriya Sinha, Advocate
: Mr. Rajeev Kumar, Advocate
======================================================
CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date: 12-08-2024
1. This Writ Petition is filed seeking relief of nature
of Certiorari for quashing the Award dated 19.05.1998, passed
in Reference Case No. 02 of 1995 by the Presiding Officer,
Labour Court, Bhagalpur.
2. The brief facts called out of the Writ Petition are
that respondent No. 1, namely, Bhupendra Prasad Sinha was
engaged on daily wages from 14.03.1981 in Sub-Divisional
Office (Technical), Kalyanpur, Jamui and was subsequently
disengaged from the work on 17.10.1982. Thereafter,
respondent No. 1 preferred Reference Case No. 22 of 1988
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
2/12
which was allowed by the Labour Court and an Award was
passed dated 05.09.1989 setting aside the removal of
respondent No. 1. Pursuant of the Award dated 05.09.1989,
respondent No. 1 was again engaged on 19.12.1990 as per the
need on Muster Roll of the Department.
3. Subsequently, Irrigation Department, Govt. of
Bihar directed all the appointing authorities to retrench the
worker engaged temporarily on Muster Roll, for which the
cut-off dated was mentioned as 01.08.1985. In compliance
with the orders of the Bihar Government, respondent No. 1
was again disengaged from services w.e.f. 01.09.1993 with
any prior notice.
4. It is specific contention of the Learned counsel
for the petitioners that respondent No. 1 has been engaged for
work as per the need and he did not work more than 90 days
continuously and further he has not completed 240 days of
continuous work during his full tenure of engagement. Later,
respondent No. 1 preferred Reference under Section 10 of the
Industrial Dispute Act, 1947 before the Labour Court and the
said Court without considering the materials on record
numbered it as Reference Case No. 02 of 1995. The Writ
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3/12
Petitioners made their appearance and also filed the written
statement in detail, contending that Section 10, Sub-Rule 2A
of the Industrial Disputes Act, 1947 is not applicable to the
employees of the Irrigation Department and as such, the re-
engagement of respondent No. 1 ought to be rejected. But an
Award was passed by the Labour Court, Bhagalpur on
19.05.1998.
5
. It is also the specific contention of the Learned
counsel for the petitioners that respondent No. 1 was not
appointed to the post of 'Helper' in accordance with the rules,
but was only engaged on the basis of the need of work as a
temporary daily wage worker and that the Award passed by
the Labour Court is arbitrary and illegal and it has to be
rejected on the ground that the Water Resources Department
do not come under the term/word 'Industry' and as such, the
Labour Court has no jurisdiction to try the matter. It is also
contended by the counsel for the petitioner that a detailed
written statement was filed before the Labour Court and
without considering the material objections, the Labour Court
has passed the Award, which is liable to be set aside.
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
6. On the other hand, respondent No. 1 has filed a
detailed counter, denying all the allegations made in the Writ
Petition. It is specific contention of the Learned counsel for
the respondent No. 1 that the Award was passed in the year
1998 and the Writ Petition was filed in the year 2010 and that
there is inordinate delay of about 12 years for which the Writ
Petition is liable to be dismissed, as there is no proper
explanation on the part of the Writ Petitioners for the
inordinate delay in challenging the Award. It is also contended
by the counsel for respondent No. 1 that the first respondent
was initially removed in the year 1982, for which he made
Reference Case No. 22 of 1988, which was decided by the
Labour Court vide Award dated 05.09.1989, holding that the
termination of respondent No. 1 by the Department is illegal
and as such, he is entitled for reinstatement on the post of
'Machine Helper' with pay and other benefits. It is also
contended that pursuant to the order of the Labour Court,
respondent No. 1 was again re-engaged on 19.12.1990, but
again respondent No. 1 was removed from service without any
valid reason w.e.f. 31.08.1993, for which he preferred a
Reference Case bearing Reference Case No. 02 of 1995 and
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
after considering the entire materials on record and the rival
contentions, an Award was passed by the Presiding Officer,
Bhagalpur on 18.05.1998, holding that the removal of the
respondent No. 1 is illegal and he is entitled to be reinstated
with arrears of salary. It is further contended that initially
respondent No. 1 was concerned to file CWJC No. 7163 of
1999 for implementation of the Award as the Petitioner-
Department reinstated the respondent No. 1 and the said Writ
Petition was dismissed on 14.08.2003 as withdrawn.
7. Heard the Learned counsel for the petitioners as
well as the Learned counsel for respondents.
8. The order dated 29.06.2012 of this Court
transpires that there is an inordinate delay of 12 years in
preferring the Writ application, as the Law Officer did not file
an affidavit along with Writ petition. However, this Court
directed respondent No. 1 to file counter affidavit. Further,
order dated 24.03.2014 clearly discloses that petitioners were
showing willingness to comply the order passed under the
provisions of Section 17-B of the Industrial Disputes Act
provided that the respondent No. 1 files necessary affidavit
showing that he has nowhere been employed during the
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
pendency of this application. Further, the order also disclose
that the petitioners shall not to take any coercive steps against
respondent No. 1 for recovery of such amount from
respondent No. 1 and the petitioners are ready to comply the
part of the impugned order as per the provisions of Section
17-B of the Industrial Disputes Act.
9. At this juncture, it is contended by the Learned
counsel for respondent No. 1 that he had filed an interlocutory
application bearing I.A. No. 2720 of 2018, dated 05.04.2018
for vacating the stay order dated 24.3.2024 and 10.04.2014, in
which it is contended that as per the petitioners, they shown
their willingness to comply the part of the impugned order as
per the provisions of Section 17-B, and this Court was pleased
to stay the impugned order. Subsequent to the order dated
10.04.2014, the petitioners had paid the arrears and wages to
the respondents on 15.05.2014 by way of a cheque.
Thereafter, an amount of Rs. 9,874/- (Nine Thousand Eight
Hundred Seventy Four) was paid by way of a Demand Draft
dated 29.09.2015. It is specific contention of the respondent
No. 1 that the petitioners had not paid the wages to respondent
No. 1 as provided under Section 17-B of the Industrial
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
Disputes Act, which was one of the condition while granting
stay and as such, the petitioners have violated the terms and
conditions and, therefore, prayed to vacate the stay order
passed by this Court.
10. Admittedly, no counter was filed to I.A. No.
2720 of 2018. However, a supplementary affidavit was filed
by the petitioners on 03.07.2014, wherein it disclose that this
Court have directed the petitioners to make payment under
Section 17-B within four weeks and pursuant to that the
Department has paid an amount of Rs. 1,58,344/- (One Lakh
Fifty Eight Thousand Three Hundred Fourty Four) under the
provisions of Section 17-B from 01.09.1992 to 18.05.2014.
However, no Calculation Chart was filed along with the
affidavit, as to how the petitioners have arrived to such
calculation, for an amount of Rs. 1,58,344/-.
11. It is also the specific contention of the Learned
counsel for the petitioners that the Labour Court, Bhagalpur
has no jurisdiction to try the Reference Case and inspite of
taking the objections in the written statement, an Award was
passed by the Labour Court.
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
12. On perusal of record, it is evident that the written
statement, which was filed before the Labour Court was not
annexed with the Writ Petition. On perusal of the Award, it is
evident that initially respondent No. 1, namely, Bhupendra
Prasad Sinha, who was a daily wage worker of Irrigation
Department (Division Mechanical No. 1) was removed from
his work by the Management on 17.08.1992.
13. Being aggrieved by the retrenchment, respondent
No. 1 has preferred Reference Case No. 22 of 1988 and
Labour Court has passed order dated 05.09.1989, directing the
management to reinstate respondent No. 1. Accordingly, the
petitioners herein have re-engaged respondent No. 1 on
19.12.1990 as per the Muster Roll.
14. Admittedly, no objection was raised by the
petitioners, as far as the jurisdiction of the Labour Court is
concerned in Reference Case No. 22 of 1988. For the first
time, the petitioners raise the point of jurisdiction of the
Labour Court in the present Writ Petition. The Award was
passed by the Presiding Officer, Labour Court, Bhagalpur in
reference No. 02 of 1995 on 19.05.1998. The present Writ
Petition was filed in the year 2010 i.e., after 12 years. Further,
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
the contentions of the Writ Petition does not disclose
sufficient cause as to why the Writ Petition was preferred
against the respondent No. 1 at a belated stage i.e. after 12
years. Admittedly, the Award was passed on 19.05.1998 and
the same was referred to the Law Officer of the said
Department, for filing the Writ Petition. The said Department
took decisions to prefer Writ Petition on 16.10.1998. An
affidavit was also signed by the Law Officer on 21.12.1998.
Inspite of it, the Writ Petition could be preferred by the
petitioners only in the year 2010. Furthermore, the Award
disclose that the Govt. of Bihar has decided to retrench all the
employees who have not completed 240 days of work and the
cut-off date was 01.08.1985. But the said proceedings are not
placed before this Court along with the Writ Petition for the
best reasons known to the petitioners.
15. Without perusal the orders passed by Bihar
Government, this Court cannot come to a conclusion whether
such decisions is valid in the eye of law or not? The contents
of the Writ Petition further disclose that the respondent No. 1
was retrenched from the Department as he has not
continuously worked for 240 days. Further, the contents of the
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
Writ Petition itself disclose that the petitioner initially was
appointed on 14.03.1981 and he was disengaged from service
on 17.10.1982.
16. Even if the cut-off date of 01.08.1985 is taken
into consideration, the respondent No. 1 worked from
14.03.1981 to 17.08.1982 i.e. for 17 months, which disclose
that the respondent No. 1 worked in the Irrigation Department
for more than 510 days. Basing on the Reference Case No. 22
of 1988, an Award was passed by Labour Court 05.09.1989.
Again respondent No. 1 was re-engaged on 19.12.1990 and
the management has removed him from service on
01.09.1993. If the working days of the respondent No. 1 are
counted, they all come together for more than 1012 days.
Therefore, the contention of the petitioners that the respondent
No. 1 did not work in the Department for continuously 240
days, therefore, the service of respondent No. 1 has been
retrenched, cannot be a valid ground.
17. Admittedly, in the first spell, respondent No. 1
has continuously worked for more than 510 days and further
in the 2nd spell, the respondent No. 1 worked from 19.12.1990
to 01.09.1993 i.e. continuously for more than 1012 days.
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
Therefore, the orders of the Bihar Government contending
that if any person who will not work for continuous 240 days
has to be retrenched will not affect case of the respondent No.
1 in any manner. Therefore, this Court finds that there is no
irregularity in the orders passed by the Labour Court. As far as
the point of jurisdiction is concerned it has to be raised before
the concerned Court at the first instance. The petitioners did
not raise the point of jurisdiction of Labour Court in
Reference Case No. 22 of 1988 and therefore, they cannot
raise his objections at subsequent stage in Reference case No.
02 of 1995.
18. Admittedly, the written statement of the
petitioners (filed before the Labour Court in Reference Case
No. 22 of 1998) is also not filed along with the Writ
application to see whether any such objection was raised by
the petitioners before Labour Court or not?
19. Therefore, this Court finds no merits in this Writ
Petition.
20. With the aforesaid discussion, the Writ Petition
stands dismissed as devoid of merits.
Patna High Court CWJC No.19605 of 2010 dt.12-08-2024
21. Interlocutory application(s), if any, shall also
stand dispose of.
(G. Anupama Chakravarthy, J)
Shanu,Manish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 30.08.2024.
Transmission Date NA
