Orissa High Court
Md. Moinuddin vs Presiding Officer on 10 January, 2013
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
W.P.(C). No.12718 OF 2008
In the matter of an application under Articles 226 and 227 of the
Constitution of India
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Md. Moinuddin ...... Petitioner
-Versus-
Presiding Officer, Labour Court,
Bhubaneswar and another. ...... Opp. parties
For Petitioner : M/s. S.S.Das,
K.C.Mohapatra &
R.K.Sahoo.
For opp. parties: M/s. Dr.A.K. Rath &
A.Panda.
(For O.P. 2)
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Date of Judgment: 10.01.2013
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
M. M. Das, J.The petitioner challenging the order dated 24.03.2008 passed by the Presiding Officer, Labour Court, Bhubaneswar, Orissa in I.D. Case No.28 of 2003 has preferred the present writ application seeking quashing of the said order and for issuing a direction to the opposite party no.2-Management to reinstate/re-engage the petitioner with immediate effect by restoring his position in the merit list and granting him back-wages and other consequential benefits.
2. The facts in brief leading to the present writ application are that the petitioner was an employee of the Utkal University 2 engaged by the authorities of the University, namely, Registrar, on daily wage basis with effect from 06.06.1991. He was placed under the disposal of the Security Department of the University and claimed to have been engaged against a substantive vacant post. The order of engagement of the petitioner was issued from time to time from the Office of the Registrar, Utkal University and, thereafter, the Security Officer used to assign the day to day duties to the petitioner. He claims to have been engaged from 06.06.1991 continuously up to 24.08.1999 without any break, being paid @ Rs.40/- per day towards remuneration. While working as such, the University authorities prepared a security list of daily wage workers in the University, which was circulated in all Departments prior to finalization of the same, inviting objection from the incumbents or from any of the Departments as the case may be. The said list was finally approved by the authorities of the University and published on 22.06.1996. In the said list, the name of the petitioner found place at Sl. No.165 and against his name, the date of joining was reflected as 06.06.1991 and the place of working was at Security Unit of the University. It is claimed by the petitioner that while working as such on 24.08.1999 when the petitioner was assigned the duty in the night shift, he experienced sudden abdominal pain and under constraint he performed his duty. After completion of the duty hours by informing the Officer-in-Charge, he went on leave. Due permission was granted to him for his medical check up. The petitioner left for his 3 native place and got himself checked up at Balikuda PHC, where the Doctor treating him advised that he should undergo Hernia operation. The petitioner underwent the said surgery and after being completely cured, obtained a fitness certificate from the Doctor and reported back for duty by submitting the joining report along with the fitness certificate on 06.10.1999, but he was refused employment. He claims to be unemployed from the said date and alleges that the refusal of employment is illegal. Under such circumstance, he approached the Labour Officer, Bhubaneswar for redressal of his grievance. The Labour Officer initiated a conciliation between the petitioner and the management. But such conciliation having failed, the failure report was submitted before the State Government. The State Government referred the following question for determination to the Labour Court, Bhubaneswar:
(i) Whether the action of the Management of Utkal University, Vani Vihar, Bhubaneswar in terminating the services of Md.
Mainuddin, Security Guard w.e.f.
30.10.99 is legal or justified ?
(ii) If not what relief Md. Mainuddin is entitled to ?
3. Upon receiving the reference, the Labour Court noticed the parties to file their statement of claim and written statement respectively. The learned Labour Court after hearing the parties and appreciating the evidence adduced before him, by his award dated 24.03.2008 came to the conclusion as follows:- 4
"Thus it is very clear that burden of proof exclusively lies on the workman to prove conclusively that he had rendered more than 240 days of work during 12 months preceding the date of his termination from service. In the instant case the workman has signally failed to discharge the burden of proof that lies on him. The management, through its document Ext. A, has conclusively proved that during the period between 1.11.1998 to 30.10.99 the workman had rendered less than 240 days of work for the Utkal University on daily wage basis. Although the workman has contended that his services was terminated with effect from 06.10.99 by way of refusal of work, the workman has not proved any document to show that the date of retrenchment of the workman was 6.10.99. On the other hand the reference by the State Government in the instant case clearly indicates that the date of termination of service of the workman was 30.10.99. Accordingly the period of preceding 12 months has to be reckoned with effect from 30.10.99 and therefore the period of work rendered by the workman between the period 1.11.1998 to 30.10.99 has to be taken into account. From Ext. A it is seen that between the said period the workman had rendered only 234 days of work. Thus, it cannot be said that the workman was in continuous service under the management within the meaning of section 25-B of the I.D. Act. Therefore, the management was not under any obligation to comply the requirements of Section 25-F of the I.D. Act. Consequently it is held that the termination of the service of the workman by the management with effect from 30.10.99 was legal and justified. The issue No.1 is answered accordingly."
Thus, concluding, the learned Labour Court held that the petitioner is not entitled to any benefit whatsoever under the provision of the I.D. Act. The petitioner being aggrieved has preferred the present writ application.
4. Mr. S.S. Das, learned counsel for the petitioner contended that the learned Presiding Officer has misdirected himself in construing Ext-A/1 to be the complete statement regarding the petitioner's period of service under the opposite party authorities. In 5 fact, Ext-A/1 suggests the absentee statement of the petitioner with effect from January 1999 till 23.07.1999 whereas it is the admitted fact by the parties that the petitioner was engaged as a daily wager at the University with effect from 06.06.1991 and continued up to 24.08.1999. That apart the petitioner was refused engagement with effect from 06.10.1999 on the basis of a circular that was issued almost a month and 20 days after the date on which the authorities did not allow the petitioner to resume his duties. He further contended that the learned Presiding Officer took the date of reference to be 30.10.1999 and calculated the 12 months period with effect from 01.11.1998 and came to a conclusion that the petitioner had rendered only 234 days of work by referring to Ext-A/1 which reflected the days of works the petitioner had rendered till 21.07.1999 but not up to 24.08.1999, whereas the fact remains that the petitioner did render his services till 24.08.1999. Had this aspect been taken into consideration which was available with the learned Presiding Officer through the additional affidavit submitted by the petitioner, the days of service rendered by the petitioner would have been more than 240 days. On the other hand, it was incumbent on the part of the learned Presiding Officer to call for the records from the office of the opposite parties so as to verify the exact position regarding the days for which the petitioner did actually render his services. Moreover, the aspect regarding petitioner's rendering work at the University Ladies Hostel, Gymnasium and the Parija Library 6 becomes abundantly clear through Annexure-6 of the present writ petition. Nevertheless, such fact was also available with the learned Tribunal. Mr. Das also submitted that the learned Presiding Officer should have treated the last working day of the petitioner to be 06.10.1999 and under such circumstances the calculation should have commenced from 07.10.1998 instead of 01.11.1998 (as has been done by the learned Tribunal) and in such event, it would have been held that the petitioner did work for more than 240 days within a year prior to his disengagement. The statement through an affidavit by the claimant having remained un-controverted, there could not have been any other inference than to hold the petitioner to be in continuous service for a year. That apart, fact remains that the petitioner was in continuous engagement since 1991 for more than eight years and, as such, did satisfy the conditions of Section 25-B(1) straight away. Regarding the said aspect, the petitioner also prayed for calling for the records. Without verifying the records, the learned Presiding Officer by erroneous appreciation of section 25-B(2)(a)(ii) notwithstanding the fact that the petitioner did satisfy the condition of 25-B(1) rejected the claim of the petitioner by relying upon a judgment which is not applicable under the facts and circumstances of the instant case.
5. It appears from the record that the total days, the petitioner worked in each year from his date of engagement (06.06.1991) till his last day of work (24.08.1999) as per the records is as follows:-
7
1991 1992 1993 1994 1995 1996 1997 1998 1999 January 29 24 30 25 27 25 26 19 February 24 27 23 25 20 21 11 25 March 25 31 26 25 20 27 26 25 April 27 28 27 28 26 21 07 19 May 16 18 26 28 31 24 14 25 June 22 25 29 27 24 25 29 30 27 July 29 28 30 25 19 27 30 31 13 August 28 27 27 28 25 08 26 28 24 September 29 27 24 28 27 30 25 20 - October 31 30 28 31 31 29 16 30 - November 26 29 28 30 24 26 21 30 December 31 23 31 22 23 29 29 28 Total 196 310 325 325 304 298 294 281 177
6. It may be noted that over and above the documents produced by the parties, which have been marked as exhibits, the workman examined himself as WW1 and the Security Officer of the Utkal University was examined on behalf of the management as MW1.
7. It is an admitted case that after 24.08.1999, the petitioner has not worked. The petitioner claims that he having suffered from pain on the night of 24.08.1999 with the permission of the authority, he did not join in his work as he was undergoing treatment. Further, admittedly no action, for having remained unauthorizedly absence, as alleged by the management, was taken against the petitioner after 24.08.1999. The petitioner claims that he returned to his duty and submitted his joining report on 06.10.1999, though in the reference, it is stated that termination was with effect from 30.10.l999.
8. On perusing the failure report submitted by the Labour Court to the Government, on which the reference was made, it 8 appears that during the course of conciliation, it was claimed on behalf of the workman that he submitted his joining report on 06.10.1999. The representation of the management before the Labour Court except alleging that the petitioner was remaining unauthorizedly absent on various earlier occasions, but never took a stand that he was terminated from service with effect from 30.10.1999. The learned Labour Court has failed to note this aspect of the case as well as the evidence of the workman on oath where he stated that he came to join his duty after being declared fit by the Doctor on 06.10.1999 with the medical certificate and the fitness certificate. This aspect was not controverted in any manner during cross examination. The seniority list produced before the Labour Court marked as Ext. 4 also discloses that the petitioner joined on 06.06.1991. The witness on behalf of the management admitted in his examination-in-chief that the petitioner on 06.10.1999 came to the office and produced the medical certificate for the period from 25.08.1999 to 05.10.1999 and since he remained absent for more than one month, the management did not allow him to continue in work any further. The Labour Court has lost sight of all these aspects while passing the impugned order refusing to grant relief for reinstatement of the petitioner on the ground of violation of the provision of section 25 (f) of the I.D. Act. From Ext. A produced by the management with regard to the number of days the petitioner worked, it is clear that the petitioner worked for more than 240 days within 12 9 months preceding his date of retrenchment/refusal by the management allowing him to join in duty.
9. In view of the above, this Court finds that the learned Labour Court was not correct in refusing the claim of the petitioner- workman and answering the reference by stating that there is no illegality in terminating the petitioner. Hence, the said award passed by the learned Labour Court, which ex facie shows errors apparent on the face of it, stands quashed and the management-University is directed to reinstate the petitioner in the capacity in which he was earlier working. Since the management has prepared a seniority list, the seniority of the petitioner should be maintained in accordance with the said list. With regard to back wages, this Court finds that as the petitioner has not worked, he will not be entitled to the back wages, but due to illegal retrenchment of the petitioner, the University-management is directed to pay the petitioner a lump sum compensation of Rs.15,000/- (Rupees fifteen thousand). The petitioner on being reinstated shall be paid an equal amount as is being paid to his counterparts.
10. The writ application accordingly stands allowed.
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M.M. Das, J.
Orissa High Court, Cuttack.
January 10th, 2013/Himansu 10