The State Of M.P vs Bhairav Prasad Mishra on 23 April, 2008

[Cites 13, Cited by 4]

Chattisgarh High Court

The State Of M.P vs Bhairav Prasad Mishra on 23 April, 2008

1. The petitioner, State of M.P. (Now Chhattisgarh) challenges the validity of the award dated 01.05.1996 (Annexure P/1) passed by the Labour Court, Bilaspur, in case No. 105/I.D.A./90(Ref) whereby removal of the respondent from service was held as illegal and the petitioner was directed to reinstate the respondent with full back wages.

2. The indisputable facts are that the respondent was engaged in the establishment of Executive Engineer, Public Health Engineering Division, Korba, as Pump Operator on daily wages basis at village Pauna, Tahsil and District Janjgir-Champa, in the year 1981. The services of the respondent was discontinued by oral order on 31.12.1988. The operation of the Pump for which the respondent was appointed, was handed over to the Gram Panchayat, Pauna. Engagement of the respondent was for only three months during the summer season as seasonal daily wager, and for the remaining 9 months, the services of the respondent was not required as operation of the Pump was not necessary after onset of the monsoon., After amendment in the constitutional provisions, Panchayat Raj system was introduced in the year 1993. Thereafter, maintenance and regulation of Pump House was handed over to the concerned Gram Panchayat.

3. Being aggrieved by discontinuation of service of the respondent, the respondent raised an industrial dispute before the Deputy Labour Commissioner, Raipur. The Deputy Labour Commissioner referred the dispute to the Labour Court on 04.05.1990. The Labour Court, after having examined all the aspects, came to the conclusion that the respondent has worked for more than 240 days before termination of his service and the respondent was not given any show cause notice or retrenchment allowance as provided under section 25F of the Industrial Disputes Act, 1947 (for short `IDA'). The Labour Court found that the services of the respondent was engaged from 1st of April to 30th June every year for operation of water pump. Accordingly, the Labour Court allowed the application and granted reinstatement with back wages on the ground that the retrenchment was illegal. Thus, this petition.

4. Shri U.N.S.Deo, learned Government Advocate appearing for the petitioner submits that the finding of the fact recorded by the Labour Court is contrary to the documents on record. The basic requirement to invoke provisions of section 25F of IDA is working for 240 days in the preceding year. The Labour Court has taken working of 240 days in the entire service. It is found that the services of the respondent was engaged from 1st April to 30th June during summer season. If the total period are taken into consideration without any break, it would not be more than 90 days in the preceding year. The continuous service as defined under section 25B of IDA means 240 days in one calendar year. Admittedly, the respondent has not worked for more than 90 days in a particular year as seasonal daily wager. Thus, the finding of the Labour Court is perverse and provisions of section 25F would not be applicable in the present case.

5. Per contra, Shri A.K.Shukla, learned counsel appearing for the respondent would submit that the petitioner was not a seasonal employee. He was appointed in the year 1981 and worked continuously upto 31.12.1988. Therefore, he worked for more than 240 days regularly. Since the petitioner was a regular employee, the petitioner is entitled to benefits under the provisions of section 25F of IDA. The respondent was neither paid retrenchment compensation nor one month's notice in advance was issued to him. Thus, the order of the Labour Court is just and proper by holding that the retrenchment of the respondent was illegal. The petitioner was rightly directed to reinstate the respondent in service with full back wages.

6. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. It is evident on the basis of findings recorded by the Labour Court that the services of the petitioner was engaged for a period of three months from 1st of April to 30th June every year. Accordingly, in one calendar year, the respondent had worked for about 90 days and not 240 days, as required under provisions of IDA.

7. Section 25B of IDA defines continuous service that where a workman who is not in continuous service for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year if the workman during the period of 12 calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than 240 days. For a period of six months, if the workman during the six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than 120 days. Section 25B of IDA reads as under:

"25B. Definition of continuous service. - For the purpose of this Chapter, -

(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -

(i) ninety-five days, in the case of workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case.

Explanation - For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous year;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]"

8. Section 25F of the IDA provides for condition precedent for retrenchment of a workman wherein condition is continuous service for not less than one year under the employer shall entitle workman to the benefits of one month's notice in writing and retrenchment compensation payable before retrenchment. Continuous service for not less than one year under provisions of section 25F read with section 25B of the IDA means 240 days in the preceeding year. The Labour Court has not calculated the working of 240 days in the preceding year but for the total period from 1981 to 1988 and came to the conclusion that the respondent has worked for more than 240 days. This is contrary to well established principles of law. Thus, holding retrenchment as illegal, is not in accordance with the provisions of section 25B and 25F of IDA. Thus, the impugned order is not proper and deserves to be set aside.

9. In the matter of Surendra Kumar Verma etc. v. The Central Government, Industrial Tribunal-cum-Labour Court, New Delhi and another1, relied on by the learned counsel for the respondent, the Supreme Court observed as under:

"8..The provision appears to be plain enough. Section 25-F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present S. 25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need not be. That appears to be the plain meaning without gloss from any source."

10. The case of Deep Chandra v. State of U.P. and another2, relied upon by Shri Shukla, is not applicable to the facts of the instant case wherein the employee worked for more than 240 days in each year for several years. Thus, it was required to follow the procedure prescribed under section 25F of IDA.

11. The case of P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar etc.3, relied on by Shri Shukla, is also not applicable to the facts of the instant case as the same deals with payment of back wages with reinstatement.

12. In the matter of Manager, Reserve Bank of India, Bangalore v. S.Mani and others4, the Supreme Court observed that in law, 240 days of continuous service does not give rise to claim of permanence. In the facts of the present case, the respondent has not worked for 240 days of continuous service in the preceding year. Thus, the same is not applicable to the facts of the case, as cited by Shri Deo.

13. The case of Sonepat Cooperative Sugar Mills Ltd. v. Rakesh Kumar5, cited by Shri Shukla, is not applicable to the facts of the case as in the instant case the respondent has admittedly not worked for 240 days in the preceding year.

14. In the matter of State of M.P. and others v. Arjunlal Rajak6, cited by Shri Deo, learned counsel for the petitioner, the Supreme Court observed as under:

"6. It is beyond any doubt or dispute that a daily-wager does not hold a post. The Forest Department is a wing of the State. Its employees hold a status. For acquiring that status and for obtaining the constitutional protection in terms of Article 311 of the Constitution, all appointments must be made in conformity with the constitutional scheme as laid down under Articles 14 and 16 of the Constitution as well as the rules made in terms of proviso to Article 309 of the Constitution or in terms of a legislative Act. Concededly, while appointing the respondent, the constitutional provision or the statutory provisions had not been followed. The rights and liabilities of the parties are, therefore, governed by the terms of the contract and/or the provisions of the statute applicable in relation thereto. The respondent was not given any offer of appointment in writing. He admittedly worked in different departments of the State. His last posting was in the production division of the Forest Department in the district of Guna which as noticed above stood abolished. It is, however, true that while terminating the services of the respondent the appellants had not complied with the mandatory requirements of Section 25-F of the Industrial Disputes Act and, thus, ordinarily, the workman could have been directed to be reinstated with or without back wages, but it is also well settled that when a project or scheme or an office itself is abolished, relief by way of reinstatement is not granted."

15. In the matter of Municipal Council, Sujanpur v. Surinder Kumar7, cited by Shri Deo, the Supreme Court observed as under:

"12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman"

16. In the matter of Surendranagar Distt. Panchayat and another v. Gangaben Laljibhai and others8, cited by Shri Deo, the Supreme Court observed as under:

"12. It was held in all these cases that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer."

17. In view of the well settled dicta laid down by the Supreme Court in various cases relied on by the parties to the facts of the instant case, the respondent is not entitled to relief under section 25F of IDA. The pre-condition required for benefit under section 25F of IDA was not available as respondent admittedly had not worked for more than 90 days in one calendar year. Thus, the impugned award is quashed and set aside.

18. The petition is accordingly allowed. No order asto costs.9 JUDGE

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