Ashok Kumar Mahapatra vs Hemalata Sahoo And Others

B.P. Routray, J

The ex-parte award dated 15th December, 2011 has been challenged in the present writ petition.

The Petitioner is the first party management before the learned Industrial Tribunal and present Opposite Party No.1 was the 2nd party workman.

The Opposite Party raised the industrial dispute upon denial of employment to her with effect from 17th June, 2009. Her case is that, she was appointed on 1st August, 2000 on rehabilitation ground in the office of the Notified Area Council of Nilgiri due to accidental death of her husband, who was working as a lighter in the said office. She was appointed as peon and allowed to work as such with effect from the date of her joining i.e. 1st August, 2000 uninterruptedly till 17th June 2009. During her continuance as such, she was transferred to the office attached to the Executive Officer vide Office Order No. 1283 dated 19th October, 2004 (Ext.1). But all of sudden she was not allowed to enter into the office of the Petitioner management from 17th June, 2009 without any reason. So she raised the industrial dispute, which was ultimately referred under Section 10 of the Industrial Disputes Act, 1947 for adjudication and registered as ID Case No. 28 of 2010.

The Petitioner management despite service of notice, did not choose to contest the case before the Tribunal and was set ex-parte.

In absence of the management, the learned Industrial Tribunal proceeded with the case and recorded evidence of the workman. Then considering the claim statement of the workman and her evidence, the tribunal finally passed the award dated 15th December, 2011 setting aside the illegal retrenchment of the Opposite Party with further direction for her reinstatement in service along-with payment of full back wages. Aggrieved with the said award, the Executive Officer of Nilgiri NAC preferred the present writ petition in his own capacity.

It is submitted on behalf of the Petitioner that the learned Tribunal has committed error by directing for reinstatement of the Opposite Party in service with full back wages without any material in support of the contention of the Opposite Party. It is further submitted that the Opposite Party was working on DLR basis and she was not a regular employee of the NAC and as such, the direction for her reinstatement in service is bad in the eye of law. It is also submitted that due to suffering from cancer by the then Executive Officer no step could be taken by the NAC. Even in absence of any written statement or response from the side of the management, the onus is on the workman to establish her case with supporting materials. So the impugned award which has been passed ex parte is unsustainable in the eye of law in absence of any material produced by the workman to reveal her continuous engagement in the Petitioner establishment.

Learned counsel for Opposite Party workman submitted that, she being the widow of her late husband was given appointment on rehabilitation ground by the NAC vide its resolution dated 22nd July, 2000. She joined in service on 1st August, 2000 and worked continuously as a peon in the establishment of the Petitioner till 17th June, 2009, when she was denied to enter into the office without any reason and notice. It is further submitted that, as she pursued for realization of the compensation amount before the Workman's Commissioner for death of her husband while in duty and the properties of the NAC were attached at her instance, she was not allowed to discharge her duty.

In the backdrop of above submissions of the parties, perusal of the record reveals that, the Petitioner has admitted about employment of the Opposite Party workman as a peon in their office. The Petitioner has admitted so at paragraph 12 of the writ petition. It is the specific case of the workman that she was appointed by resolution dated 22nd July, 2000 of the NAC and joined as a peon in the office of the NAC on 1st August, 2000. On 19th October, 2004 she was attached to the office of the Executive Officer to work as such. The copy of Office Order dated 19th October, 2004 has been marked in evidence by the workman as Ext.1 before the tribunal. A copy of said Ext.1 is also produced before this court by the opposite party. Besides that, copy of the resolution of the NAC dated 22nd July, 2000 and another Office Order dated 4th February, 2008 showing payment of consolidated remuneration to the workman, have been filed by her along with her counter affidavit. All such documents including Exhibit-1 reveal the continuous engagement of the workman in the office of the Petitioner establishment without any doubt. Moreover, the employment of the workman in the NAC, her joining in service and her continuous discharge of duty in the office of NAC till 17th June, 2009 are not disputed by the petitioner. So the challenge of the petitioner that she is not entitled for reinstatement is without any substance.

The further contention put forth on behalf of the petitioner that the workman is not entitled to be reinstated in service for she was not a regular employee of the NAC, is completely misconceived. It is totally irrelevant for the purpose whether the workman was engaged on regular basis or on DLR basis. In Devinder Singh vs. Municipal Council, Sanaur, AIR 2011 SC 2532, it has been observed as follows:-

"14. It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman."

The reasons assigned by the Petitioner for their non-appearance before the Tribunal is not found justified. It for the reason that the Executive Officer was neither sued in individual capacity nor anything personal was alleged against him. Further, the representation by the executive officer in his own capacity to file the present writ petition is also unacceptable. Since the Petitioner management is an office, it should have been represented properly. The explanation for non-filing of the written statement due to illness of the executive officer is not a justified ground to set aside the ex parte order.

In view of the discussions made above, the writ petition is dismissed.

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