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Judgment
The petitioner State has filed this writ petition under Article 226/227 of the Constitution of India assailing the award dated 11.11.2021 passed by the learned Labour Judge, under Inustrial Dispute Act, Labour Court, Bilaspur, District - Bilaspur (C.G.) in Case No. 34/I.D.Act/Ref./2017 by which the respondent workman has been reinstated without back wages on his previous post.
Brief facts, as reflected from the record are that the respondent workman was working as Chaukidar with Indira Amrai Van Ropani, Forest Range Bilaspur and his services were discontinued on 01.04.2017 by an oral order, therefore, he raised industrial dispute before the Conciliation Officer Assistant Labour Commissioner Bilaspur, but the conciliation proceeding could not be concluded within 45 days, therefore, he raised industrial dispute before the Labour Court as per amended provisions of Industrial Dispute Act, 1947 challenging his termination from service.
The Labour Court issued notice to the respondent and the petitioner to submit statement of claim and reply to the statement of claim respectively. The respondent workman filed statement of claim contending that he was working from January, 2014 to April, 2017 and he has completed 240 days within a calender year before the date of termination and by oral order, he has been terminated on 01.04.2017. It has been further contended that he has completed 4 years satisfactorily service, therefore, he has attained permanency and the petitioner State without compliance of Sections 25F, 25G and 25H of the I.D. Act, has terminated the services of the respondent workman by oral order, as such oral order dated 01.04.2017 be kindly quashed and he be reinstated with full back wages.
The petitioner herein has filed reply to the statement of claim denying the allegation contending that the respondent has not completed 240 days preceding one year from the date of termination i.e. 01.04.2017 and since the respondent is unable to complete the requisite continuation of service, therefore, there is no requirement to comply with Sections 25F, 25G and 25H of the I.D. Act, and it has also been contended that he is not working continuously and would pray for dismissal of the case.
The respondent workman examined himself and respondent examined A.S. Nath, Range Officer, Bilaspur Range, Bilaspur.. The learned Labour Court after appreciating the evidence and material on record has passed the impugned order reinstating the respondent workman without back wages. Being aggrieved with this award, the State has preferred this writ petition.
Learned counsel for the petitioner/State would submit that the finding of the learned Labour Court that the respondent completed 240 days in a calender year is perverse finding and liable to be interfered. It has also been submitted that burden lies upon the workman to prove that he has completed 240 days, but he failed to prove it, therefore, the award passed by the learned Labour Court suffers from perversity and illegality and would pray for allowing the writ petition by quashing the impugned award.
On the other hand, Mr. S.P. Kale along with Mr. Lav Sharma, counsel for the respondent would submit that the respondent has been able to prove its case that he has completed 240 days in a calender year service, therefore, the award passed by the learned Labour Court reinstating the respondent workman without back wages is legal and justified and would pray for dismissal of the writ petition. He would further submit that the respondent in compliance of Section 17-B of the I.D. Act, has already reinstated the respondent on 14.05.2022 as a daily wage employee and since then he is working for more than 4 years, therefore, they would submit that since the petitioner has already reinstated the respondent, as such it, prima facie, reflects that the petitioner is required manpower to look after the forest division, therefore, he may be allowed to continue in the service and the writ petition may be dismissed on this count also.
I have heard learned counsel for the parties and perused the record annexed with the writ petition.
From the submissions made by the parties, the point emerged for determination by this Court is:
“Whether the learned Labour Court was justified in recording its finding that the respondent has completed 240 days in a calender year and the impugned order is legal and justified.”
To appreciate this point, it is necessary for this Court to extract relevant provisions of the I.D. Act, which reads as under:
“25B. Definition of continuous service.-- For the purposes 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 a workman employed below ground in a mine; and
(ii)one hundred and twenty days, in any other case.”
25F. Conditions precedent to retrenchment of workmen.-
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a)the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: [* * *] [ Proviso omitted by Act 49 of 1984, Section 32 (w.e.f. 18.8.1984).]
(b)the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days 'average pay [for every completed year of continuous service] [ Substituted by Act 36 of 1964, Section 14, for " for every completed year of service" (w.e.f. 19.12.1964).] or any part thereof in excess of six months; and
(c)notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette.]
25G. Procedure for retrenchment.-
Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
25H. Re-employment of retrenched workmen.-
Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity [to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen] [ Substituted by Act 36 of 1964, Section 16, for certain words (w.e.f. 19.12.1964).] who offer themselves for re-employment shall have preference over other persons.”
From bare perusal of Section 25F of the I.D. Act, it is quite vivid that for getting the protection under Section 25F of the I.D. Act, workman has to prove that he has completed continuous 240 days service in a calendar year as defined under Section 25B of the I.D. Act. Further from perusal of Section 25F of the I.D. Act, it is quite vivid that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until certain conditions as enumerated in Section 25F of the I.D. Act is followed by the employer. Thus, it is incumbent upon the workmen to prove that he has worked for 240 days in a calender year to get protection under Section 25F of the I.D. Act, 1947.
From appreciation of the evidence and also the statement of respondent wherein it has been brought on record that the respondent workman has completed 240 days continuous service before the date of termination i.e. 01.04.2017 and the learned Labour Court has recorded its finding on appreciation of facts and also considering Exhibit P/2 which is payment voucher and salary payment document. This clearly establishes that the respondent has been paid monthly salary at par with minimum wages payable to the unskilled employee in the relevant year and the same has also been paid to the respondent, therefore, the finding recorded by the learned Labour Court that he has completed 240 days precedent the date of termination is supported by some evidence which is neither perverse nor suffers from illegality warranting interference by this Court.
Even otherwise, it is well settled position of law that while hearing the writ petition under Article 226 of the Constitution of India this Court cannot re-appreciate the evidence or facts, this Court has to see that any perversity or illegality has been committed by the Court below while adjudicating the lis between the parties. Considering the parameter set out with regard to interference by this Court in a writ petition, I am of the view that neither finding recorded by the Labour Court is perverse nor contrary to the evidence which warrants interference by this Court.
Since the respondent workman has been able to prove that he has completed 240 days in a calender year, therefore, without compliance of Section 25F of the I.D. Act, termination of the respondent is not legally sustainable which has rightly been quashed by the learned Labour Court while passing the impugned order, as such the award reinstating the respondent workman without back wages neither suffers from perversity nor illegality warranting any interference, the writ petition deserves to be dismissed and accordingly it is dismissed. The point determined by this Court is answered in favour of the respondent workman and against the petitioner.
Consequently, the reinstatement of the respondent as awarded by the Labour Court is affirmed and the writ petition is dismissed.