HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition No. 1516 of 2002
M/s Shivam Motors Pvt. Ltd.
....Petitioner
-Versus-
State of Chhattisgarh & others
....Respondent
! Petitioner by Shri S. M. Mendhekar, Advocate with Shri
G. V. Krishna Rao, Advocate.
^ Respondent No.1 by Shri Arun Sao, Deputy Govt.
Advocate.
Respondent No.3 by Shri Malay Kumar Bhaduri, Advocate.
By Justice Satish K. Agnihotri.
Dated: 01/07/2005
: O R D E R
(1.7.2005)
1. The present petition under Article 226/227 of the
Constitution of India is filed against the award dated
20.5.2002 passed by the Labour Court, Bilaspur in Case No.
60/I.D.A./K-111-A/00 (Ref) whereby the Presiding Officer of
the Labour Court has directed the petitioner (second party)
to reinstate the Respondent No.3 (first party) in the
service on the post of Mechanic w.e.f. 31.8.1999 with full
back wages and consequential relief.
2. The facts in nutshell are that according to the
Respondent No.3 he was engaged/appointed by the petitioner
as Mechanic in his company on 1.4.1994. He continuously
worked in the petitioner-company for more than 240 days in
one calendar year till his services were terminated orally
without prior notice on 31.8.1999. While in employment he
was getting a salary of Rs. 1150/- p.m.
3. The respondent No.3 approached the Additional Labour
Commissioner complaining about termination without complying
with the provisions of Section 25-F of the Induatrial
Disputes Act 1947 (which will be referred hereinafter `the
Act 1947′). Having failed in the conciliation proceedings a
report was submitted to the State Government. The State
Government by order dated 21.8.2000 made a reference under
Section 10 (1) of the Act 1947 to the Labour Court.
4. The Respondent No.3 examined himself as witness wherein
he deposed that he was working as Mechanic in the petitioner
company from 1.4.1994 till 30.8.1999. The Respondent No.3
further deposed that he was sent on several occasions to
other cities for repairing and servicing and for that
purpose the petitioner was paid separately to him. He also
deposed that he had worked for more than 240 days in one
calendar year.
5. The petitioner has filed written statement in the
Labour Court submitting that the Respondent No.3 was not
regular employee of the petitioner. He was engaged for 20 to
25 days on the basis of the need of the work. The petitioner
did not have any work for the Respondent No.3 as such the
Respondent No.3 was not engaged in service.
6. Mr. N. D. Joshi was produced and examined by the
employer/petitioner. This non-applicant witness in his
statement has stated that the services of the Respondent
No.3 was engaged on need basis. In his cross-examination the
witness of the petitioner did not admit that he has produced
any documents which indicates that the regular payments were
made and his signature was obtained.
7. Learned counsel for the petitioner submits that the
Labour Court without deciding the question as to “whether
the Respondent No.3 was a workman/employee of the petitioner-
company or not within the provisions of the Industrial
Disputes Act, 1947 ?” has passed the award. In support of
his contention learned counsel for the petitioner relies on
the decision of Hon’ble Supreme Court in the case of
Himanshu Kumar Vidyarthi Vs. State of Bihar reported in 1997
(II) M.P. Weekly Notes (122) wherein Hon’ble Supreme Court
has held that the temporary employee working on the basis of
the need of the work his disengagement cannot be termed as
retrenchment under the provisions of Section 25 -F of the
Industrial Disputes Act, 1947.
8. Learned counsel for the petitioner also placed reliance
on a decision of Hon’ble Supreme Court in the case of Range
Forest Officer Vs. S.T.Hadimani, reported in (2002) 3 S.C.C.
25, in support of his contention that it is for the workman
to prove the fact that the workman has actually worked for
240 days in a calendar year. The petitioner submits that the
Respondent No.3 has not proved by submitting receipt of
salary or wages for 240 days or record of appointment in
order to show/establish that the workman i.e. the Respondent
No.3 has actually worked for 240 days.
9. Learned counsel for the Respondent No.3 relies on two
decisions of the Hon’ble Supreme Court viz. in the case of
H. D. Singh Vs. Reserve Bank of India & others reported in
AIR 1986 S.C. 132 and, in the case of Workmen of American
Express International Banking Corporation Vs. Management of
American Express International Banking Corporation reported
in AIR 1986 S.C. 458; in support of his submission that
working for 20 – 25 days in a month means working for the
full month, because Sunday and other paid holidays should be
taken into account for the purpose of reckoning the total
number of days on which the workman could be said to have
actually worked.
10. Having considered the contentions of learned counsel
for both the parties and perusing the records, it is found
that there is no clear finding as to whether the Respondent
No.3 was regularly working i.e. 240 days in one calendar
year from the period of his appointment till the date of the
alleged oral termination. Learned lower Court has not
considered any other facts before reaching to the conclusion
that the Respondent No.3 has worked for more than 240 days
in one calendar year and it is apparent that the impugned
award was passed without examining of the relevant papers.
Since learned Lower Court has not recorded any finding with
regard to the `master and servant relationship’ and `working
for 240 days in a calendar year’, before passing the award
in favour of the Respondent No.3 granting reinstatement and
payment of back wages. The award is not sustainable.
11. It appears that no stay of the operation of the
impugned award was granted. Learned counsel for the
petitioner submits that the petitioner has offered
reinstatement as per the impugned award to the Respondent
No.3 vide letter dated 28.8.2003 (Annexure P/10) but the
same was declined. Learned counsel for the Respondent No.3
submits that the offer was declined because the petitioner
did not pay the back wages.
12. In the peculiar facts and circumstance of the case, the
petition is allowed and the case is remanded back to the
Labour Court Bilaspur on its original file for fresh
disposal in accordance with law. Since the matter is old and
involves alleged termination of service of an employee, the
Labour Court is directed to dispose of the matter within a
period of three months from the date of receipt of a copy of
this order.
J U D G E