© ,^, ;^ ^..^.."* •,.<;1 ^_ -^••^'.^- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARH) W.P. IL} N0.'7/^^- OF 2008 PETITIONER Kailash Kumar Nirmalkar, S/o. Shri Nathuram Nirmalkar, Aged about 25 years, R/o. Village ~ Lokhandi, Post ~ Mangla, Distt. Bilaspur (C.G.) VERSUS 1. Executive Engineer, Public Works Department^ ^o^ Ovy^sion^ '" Edeck No. 1, Bilaspur (C.G.) 2. Sub Divisional Officer, Public Works Department,QS^ 1 •^'sJ ^' ^V^St^^^'" No. 1, Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA e- <0 K 1 m^. ''^•^fs^ d^:Mf ^ <3'l:I:tlllti "il;:;^'^'.'[! •';;^n?';il;;ii- WlSi^' PETITIONER RESPONDENTS HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 7147 of 2008 Kailash Kumar Nirmalkar VERSUS Executive Engineer & another Shri P. S. Koshy counsel for the petitioner. Shri Pravin Das Dy, GA for the respondents. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORDER (07.09.2010) Challenge in the present writ petition is to the order date,c| 31.01.2008 (Annexure P-1) passed by the Labour Court, Bilaspur in cas^ No. 38/1D Act/2006 (reference) whereby the reference made by the Stat^ Government has been answered in favour of the respondents by holdin^ that the petitioner is not entitled for any retrenchment compensation. | j 2. Case of the petitioner is that he was initially appointed as labour iri the respondent department w.e.f. 01.07.2000 thereafter his services werQ terminated by an oral order w.e.f 01.09.2004 without complyingwith th4 provisions of the Industrial Dispute-Act 1947 and without assigning any reason. ; | i 3. Contention of the counsel for the petitioner is that in his statement Of claimit has been categorically averred by the petitioner that without complying with the provisionsof Section 25 G and other provisions of the Act, the petitioner has been retrenched. He submits that in paragraph q of his statement of claim it has been specifically averred by the petitionet? that the persons junior to him have been retained and in stead ofgivin^ the detailed reply of this particular averment, only simple denial has beeri made by the respondents. He submits that the Court below was obligecf to frame a particular issue in respect of compliance of Section 25 G of tN Industrial Dispute Act and then only after recording evidence of th^ ::fj|, li,"l-;., •l^i ii„ '&^ •:j^-l,: ^r^ Bi; II -^- . „ 1! parties the same should have been decided by it. In support of hi^ argument he placed reliance on the decision of the Supreme Court in th^ matter of Harjinder Singh v. Punjab State Warehousing Corporati< reported in 2010 AIR SCW 1357. Relevant portion of the said decisior| reads as under: ! "13....Moreover, it is settled law that for attracting the applicability of Section 25 G of the Act, the workman is not required to prove that he had worked for a period of 240 , days during twelve calendar months preceding the ; termination of his service and it is sufficient forhim to plead : and prove that while effecting retrenchment, the employer violated the rule of 'last come first go' without any tangible reason. In Central Bank of India v Satyam (1996) 5SCC 419 : (1996 AIR SCW 3138), this Court considered an analogous issue in the context of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis....." Counsel for the petitioner further submits that in paragraph 9.7 of the writ petition the petitioner has categorically submitted that the persons junioif to the petitioner have been retained and though the petitioner ha^i, disclosed their names, no specific reply to this averment has been mgdej ||| Hesubmits that almost in identical case this Court has passed the ordeif dated 28.4.2010 in W.P.(L) No. 7146 of 2008 remitting the matterbackto the labourCourt. I 'j. 4. On the other hand it has been argued by the counsel for the Stat^ that in reply to thestatement ofthe claim before the Labour Courta cleat| rebuttal regarding retention of the persons junior to the petitioner has been made by the respondents and therefore the Court below was fully justified in passing the order impugned. 5. In view of the pleadings of the parties and from the perusal of th^ ^, record it is clear that the Court below has not framed any specific issue in respect of the compliance of the provisions of Section 25 G of Industria] Dispute Act and in particular the principle of 'last come, first go' and^ therefore the order impugned dated 31.01.2008 (Annexure P-1) cannot be sustained and is liable to be quashed. i :M:'\ M ..Itf sm •s:[ 111 •^J''!',•' .J;;-.: •^.^ n' E lij^- f . II 6. In the result, the petition is altowed. Order impugned is hereb^ quashed. However, the matter is remandedto the Labour Court, Bilaspu( for considering the aforesaid issue with regard to compliance of the) provisions of Section 25-G of the Industrial Dispute Act and decide.tlie) same on its own merits after affording due opportunity of hearing to the| parties as early as possible preferably within a period offour months fromi the date of receipt of copy of this order. 7. It is clarified that none of the observations made in this order woulc| come in the way of the Labour Court in deciding the issue involved in the case. Sd/- Pritinker Diwaker Judge m :i| ;i ;i;ip;i'. lfllt: •tM tl' ^M ^ ii^:i.l::;j ".•••:.;.'!!:U;ii;!!;-.y "i;i''lii'j'ii. •MH^ -t! ; 1:H;i. .;.:fc4;-IKi: :;.i:.;ii: :^:i|;!i;-;i;i :I; .,':'.':' .l..'l^^ji. .i'. gil'