BS te ;^-.f"""'"'•'-'.' • • "I ''. .:"''.:-.'.'.' •":";'.'- ' / ' • ' .'" • • .' '•••' > BEPGBE HQN'BSB BBE^I©_eonRI ®'MABHTA P&AEESH E J'ABAM>® c . .. • . 1 Case So^t^/97 V.P. «. • • ' ' '...." J Cfabatisgarto Stoaaife Saagto, MIS 1/55 t Amadi Magar, HTOCO, %tlai, throagh ; SeHeral Seeretary...... ' ~ PetttioHer < ' ". - 4 ^ . ^/a . . . . ^l, Arvind Iron & Steel Co., 1 Slaelt Baa, Bhilai, Bistpict Barg. ,2. Presiding Offieer, /f I«abeur C@urt (Oader I.B.Aet) ^ l^ Bm'g. • ; , _ '", i . ..... Respoadeats L<. •'•'.:'•'•.• ^ frlt Petitlon aader A'tieles 5 226 aad 227 ®f tfae CoastXtutlon of ladla. • BSigiy.|,t E'.-iiSBifesl ^'^^B^i^ :;l'":^^r;l^i;-:-' ^^s'sn^K- Ellffl.^ 8B!Tii !!!fI;l';fEN ;: '• vs. aii'i-'1 :• }'•'-1-'; ;l:li ES;;i. gt HIGH COURT OF CHHATTISGARHAT^ILASPUR (Mon. h/lr. Justice Pritmker Diwaker) Writ Petition No. 2982 of 1997 ..'^•'^J IBi 8U :S!>? %il 'S9S\ ':^SSl 'IiB ga ill PETITIONER RESPONDENTS Chhattisgarh Shramik Sangh VERSUS S'v'kvSSS ':l;F^;'£^li^ «&sa% laWSWE!1 KjiK:^iaBi £iffi3SH!Si S118SII iKWS'aBIS'R ftittSiaB IISSMBS: Arvind Iron & Steel Co. and anotHei- Ms. SharmilaSinghai counsel forthe petitioner Shri K.S. Khanuja counsel for the respondents. WRITPETITION UNDER ARTICLE 226/2270F THE CONSTn-UTION OF INDIA ORDER (23 .09.2010) .i^yi^'a'fl !Hi'iS31 :M Challenge in this writ petition is to the award dated 14.5,199^.'|;; ^(Annexure P-10) passed by respondent No.2 by which refereri^.^l^gS^ been answered against the petitioner. 2. Facts ofthecase in brief are that onS.12.1986 (Annexure P-2|yc the reference was made by the State Government for the follQwilgl^yi, qyesfions: ': ::'; "cfqT Rillulcb gM Vff^ [«rfipBT ^ •q^ •MdM t}'^ itv Tj'ai<t<hrl*'!"r Rimr ^TFTT IET '?? 'gfer t ? ^rfS' ^' (ff i -'.rPl'S f^T ^I?TTOT ^ m^ t cTSTT ?w ^'ET ^ pF'rtura; cBt 'ipn' PT^'CT f^ uTRT qiftT?? " aiiiSl ilKI :^^f\ WaS ISBi SSBI' 3SS Pursuant to this reference, statement of claim (Annexure R-3)wa^'||iK submitted by the petitioner/'Union. Written statement was filed tsy ti^g non applicants before the Labour Court in which non-applicant Nd.tiS (General Manager, Arvind Iron Company Slag Dump Bhila^.ha^||. completelydeniedtheclaimofthe petitioner whereasthe non-appj«s|ir|||y;,:; No.2 (Manoj Jaiswal, Partner, Arvind Iron Company Slag Dump Bhi[l|jj| has.stated that he has no concern with Arvind Iron Company as'neWSS he is a partner nor has he any busin&ss to do with the same. In supp|^:||| ifi of the statement of claim the petitioner has examined four witnesse^||J namely D.R. Choudhry, Kritlal Chandrakar, Smt. Rambai and Q6pa||? rf-r- <-^' Bif »>• .wWUSB asaau — 2. — .'!.SK iSHJfllt iiis^^iB^?1; BBS — il^^^M' ^IISg i'Sil^'iBBI1 wwss' )whereas non-applicnt No.1 has examined two witnesses ha)n®i Sanjay Jaiswal and SunilSingh. After due appreciation ofthe evidertc^l :lhe fTribunal has passed the impugned award holding .that 32 workersl 'aremot entitled for any relief as theywere never employed hy^illlj^liigj '[sagisafiig :61iS applicant No.1 and elaim of bonus and wages cannot be grant^lffij them as the samewas not'the subject matter of referenee. ^l 11 ^:"®^1 3. Counsel for.the petitioner submits that services of 32 work^ were terminated without following due procedure oflaw as they hai/8] not been given retrenchment compensation as required underfhe la\«| and that respondent No.1 has utterly failed to file any regist^rytr| support of its contention that 32 workerswere not its employees. Sh^ ;submits that though as per the statemenf of Sanjay Jaiswal witnesssiOJ lirespondent No.1,attendance register was being maintained bi.it^lill i»IJ BII :Fii: ^vf^ i^::M^ Sli •B lljg illi same has not been produced. She further submits.that in the stateiT|g|jIBi iglljgjl Sii^^l Sli3 ^i^. jQf claim though it has not been very specifically:stated about il]fi|ai]| retrenchment but from the statement of claim it is implied that the saM||? pertains to retrenchment only. She submits that in paragraphs'l andjli^ ofthe statement of claim it has been Gategorically pointed out by th^ petitioner as to forwhat period the 32 workers have worked and,sinic^ whehtheir salary has not been paid. Refernng to the Court staterHent^ of D.R. Choudhary, Kritlal Chandrakar and Rambai counsel for th§i fpetitjoner submits that these witnesses have categorically statetfas^jj Iffle (aeriod and manner of employing these 32 workers. Shesutm|||g| that;lcase of the^petitioner has been in fact partially proved; by||||||j3|||| i^illlSSIBB :witness of respondent No.1 namely Sanjay Jaiswal who has adrnffi|| the fact that for execution of the work about 150-200 w6rkersw|)"|i||||: ^•M lli:E VSSf'K i"ii!4a ISI::1; ai IS 'w^w ^employed and but for 32 workers the gate passes were issued fo ^||gg||! other workers and attendance register was also maintained by fl'i^|t':i,yi| Company. She submitsthat when the attendance register-foFthe,yga|t(i|y'- 1982-83 was maintained showing the names ofthe workers, itwastffir^" duty. of the respondent No.1 to produce the sam& in suppQrt ofljt^i ;contention. She submits that the petitioner was not required to pcQ^i 1.: 1; the faet that the 32 workers tiave worked for more than 240 days|;||| Ei'lli;.11 calendar year-Jn support of her argument, she placed reliance oiaj|g| •m, •<- ^i^lllli^i^ET'1 S!li?BI !ii;:l'^'IS"<i3; =i-:n,i.::III:i: |;,!lii::|.?g|E 5;.B;[5' °'l:!til)S<ISi. KS&sssSKS'fi S^ifasss S; "^'[.VSs:^ -i 181 :lgi.l'gli IUFI m 8iWi ^K^'li-.^'^lilEil lij%S!!S 's — ^ _ , . ' decision of the Supreme Court in the matter of Harjinder SirtgM||J :K3"S Punjab State Ware Housing Corporation repQrted in (2010) 3 ^Sffill 192. :4. . Replying to the argument ofthe petitioner it has-Aeen argued.lta^ the counsel forthe respondents that respondentNo.l.was awardSil; .iConfract of recovery, removal and lifting of scrap after inviting tehd|E|| ? |by Rhilai Steel Plant for a period ofone year with effectfrom 21.6.1^ sito 20,6.1983. He submits that prior to expiry of this period a n@I|;|I||i|j||| •'wflS'HBiWia dated 17.5.1983 was issued informing the workers working witl-lftilSJ|jg|S •the contract period is expiring on 20.6.1983 andthereforeff|tBU services will not be required. Workerswerefurther infQrmed to coll§<st their dues. It has been further argued that as contract period itselfwa^;l:|'iiE'!;||| l;;il.^I:E'jlJi}! for one year, the Bhilai Steel Plant again invited fresh tenders fdr,tU^jB||,|!||i|| ;WorK which was allQtted to the petitioner for the year1983L84 ana'1Efi^'|||«|(& time IVI/s Prasad Udyog Calcutta was awarded the aforesaid ConfraGJ ]ifoF the period starting from 21.6.1983 to 20.6.1984. He further suWi^i ithat as M/s Prasad Udyog Calcutta did not start the work witti e0;| :1? 1818 ^from 21.6.1983, respondent No. 1 was allowed the recovery, re(ia|%g| iand!lifting of scrap initially for 12 days from 24.6.1983 to 5.7.198f|S|j ,f^yg;3j ithereafter when M/s Prasad Udyog Calcutta did not start w8pj respondent No.1 was allotted the said workfora period of24 dayswjt||| effect from 1.9.1983to 24.9.1 983. He submits that the workers woFkiEiffl :withthe respondents were again contacted for carrying out the jofci'foi] 24 days but many of them refused to accept the job on the ground th'af if respondent No.1 did not pay wages to them for the period frorrj ,.: i!6.7.1983 to 31.8.1983 they will not resume their work, He'atso stibrilM SiW Tt;|!tKa(|as there was unresf on the site, police was infbrmed and :c^iBi|§ workers were arrested. He submitsthat after 24.9.1983 the wQrl<;i»S||i s:ss allotted to one M/s System India Ltd. Bhilai for the period 1983-1;9:8S|i;l| has been denied by respondent No.1 that 32 workers whose nan'ps , are mentioned in schedule -1 attached with the petition had neverbeS^ , •employed by this respondent at any time or during the period frQrri|'|^ !21.6.1982 to 20.6.1983 and also during the twice extended peri0d:':1jo|||;i:: 12 days and 24 days. RespondentNo.1 admits that pefitioner/Un]®i|), liiilB'BS'il i|S!i.i!'j';;s.'iSS8ii IffiF' '.K .1,: w t- 3'h—?..,.' vm^x^. w iSIS: :^;!!?r' M..'^i. ; ~.^.^- ..•:,..'-.::? l^'StMIJB^i^ ||'j|'!j|^:||g;^ —ii-':.'; ' : : , . :.: 1 raised the dispute before the Assistant Labour CommissiQner, Rat|tjj in the matter of termination of services of 143 workers- including^tB|! namesofthese 32 workers mentioned in ScheduleA (Annexyre P-:1)i| iCQuirisel fbr respondent No.1 has drawn the attention of this Gciuj'Ofli the ^tatement of D.R. Choudhary - thewitness of the petitionei'.^l-l^, also; referred to the statements of Kritlal Chandrakar, Rambai and.tBal lof Sanjay Jaiswal and Sushil Singh. He submits that in the ;ea|U ijstafement .of ctaim there is no mention of word "illegal tern'iinaHI^I llffBIRiBSS w^^:- Bi:liH Bii!i.lB;ulisIllt!3 SS'S'f^.^^3°I .;^'J^faa^ BIVISLSGj SSKi •t1-1 inate retrenchment or retrenchment CQmpensation" and therefore the ©®B8i! ws faelow is fully justified in passing the impugned award in fayd !J|| .. . .. . .. .. . :.' . . .. ! .:: . :.-'i:-!5BSI respondent No.1. He submits that thereis no pleading on behalfQ^®||; ;ii^IE^i11 <5'r;!i|||g|g3, IJi f!'t:l?IWi!!'fr illlllllllll' EEISI-BillK ESISI; Bil ^s !BS 2a »s 3S BHS: illliMi^^lEi if iHJ •g^:lllllglllllli petitionerthat 32 workers have worked for more than 240 days and'1:liM|||||l||l|^ burden of proving this fact was on the petitioner. He submitsthat tB^|jIi|||:|||i •^till'lyill^l^ petitioner has not examined any ofthe workers out offhe 32 as shov>irFf-iJKR|@i'-l|' by him. He submits that question of granting annual bonus orwag'|gjg|||;|i Idoes ndt arise because the same was not the term ofthe refeFehGetf-lfl|;;|j|S|!l submits that so far as the attendance register of the workera|ii^'||j,.^|||lj concerned, same was not produced as it was never demanded.Sljl^ submits that the finding offact canhot.be interfered with by this ©s|g|j unless the same is found to be perverse. He submits that no^rlBJII^BE '.".^SffiiKBfiB iaw point is involved in the case and therefore no re-appreciati6hj|o!| evidence is required and the petition is liable to be dismissed. 5. From the statement ofclaim it is clear that fhe petitioner hasl^ti|ojj pleaded anywhere about the retrenchment of the workers or al30ii..i:| iretrenchment compensation. Statement of claim appears to be yei^f vague in which the petitioner has claimed annual bonus from the yeai]' '1983-84 and has simply stated fhat wages of the workers hav^|||| ig been paid. In paragraph 3 ofthe statement ofclalm it has been «fs|g ;lj3|:;-ii ftHHKSs SlffiBBIB •a iBS; ^;l;!^ih'J.iil':- 1!^[^. i-ki'd • i:Biil B"i that the 32 workers have not been allowed fo work since Sepfemfcpit" 1983 whereas other workers have been allowed the same. Mer^^ mentioning of words that the respondent No.1 has not adopted .angy iSSS!i jegal norms to terminate the work does not fulfill theTequiremenf of^|ij| iunless it has been categorically averred by the petitioner abdut; retrenchment of the workers and their claim and most importantly tt1a(; •^?- •<:<- ^•^ ••^^. W W2S" ii*^J..f,. iill.tli8: s: '^...^.' ^. il.".'.i " :f;' K3:l 1181 ;ii-r'.';;. iH.S' IKStt BKS B,iK s.n 11;.!' BiSI^BI liillfffeSII l!|i|11iltti:! BS^l? KR:"i:, ili SSii CTBsia i.-s;i;ii^;^^.' Bii5HiiSi,i ga ^~_ : iey have worked for more than 240 days in a particular calenaiaif year. Statement of claim is thus apparently not very specific and.do^ not meet out the requirement of law. D.R.Choudhary - witness a{;gBB petitioner has admitted the fact that he is not aware as tofor period the 32workers have worked. He has admitted that gate pass|l|l were given by fhe employer for which he has got sufficient proof an&ji^ possessed of the gate passes but only nine gate passes have beer^ filed by the witnesses as Ex. P-1 to P-9 and none of the gate passgs|: are related to the 32 workers for whom the dispute has been raisec)| Kritlal ChandrakaF another witness of the petitioner has also admittec| ffie fact Ihat contract period of respondent. No.1 had expired @^, 20.6.1983. Thereafter fresh tenders were called and the fender :|ggjng^f'|jg|j aaaBi: ^11:'. given to one M/s Prasad Udyog Calcutta for the year 1983-84. V%|B :i'^:S'S'I sas fiBBlliS^ admitting the caseof respondentNo.1 this witness has sfated thatitgilg said Prasad Udyog Calcutta could not stari: work after 20.6.1983 ajjief therefore respondent No.1 was again given work for 12 days frami; 24.6.1983 to 5.7.1983 and thereafter for 24 days from 1.9.1983 itcjj 24.9.1983. He has admitted the fact that M/s Prasad Udyog CalGup.!!! could nof carry out the work for the year 1983-84, in the following yeait the work wasallotted to M/s System India Ltd. Bhilai for the periQc| 24.10.1983 to 21.3.1984. In the last paragraph of statement ttis|^ witness has furtheradmitted the fact that since the period theyi'i-sl^ji been discontinued from service by respondent No,1, the 32 worl<§j||| were working as labourers and were getting Rs. 25 per day aswag:g§jg; He has further stated that all the labourers were gefting monthly RaS?|; and their per day wage was not fixed but they were getting Rs. 15®Cj|, per month as wages. Even from the statement of Rambai -witnessgQ^i the petitioner it is not clear as to for what period she has worked. FrcUTfi;:1 •the statement ofthe witnesses ofthe petitioner it is clear that they havd |: suppQrted the defence of respondentNo.1 and none of the witnesses|; hasistatedin respect ofappointment ofthe workers for240 daysjrj^a calendar year. So far as the point of bonus and wages is concerr)|d|j the Labour Court has rightly held that the same was not the term Qp't|)^M reference and therefore it cannot be adjudicated in favour of'rt|^|j|;||,|g||| petitioner. • ^ - . :'t:.i:l,!F!'^i::tJS:; :l?^'.^i^;l^^' ^jt^l^i^lll}-' "iis •! • - e>— BBKBB'EB^ WI'WiB; B. K{!;S 6. From the evidence adduced bythe parties it is apparentthatlSf petifioner has utterly failed to prove the requirement of 240 dajsS] continuous service.It is a settled legal position thatonus lies on flg^ worXers to prove.that they worked for 240 days in a calen(:lar^egi|{ Moreover, statement of claim itself is not clear and the evidence:ilifS|i not toeen produGed as per the requirement of law, this Ceiurt fificlg;Mi( iBM:JiHEISISiBli:ilc:lif^gu'tto interfere'with ^a well reasoned order by way:of:|||| IJii:Tl.f!IIBBil'' .jappi'eciation of entire evidence. The order impugned does,nbt':|s||||| •s°aiUElS from any illegality, infirmity or pen/ersity and therefore thfesanjlgig lrriaintained. Petition being withouf substance is liable to be clismis^8| !lt is dismissed as such. 9 Wii ^l^l^'ia^ll II^^^•S a :sSs ga SIIB :i1,'i;:?!:i^itli^li^! llni H- i|?ll:l::^-;tl^K BBIISSIhS^ BiB»1 Sd/- Pritinker Diwaker .MB l'rg:IB -•'•Slgll .'.-;..;i;i&-i; -BBS 1111: Ks ^ :^';^;:'-;•':• ^":^'";:A ffiBBKt illl!!i::B!|B liJSil'IEIISS8 SII:SISIBI! 18ii 1;%1 '^•' ^i;'i^':'.'l:i^.;Bi£lt'^.lii SSISISIBi SsSSSSSS f'H^a'BsE. :li-HB':!t.t39S^ SW-KSS' ,l.i r^; "ww 'filai: ffiISl