R.N.BISWAL, J. W.P.(C) NO.2706 OF 2006 (Decided on 19.10.2011) GOPINATH PANDA …. ….. Petitioner. .Vrs. M/S.MINERAL & METALS TRADING CORPN. OF INDIA LTD.,BBSR. ……….Opp.Party. INDUSTRIAL DISPUTES ACT, 1947 (ACT NO.14 OF 1947) – S.25-B. For Petitioner - M/s. Durga Prasad Nanda, P.K.Mahapatra, M.K.Pati, R.Kanungo. For Opp.Party - M/s. B.Dasmohapatra & B.N.Bhoi R.N.BISWAL,J. This writ petition has been filed challenging the order dated 16.11.2005 passed by the learned Industrial Tribunal, Bhubaneswar in Industrial Dispute Case No.34/96 (Central). 2. The Government of India in the Ministry of Labour, in exercise of powers conferred upon them by Clause-(d) of sub-section (1) and sub-section-2 (A) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred as I.D. Act) referred the following dispute to the learned Industrial Tribunal, Bhubaneswar on 19.9.1996, for adjudication. “Whether the action of the management of M.M.T.C. Ltd., Paradip, Dist: Jagatsinghpur, Orissa in terminating the services of Sri Gopinath Panda, Labourer with effect from 1.4.1993 and not giving him enhanced wage, bonus and overtime allowances due to him is legal and justified ? If not, to what relief the workman is entitled to ?” 3. The said reference was registered as I.D. Case No.34/96 (C). In his claim statement, the petitioner-workman stated that on 9.5.1981 he was engaged as a labourer by the opp.party-management for picking up foreign materials from iron ore and clearing spillages at ship’s deck and was being paid on hourly basis up to end of June 1986. Thereafter he was paid wages @ 22.50 paise per day. He continued as such for more than 12 years without break in service. After several representations made by the petitioner-workman and taking into account his continuous service for more than 12 years, the General Manager M.M.T.C. issued a letter to the Chief General Manger (P & A) M.M.T.C. for regularization of his service vide office letter No.6.3.1992, but to no effect. So, he was compelled to file O.J.C. No.8708 of 1992 against the opp. party-management before this Court for regularization of his service. In Misc. Case No.182 of 1993 arising out of said O.J.C., this Court vide order dated 14.1.1993 directed the opp.party-management to allow the petitioner to continue as daily wager, but instead of complying the said order, they disengaged him from 1.4.1993. On 15.3.1995, O.J.C. No.8708 of 1992 was disposed of directing the petitioner to approach the Industrial forum to establish his right that his termination was illegal. Accordingly, he took shelter of the labour machineries and ultimately the aforesaid reference was made by the Central Govt. According to the petitioner-workman his services were illegally terminated without following due procedure of law, as laid down under the I.D. Act, even though he continuously worked from 9.5.1981 to 1.4.1993. The opp. party-management in their written statement contended that they never engaged the petitioner on 9.5.1981 as alleged. He was engaged as a casual worker as and when required @ Rs.22.50 paise per day from 1987. He was never employed continuously. He was not given any appointment letter and as such there was no question of regularization of his service. They denied any letter to have been issued by the General Manager M.M.T.C. for regularization of the service of the petitioner. They also denied to have disobeyed the order of this Court. According to them, the work of deck clearing and cleaning of foreign materials from iron ore is not perennial in nature. When they obtain order from foreign buyers of iron ore, then only clearing of foreign materials from the ore is required. It is the further case of the opp. Party-management that because of poor performance of the casual workers, they set up automatic plant for cleaning foreign materials from the stack and ship deck by investing huge amount of money. They no more require labourers for cleaning such foreign materials from the iron ore or from the site. On the basis of the claim statement and the written statement of the parties, the learned Industrial Tribunal framed two issues. 4. To establish their respective case, both the parties led evidence. After going through the evidence on record and hearing the counsel for the parties, the learned Tribunal allowed the reference in favour of the petitioner-workman. The said order was challenged by the opp.party-management, before this Court in O.J.C. No.4229 of 1999. This Court set aside the impugned order and remanded the matter back with direction to decide the matter afresh with liberty to the parties to adduce further evidence if any. Pursuant to the said order, liberty was given to the parties to adduce further evidence. Petitioner (W.W.No.1) was recalled, examined further and cross examined. Some documents were exhibited on behalf of the petitioner workman. Similarly M.W.No.2 was examined and Ext.A was marked. After going through the evidence on record, the learned Tribunal held that the petitioner-workman was working as a daily wager as and when required; that he did not hold any post and that he failed to prove that he worked for 240 days in one calendar year preceding the date of his removal, as required under Section 25-B and Section 25-F of the I.D. Act and as such ordered that the action of the opp. party-management in terminating the services of the petitioner with effect from 1.4.1993 and in not giving him enhanced wage/bonus, over time allowance was legal and justified vide order dated 16.11.2005. The said order is under challenge in the present writ petition. 5. Learned counsel for the petitioner submits that vide letter NO.Z.20025/47-2000- CLC-II dtd. 22.8.2000 the Govt. of India issued a circular directing all the State Industrial Tribunals to transfer the cases relating to Industries/Industrial undertakings for which the appropriate Govt. is the Central Govt. to newly constitute Central Govt. Industrial Tribunals and from the said date onwards the State Industrial Tribunals ceased to have jurisdiction to decide disputes in which the Central Govt. is the appropriate Govt. Further, this Court through Special Officer (Admn.) wrote vide memo No.8342 dated 20.9.2000 to the Industrial Tribunals at Bhubaneswar and Rourkela to transfer the Central Govt. reference to the Central Govt. Tribunal. So, the adjudication of the present 2 dispute by the Industrial Tribunal, Bhubaneswar is without jurisdiction and as such it is liable to be struck down. As against this, learned counsel appearing for the opp. party- management contends that, earlier the Central Tribunal, Bhubaneswar decided the present reference as stated earlier on 8.12.2008. The same being set aside by this Court, the reference was remanded back to the Industrial Tribunal, Bhubaneswar to decide it afresh. On being so directed by this Court, the Tribunal adjudicated the matter afresh, even though separate Central Govt. Industrial Tribunal had already been established by then. Moreover, petitioner-workman did not raise this point before the Industrial Tribunal, so at this stage it cannot be raised. 6. Admittedly, the present I.D. case was disposed of earlier on 7.12.1998. Being dissatisfied with the said order the management filed O.J.C. No.4229 of 1999 before this Court which having been heard was disposed of on 20.4.2005 and the matter was remanded back to the Industrial Tribunal, Bhubaneswar to decide the case afresh. So, even if the Central Govt. Industrial Tribunal had already been established by the time the case was remanded back to the Industrial Tribunal, Bhubaneswar, in view of specific order of this Court to decide the Case afresh, it cannot be said that Industrial Tribunal, Bhubaneswar lacked jurisdiction to decide it. Moreover, as rightly submitted by learned counsel for opp. Party-management, the petitioner did not raise this point before the Tribunal. As it appears, he is a fence sitter. He was waiting for the result and when it went against him, he is raising this point now. Furthermore, the Industrial Tribunal, Bhubaneswar was deciding both the matter relating to Central and State reference till establishment of separate Central Govt. Industrial Tribunal. The Industrial Tribunal, Bhubaneswar did not lack inherent jurisdiction to decide the reference in question. So, the argument advanced on behalf of learned counsel for the petitioner-workman that the Industrial Tribunal Bhubaneswar lacked jurisdiction to decide the reference after establishment of the Central Govt. Industrial Tribunal cannot be accepted. 7. Learned counsel for the petitioner-workman submits that the learned Tribunal committed gross error of law in calculating the number of days the workman worked in twelve calendar months preceding the date of his termination. The petitioner-workman was disengaged on 1.4.1993 and the learned Tribunal calculated the number of days he worked from that date backward till 1.4.1992 and held that the petitioner-workman did not work for 240 days in 12 calendar months preceding the date of his disengagement, which is wrong. If it is proved that the workman worked for 240 days in any calendar year preceding his termination, he cannot be denied the benefits of Section 25-F of the I.D. Act. In support of his submission, he relies on the decision in the case of Suraj Pal Singh and others and Presiding Officer Labour Court No.III and another,2002(95)FLR, Delhi High Court, where it has been held that Section 24-B read with Section 25-F of the I.D. Act cannot be restricted to immediately preceding the calendar year. As long as an employee has worked for 240 days in any calendar year preceding his termination, he would be entitled to the benefits under Section 25-F of the Act. Learned counsel for opp.party-management has no quarrel over this proposition of law. In the case at hand, even though the petitioner did not work for 240 days in twelve calendar months immediately preceding the date of his termination, yet he has worked for more than 240 days in the year 1991, 1990 and 1989 as found from the evidence on record and as such he was deemed to be in continuous service for one year in terms of Clause (1) of Section 25-B of the I.D. Act. So, the order of the learned Tribunal that the petitioner-workman has not worked for one year is illegal on the very face of it. 3 Admittedly, the opposite party-management have not complied with the provision of Section 25-F of the I.D. Act before refusing work to the petitioner-workman, so his disengagement is illegal. 8. As regards non-payment of enhanced wage, bonus and over time allowances, it has been held in the case of State of Haryana and another Vs. Tilak Raj and others, AIR 2003 S.C.2658 that since daily wager hold no post and the scale of pay is not attached to a definite post he cannot claim the benefits. In the present case, as borne out from the evidence on record, the petitioner was engaged as a daily wager, so he is not entitled to get enhanced wage, bonus and overtime allowances. The learned Tribunal has rightly not awarded these benefits to the petitioner-workman. 9. The petitioner was disengaged in the year 1993. He was aged about 40 years in the year 2006. So now in the year 2011, he is aged about 45 years. As per the case of the opp.party-management, in the meantime they have set up an automatic plant for cleaning foreign materials from the stack and ship deck by investing huge amount of money and they no more require labourers for cleaning of the same. Under such circumstances, it would meet the ends of justice if a lump sum amount of Rs.2,00,000/- is awarded in favour of the petitioner-workman as compensation. 10. Accordingly, the writ petition is allowed in part and the impugned order holding that the action of the opp.party- management in terminating the services of the petitioner-workman with effect from 1.4.1993 is justified is set aside and the order, so far as the action of the opp.party-management in not giving the enhanced wage, bonus and overtime allowances to the petitioner- workman is hereby confirmed. The opp.party- management shall pay a sum of Rs.2,00,000/- (Rupees two lakh) as compensation to the petitioner-workman within a period of one month hence, failing which they shall pay interest at the rate of 9% per annum till payment is made. Accordingly, the writ petition stands disposed of. No cost. Writ petition allowed in part. 4