S.\6Q{ '^yi ^ i'GiRETHEHON'BLEHIGHGOURTOFJUDICATUREAT BILASPtJR jiHMIiM!E:SIATTEROF: |IS g¥AKALI, AGEDABOUT 35YEARS, Slil'liiriMUMTAJ ALI, fifOiRAM MOWA, PQST- SHANKAR NAGAR, j^lB|gR,SINHAPRESS,MOWA, "EAIW&DIST-RAIPUR MERSUS! ^ooo W.P.NO. 705 -—PETITIOS R IMiHHATTISGAimilWR^STRUeTlIREDEV.CORP. ||BBi (3HTHEMAI^!AGIN&DIREe^'^^^ SiiS.PMAWAN.RAlPUR. \"c/^t ^%..^ a jllBNtUSTRIAL COURT,<iHARI CHOWK, ES Ct.E.iRDAD, RAIPLJR. ji <3- N?©rUONAI;LABQURCOURT, ii 11'HRQUGH A]3©|]?I0i^ERESIDINQ (^FICER^ jG::^N'^ND^A©A3R,:IR^ • ;:; '. i • \ .^/^. >C^M^y ^^ay' y^^.-" ^T '~vy -RESPGNDEm'S |^ViRI®ilPSIa!W®iMIBI@IINRSBIIffi fflsFA?FaiEl •KMiaiBBSaBfiSBHg^BHBBaSUSaffiBW^ 'l:''^j0Biia@S:iiiaffiiBfflREiT;";'.':l'.:^ i liit, -~1 ^ HIGH COURT OF CHHATTISGARH ATBILASPUR Hon'ble Mr. Justice Pritinker Diwaker PETITIONER Writ Petition No. 6000/2005 IshtiyakAli RESPONDENTS Versus Chhattisgarh Infrastructure Dev. Corporation and others Shri Bharat Rajput, counsel for the petitioner. Shri Pradip Saxena counsel for the respondent No. 1. WRTI PETITION UNDER ARTICLE 226/227 OF THE CONSTITUION OF INDIA ORDER (04.08.2011) Challenge in the present petition is to the order dated 15.6.2005 (Annexure P-2) passed by the Industrial Court in'Civil Appeal No. 248/CGIR-A-11/2004 affirming the order dated 23.9.2004 passed by the Labour Court, Raipur in Case No. 205/IA/Category/MPIR/2000 (Annexure P-1). 2. Facts of the case in brief are that in the month of August, 2000 the petitioner had filed an application before the Presiding Officer, Labour Court, Raipur under Section 31(3) read with 61 of the MPIR Act, 1960 for reinstatement of his services with full back wages. The petitioner was initially appointed as Conductor in Madhya Pradesh State Road Transport Corporation (for short "MPSRTC") and worked for about 10 years. However, on account of some domestic problem, he resigned the post of conductor sometime in the year 1998. According to the petitioner on his mercy application, on 12.7.1999 he was appointed as Driver by the Chief Work Manager and was also imparted necessary //^ ^^SWE^ 'SMSSSi training. According to him, though he was appointed against a regular vacant post, formal appointment order was not issued to him. On 6.6.2000 when he was driving bus bearing registration No. MBG 6848 being plied between Baloda Bazar and Raipur, it met with an accident near Kolhan Nala as a result of which 22 passengers got injured. The petitioner himself remained admitted in the hospital for 4 days and after recovery when he went to join his duties on 29.6.2000, he was not permitted to do so by the Depot Manager. The claim of the petitioner thus is that as he had worked for 321 days against a regular vaeant post, he has acquired the status of permanent employee of the MPSRTC. 3. MPSRTC while filing its reply has denied the contention of the petitioner that he was appointed against a regular vacant post, rather according to it he was allowed to work as Badlidar and the work was being given to him as per the requirement. It has been put forth by the MPSRTC that in the accident about 19 passengers had suffered serious injuries as a result of which a criminal case was also registered against him under Sections 279 and 338 IPC and as his act was against the interest of the Corporation and the passengers, he was not assigned any work subsequently. Contention of the petitioner that he has worked for 321 days in a calendar yearhas also been denied by it. 4. In support of his case the petitioner has examined himself vide statement Annexure P-10 whereas the Corporation has examined one JBS Chouhan whose statement isAnnexure P-11. 5. After considering the material available on record vide order dated 23.9.2004 learned Labour Court dismissed the application of the petitioner mainly on the ground that he was merely a Badlidar employee and was assigned duties only in absence of the permanent employee and that nature of his appointment was purely temporary. It is also held by the Labour Court that the -!.'—--t ^ '-s\ 1 "^^ j .^' petitioner was not given any appointment order and therefore question of granting him benefits under the provision of MPIR Act does not arise. While confirming this orderof the Labour Court, learned Industrial Court has also held that nature of petitioner's appointment was temporary and he was assigned dutiesonly in the absence of permanentemployee. It has also held that there is no evidence on record to show that the petitioner continuously worked for 240 days in a calendar year and therefore also he is not entitled for the claim sought for by him. 6. Heard counsel for the parties and perused the documents available on record. 7. Counsel for the petitioner submits that though the petitioner has not given any specific evidence regarding his continuanee in job for 240 days in a calendar year, from the claim of the petitioner and evidence of the parties it has to be presumed that he has worked for 321 days. He submits that as no appointment order was issued to the petitioner, he could not file the same but the adverse inference should not have been drawn by the Courts below. He submits that the witness of the Corporation namely JBS Chouhan has admitted that on various occasions the petitioner was assigned work against the regular post of driver and therefore it was obligatory on the part of the Corporation to fite all the documents before the Labour Court so that it could have come within the knowledge of the Labour Court that the petitioner has continuously worked for more than 240 days in a calendar year. He submits that as all the documents are with the Corporation, the petitioner could not submit any document toshow that he has worked more than 240 days in a calendar year. He submits that after imparting training the petitioner was appointed as Driver which shows thath.is appointment was againsta regular vacant post. He submits that the respondents ought to have conducted departmental enquiry before terminating the services of the ^sSSftes^'. -</- petitioner or at least a show cause notice should have been given to him. Lastly he submits that after quashing the orders of the Labour Court and the Industrial Court, matter may be remitted back to the Labour Court giving opportunity to the petitioner to adduce evidence to prove that he worked for more than 240 days in a calendar year. 8. On the other hand counsel for the respondent No. 1 submits that the petitioner was only a Badlidar employee and was never assigned any regular work except in the absence of regular employee. He submits that the petitioner has never worked for more than 240 days in a calendar year and therefore he is not entitled for any relief prayed for. According to him, merely undergoing some training of the department, the petitioner would not acquire the status of permanent employee. Lastly he submits, that in stead of CIDC, the petitioner should have arrayed MPSRTC as one of therespondents. He submits that question of remitting the matter to the Labour Court does not arise as it was the duty of the petitioner to prove his case before the Labour Court and at this stage no leniency can be shown to him by initiating de novo proceedings in the matter. 9. From the material available on record it is apparent that there is nothing to show that the petitioner has continuously worked for more than 240 days in a calendar year. Even the statement made on oath by the petitioner does not go to show that he has worked for more than 240 days in a calendar year. This Court does not find force in the argument of the petitioner that the respondents should have produced the record to show that he has not worked for more than 240 days in a calendar year because the burden lies on the petitioner to prove his case. Record goes to show that the petitioner was working simply as a Badlidar employee and allotted work temporarily in the absence of permanent employee. Accordingly, the concurrent findings of both s'^^. —.s~- ^ the Courts below being based on the material available on record are just and properand needno interference in thjs petition. 10. In the result, Ihe petition has np substance at alt and aceordjngly the same is dismissecl. 1-lowever, if thej petMioner approaGhes responaent No. 1, it may GonsjiElgr hjs case a§|plpithe directions given bythe LabourCourt. Sd/- Pritinker Diwaker Judge IIBI iiia ^pllljgl; ^l;;:!l^!llir h.;^-'i i-ia i r '<