A-^'< HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 1514 of2002 M/s Shivam Motora Pvt Ltd. -Versus- State of Chhattisgarh & ofhers Post fi>r order on 1st Juty, 2005. Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATHSGARH AT BILASPUR Writ Petition No. 1514 of2002 M/s Shivani Motors Pvt» Ltd, •Versus- State of CIiliatti^arii & ofhCTS Petitioner by Shri S. M. Meadhekar, Adwcate wifh Shri G. V. Krishna Rao, Advocate. Respondent No.l by Shri Arun Sao, Govt Advocate. Respondent No,3 by Shd Malay Kuixiar Bhaduxi, Advocate. ORDER (1.7.2005) Bv Justice Satish K* Agnihotri, 1. The prescnt petition under Article 226/227 of fhe Constitution of Imiia is fited against the award dated 20.5.^X)2 passed by fhe labour Court, Bflaspur m Case No. 61/I.D.A./K-111-A/00 (Re^ whereby fhe Presidiiig OflBcer of the Labour Court has directed fhe petitioner (second party) to reiastate fhe Respondent No,3 (first party) in fhe service on fhe post of Mechanic w.e.f. 31.8.1999 widi full back wages and oonsequential reUefc 2, The faicte ini iiutsheU arc fhat accordir^g to fhe Respondeat No.3 he was engaged/appointed by fhe petitioner as Mechacdc in his company on 1,7.1996, He contmuousty warked m. fhfi petitioner-company for more fhaa 240 days in one calendar year tiU his services were teroainated oialfy witfaout prior notice on 31.8.1999. White in employment he was gettmg a saleuy of Rs. 1250/- p.m. 3. The respondent No,3 approached fhe Additionril Labour Comjnissioner coinplaining about temnination wifh<wxt compfyii^ wifh the provisiaas of Scctfon 25-F of ibc Industrial \:T ^ V Disputes Act 1947 (which wfll be referred hcreiDafker <fhe Act 19473). Haviag faifed ia fhe conciliation pnx^sediiigs a report was submitted to fhe State Govenaiaent The State Govemment by order dated 21.8.2000 made a reference under Sectfon 10 (1) offbe Act 1947 to tfae Labour Court 4. The Respondent No.3 exaaiined him^lf as witness wherein he deposed fhat he was workiog as Mecbanic in tfae petitioner compaay fi»m 1.7.1996 till 30.8.1999. The Respondent No.3 further deposed fhat he wsus sent on several occasions to ofher cities for repairing and servicing and for fhat purpo^^ the petitioner was paid separately to him, He also deposed fhat he had worked for morc fhan 240 days m one calendar year. 5. The petitioner has filed written statement ia fhe Labour Court submitting fhat fhe Respondent No,3 was not regular employee of fhe petitioner, He was engs^ed fpr 20 to 25 days on fhe basis of fhe need of fhe work. The petitioner did not have any work for fhe Respondent No.3 as such fhe Respondent No.3 was not engaged ia service. 6. Mr. N. D. Joshi was pioduced aad examined by fhe employer/petitioner. This non-applicant witness in his statement has stated fhat the services of fhe Respondent No.3 was engaged on need basis. In his cross-examiaation fhe witness of fhe petltioner did not admit tfaat he has praduced any documents which indicates that fhe regular payments were made and his signature was obtamed, 7. Leamed counsel for fhe petitioner subinits fhat fhe Laboiir Court wifhout deciding the question as to "whether the Respondent No.3 was a worianaa/employee of tfae petitioae^Jfc company or not wifhia fhe provisk^is of tfae^ndustrial Disputes Act, 1947 y ha§passed the award. In support ofhis oontention learaed €x>ui»selfor the petitioner reUes on fhe decision of - Hon^ble Supreme Court m fhe case of Himanshu Kumm- Vidvarthi Vs. State of Bihar reported in 1997 (Ift M.P. Weeldv Notes (122) whercm Hon'ble Supreme Court has held fhat fhe temporary employee workmg on the basis of the necd of ffae work his disengagement caanot be termed as retrenchment zinder fhe provisions ofSection 25 -F offhe Industrial Disputes Act, 1947. 8. Leanied counsel for fhe petitioner also placed reliance on a decision of Hon^ble Supreme Court ia fhe case of Range Forest Officer Vs. S.T.Hadimani. rcoorted m (2002} 3 S.C.C. 25. m support ofhis contention fhat it is for fhe workmaii to prove fhe fact fhat fhe workmaa has actualty worked for 240 days i& a calendar year. The petitioner submits fhat fhe Respondent No,3 has not proved by submittuig receipt of salaxy or wages for 240 days or record of appomtment in order to show/establish fhat fhe workman ie. fhe Respondent No.3 has actualty worked for 240 days. 9. Leanied counsel for fhe Respoiident No.3 reUes on two decisions ofthe Hon^ble Supreme Court viz. ia fhe case of H. D. Siagh Vs. Reserve Baiikoflndia fi& ofhers reported ia AIR 1986 S.C. 132 and. ia fhe case of Worianen of American Exprcss Intemational Banking Corporation Vs. Maaagemeiit of ATnericaii Express Iiitemational Bankinc Corporatfon reported ia AIR 1986 S^C. 458; ia support of his subiaission fhat workmg for 20 - 25 days ia a monfh ineaiis working for the fufl 47^ monfh, because Sunday aiid ofher paid holidays should be taken ioito account for the purpose of reckomxig fhe total nuniber of days on whk?h fhe workman coiiM be said to have actually worked. 10. Having considered fhe contentions of learaed counsel for bofh fhe parties aad perusiag fhe records, it is found fhat there is no clear finding as to whefher fhe Respondent No.3 was regularly working i.e. 240 days in one calendar year fix>m fhe pericwi of his appointment tOl fhe date of the alleged oral tennination. Leanied lower Court has not considercd any ofher facts before reachiiig to fhe conclusion fhat fbe Respondent No.3 has worked for more fban 240 days ia one calendar year and it is apparcnt fhat fhe iinpi^gned award was passcd wifhout examining fhe relevant papera. Siace learaed Lower Court has not reoorded aoy findiGLg wifh regaid to fhe 'master aaid seryaat relationship^ aaid "workiog for 240 days in a catendar year?, before passiag fhe award in faivour of the RespoDdent No.3 grantmg rciastatement and pajrment of back wages. The award is not sustamable. 11. It appears fhat no stay of the operation ofthe impugiied award was granted. Learaed coiuisel for fhe petitioner subxmts tfaat / fhe petitioner has oflfered reinstatement as per the impugned award to the Respondent No.3 vide letter dated 28.8.2003 (Aimexxire P/10) but tihe same was declmed. Leamed counsel for fhe Respondent No.3 submits fhat fhe odffer was declined because fbe petitioner did not pay fhe back wages. 12. In fhe peculiar facts and circuiastaace of ^ie case, the petition is allowed and fhe case is rcmaxided back to the Labour Court •>^ !} Bflaspur on its origmal file for firesh disposal ia accordance wifh law. Since the inatter is old and iavolves aJQeged termiaatioa of service of an employee, fhe Labour Coiirt is dirccted to dispose of fhe matter wifhia a period of fhree monftis firom tiie date of rcceipt ofa copy offhis order, Sd/- Satish K. Agnihotri Judge