c ;ln,;fche High Court of Judicaturo of Chattisgarh _at jailaspuro - . • -i-b Petition Mo , J-S'l^ / 2CO 2 Petitioner M/s Shivam.iV;otors Pvt. Ltd., Sirqitti Industri'al' Estate Sector C^Bi.laspur, Chattisgarh^ Respon^ents ;^r State of Cha-fctisgarh throunh Socretary, AUnistrry of Labour, Raipur, Chatt.is r^arh, 2 ^Presidinq 0:ficer, Labour Court, Bilaspur, ChattxSQarh ^^V^^^Kand-KumarVerma,son of Bone Han \^^ \^% ^•^y{- ^^^^ ^y; ..^..-^-..—-^——-:^--- \>rma, resident of villciae Bodri, ^" P'0< Chakarbhat.a, Bilaspur,Chatt:i5.g3rh. Pe-tition under Article 225/227 of Constitution of Iriaia. © HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Ptetition No. 1516 of2002 M/s Shivam Motors Pvt Ltd, -Versus- State of Chhattisgarh & otliers ../-< Post for order on 1st Juty, 2005. Sd/- Satish K. Agnihotri Judge ^ HIGH COURT OF CHHATnSGARH AT BILASPUR Writ Pfetidon No. 1516 of 2002 M/s Shivam Motora Pvt Ltd. -Versus- State of Chhattisgarh & ofhers Petitioner by Shri S. M. Meiidhelrar, Advocate with Shri G. V. Krishna Rao, Advocate. Respondent No. 1 by Shri Arun Sao, Deputy Govt Advocate, Respoadent No.3 by Shri Malay Kumar Bfaadmi, Advocate. ORDER (1.7.2005) Bv Justice Satish K. Aeaiihotri, 1. The prcsent petition under Article 226/227 of fhe Constitiitk>n of India is filed a^iast fhe awaid dated 20.5.2002 pasMed by fhe Labour Court, Bilaspur in Case No. 60/LD.A./K-111-A/00 (Re^ whereby fhe Prcsiding OflBcer of fhe Labozir Court has directed fhe petitfoner (second party) to reittstate fhe Respondent No.3 (fibret party) ia fhe sendice on fhe post of Mechardc w.e.f, 31,8,1999 witli fuU baclc wages aod consequential reHef, 2. The facts ia nuteheU are that accordixi^ to fhe Respoudent No<3 he was engaged/appointed by fhe petitioner as Mechanic in his company on 1,4,1994, He confmuously worked in fhe petitioner-company for morc ibaa 240 days in oiie caleoidar year tiH his sewices were termmated oralty wifhout prior notice on 31.8.1999, Whfle ia empkxyment he was gettmg a salaiy of Rs. ll50/-p.m. 3. The respondent No.3 appiioached fhe Additioaial Labour Coinmissioner comiplauiing about termxnatfcon wifhout compfyix^ with fhe piovisibns ofSection 25-F offhe Imliigtdal Disputes Act 1947 (which wiU be referred hereiaafter <fhe Act 1947% Havmg fafled ia fhe coacfliatioxi proceediags a report was submitted to fhe State Goveiimient The State Govemment by order dated 21.8.2000 made a reference uader Section 10 (1) ofthe Act 1947 to fhe Labour Court The Respondent No.3 exammed hiiuself as witness wherem hc deposed fhat he was workmg as Mechanic in fhe petitioner company fi»m 1.4.1994 tiM 30.8.1999. The Respondcnt No.3 furfher deposed fhat he was sent on seveial occasions to ofher citfes for repairing aad senricmg and for fhat purpose fhe petitioner was psrid separatety to him, He also deposed that he had worked for morc fhan 240 days m oae catendar year, The petitioner has filed written statement in (he Labour Court submittiag fhat fhe Respondent No,3 was not regular eixiployee of fhe petitioner. He was eng^ed for 20 to 25 days on tfae basis offhe need offhe work. The petitioner did not have any woric for liie Respondent No.3 as such fhe Respondent No,3 wsus not engaged ia sendce. Mr. N. D. Joshi was produced and exaixiiDcd by fhe employer/petitioner, This non-applicant witaess in his statement has stated that fhe sennces of fhe Respondeat No«3 wos eugaged on need basis. In his cross-exaiaiasrtion fhe wituess of tihe petitk)ner did not admit fhat he has produced any documente which mdfcates fhat fhe regular paymcnts were niade and his sigoatiirc was obtau^d, Leamed coiinsel for fhe petitioner submits fhat fhe Latoour Court wifhout deciding fhe question as to <<whefher fhe Respondent No.3 was a workmaxi/eiDiployee of fhe petitioner- ^s?f?—e—- --r" '-T company or not wifhiD. fhe provisions of fhe Industrial Disputes Act, 1947 y has passed fhe award, In support ofhis contention leanied coiuisel for fhe petiffoner reHes 011 fhe decfeion of Hon^ble Supreme Court in fhe case of Hiinajishu Kumar Vidvartfai Vs. State of Bihar reported in 1997 (ID M.P. Weeldv Notes (122) wherein Hon^ble Suprexnc Court bas heM fhat ttie temporary emptoyee workmg on fhe basis of <&e iieed of fhe work his disengagement cannot be termed as retrenchment under fhe pnwisions of Section 25 -F of fhe Industrial Disputes Act, 1947. 8. Learaed counsel for fhe petitmner olao placed refiance on a decision of Hon^ble Supreme Court in the case of Range Forest Officer Vs. S.T.HnriimnTii, reoorted in (20021 3 S.C.C. 25. in support ofhis contentioii fhat it is ft>r fhe workmaa to prove fhe fact fhat fhe worianan has actualty worked for 240 days m a catendar year. The petitioner submits fhat fhe Respondeixt No.3 has not proved by submitting receipt of salaiy or wages for 240 days or record of appointment ia oider to show/establish fhat fbe workmaa ie. fhe Respondeiit No,3 has actualty worked fi>r 240 days. 9. Leanied counsel for fhe Respondeiit No.3 rel&cs on two decisions offhe HonTile Siipreme Court viz. m flie case ofH. D. Siadi Vs. Reservc Baak of India & ofhers reported ia AIRJL986 S.C. 132 and, in fhe case of Worknien of American Express Interoatfonal Banldpfi Corporatk>n Vs. Mana^emeiit of American Express Iiiteniational Banfcba^ CorporatiMi reported in AIR 1986 S.C. 458; ia support of h®submission fbat workmg for 20-25 doys ia a xnonfh means workmg for tihe fuU B^——-—^— •— -^ inonfh, because Sunday and ofher paid hoUdays should be taken iato account for fhe puxpose of reckoimig fhe total number of days on which fhe worianan couM be said to have actuaUy worked. 10. Haviag considered fhe contentk>ns of team^l <x>unsel for bofh fhe parties and penising fhe records, it is found tihat there is no clear fiTidmg as to whefher fbe Respondent No.3 was rcgularfy working Le. 240 days in one cafcndar year fiponi fhe period of his appointment tiU fhe date of fhe aUeged oral tCTmiaation. Learaed lower Court has not considered aay ofher faets beforc rcactung to fhe conclusion fhat fhe Respondent No,3 las worked for morc fhan 240 days m oive calendar year and it is appareat fhat fhe impugned awaid was pa^sed wiliiout exammmg fhe relevaiit papers, Siace leanied Lower Court has not reconled any finding wifh regaid to fte 'master aiid servant relationship> ao^d <workiiig for 240 days ia a calendar year^, before passing fhe award m favoiir of fhe Respondeiit No,3 grantiag reixistatemeat and payment of back wages. The award is not sustainable. 11. It appears fhat no stay of fhe operation of fhe mipugned award was granted. Leanaed (sounsel for fhe petitiioner submits fhat fhe petitfoiier has oflEered reinstatement as per fhe impugned award to fhe Respondent No.3 vide letter dated 28.8.2003 (Amiexure P/10) but fhe same was declined. Leamcd counsel for fhe Respondeiit No.3 submits fhat fhe oflfer was decHiied because fhe petitibner did not pay fhe back wa^s» 12. In fhe peculiar facts and circumstaoce of the case, fhe petition is aBowed aiid fhe case is remanded back to ffae Labour Court ^) Bilaspur on its onginal file for fi^esh disposal in accordaace wifh law. Siace fhe inatter is old aad iavolves aBeged termination of sendce of an employee, fhe Labour Court is directed to dispo^e of the matter wifhm a period of fhree monfhs firom tte date of receipt ofa copy offhis oider. Sd/- Satish K. Agnihotri Judge