^f y' /?-?<• ^ HIGH COURT OF CHHATTISGARH ATBILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA, & HON'BLE SHRI R.N. CHANDRAKAR. JJ Writ Appeal No. 139 of 2008 Appellant Respondent No.1 before the Single Bench Respondents Petitioner before the Single Bench Versus 1. 2. 3. Ashok Jadhav, S/o Shri Hanumant Rao, Aged about 52 years, R/o Seepat Road, Naya Sarkanda, Behind Ram Niketan Chall, Bilaspur, Tahsil & Distt. Bilaspur (CG) Nagar Panchayat, Through Chief Munidpal Officer, Ratanpur, Tahsil Kota, Distt. Bilaspur (CG) Chairman, Nagar Panchayat, Ratanpur, Tahsil Kota, Distt. Bilaspur Presiding Officer, Labour Court, Bilaspur, Tahsil & Distt. Bilaspur (CG) Present: Shri HB Agrawal, Sr. Advocate with Shri Somkant Verma, Advocate for the appetlant. Shri Manoj Paranjpe, Advocate for the respondents. ORALJUDGMENT (25tl1January,2011) Per Dhirendra Mishra, J The appellant filed statement of claim stating therein that he was appointed on the post of Time Keeper in May, 1992. His attendance was regularly recorded in the Muster Roll from the date of his appointment. Thereafter, his attendance was recorded in the Attendance Register w.e.f. 12.10.1992. However, he was disengaged from service vide oral order w.e.f. 30th August, 1995. Thereafter, the following dispute was referred to the Labour Court, Bilaspur for adjudication: "Whether removal of the appellant from services is legal and proper? Ifnot, then fhe relief which he is entitled for, and what direction should be issued to the employer in this regard?" 2. The learned Labour Court answered the reference in favour of the workman and held that the appellant's removal from service is illegal and improper, and the respondents were directed to reinstate the workman within 30 days with full backwages. 3. The employer filed a writ petition challenging the aforesaid award of the Labour Court. Learned Single Judge, by the impugned common order, allowed the writ petition and other connected writ petitions and set aside the award passed by the Labour Court. lu"-(^'... /^'~^.. \ 4. Shri HB Agrawal, learned Sr. Advocate with Shri Somkant Verma, Advocate appearing for the appellant, vehemently argued that in the instant case, the appellant was a daily wager employee, who was continuously employed by the respondents-Panchayat for a period of 2 1/2 years w.e.f. May, 1992; his attendance was recorded in the Attendance Register from 12.10.1992, however, he was disengaged from services by an oral order w.e.f. 30th August, 1995. Learned Labour Court passed an award of reinstatement with full backwages on the ground that the employer did not comply with the provisions ofSection 25F ofthe Industrial Disputes Act, 1947 (in short "the Acf) before disengaging the services of the appellant. However, learned Single Judge, relying upon the decision of the Supreme Court in the matters of Secretary, State of Karnataka and others Vs. Umadevi (3) and others reported in (2006) 4 SCC 1, held that the appointment of the appellant-employees was irregular, illegal and unconstitutional as the appointment was made without requisitioning names from the Employment Exchange and without inviting applications by advertisement from public at large and there was no selection by the competent authority. 5. Relying upon the decision of the Supreme Court in the matter of Satya Prakash and others Vs. State of Bihar and others1, it was argued that in Umadevi's case also, in para 53, the Constitution Bench has drawn a distinction between temporary employees, daily wagers and those who were appointed irregularly in the sense that there was non-compliance with some procedure in the selection process, which did not go to the root of the selection process. In the instant case, the reinstatement has been ordered on the ground of non-compliance of provisions of Section 25F of the Act as the appellant, who had put in more than 2 Vz years of service as daily wager, was disengaged from services without one month's notice or one month's wages for the period of notice, indicating the reasons for retrenchment and payment of retrenchment compensation, as provided under Section 25 A & B of the Act. The learned Single Judge has further observed in para 20 that the respondent/employee has neither pleaded nor adduced any evidence that he has worked for 240 days during the period of 12 calendar months, which is a precondition for holding retrenchment bad, though the appellant has pleaded that he continuously worked from May, 1992 till his services were disengaged on 30th August, 1995. The order of the Labour Court could not be set aside on the aforesaid ground, and the learned Single Judge ' (2010)48cc 179 "'k. """// "ry ^..^'J'V,^ ought to have remitted the mater to the Labour Court for fresh enquiry in this regard. 6. Repelling the contention of the respondents-employer that the appeal is not maintainable under Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (in short "the Act of 2006"),it was argued that after condoning the delay in filing appeal, vide order dated 15.1.2010, the appeal has already been admitted for hearing; the aforesaid order has attained finality and therefore, the respondents cannot be permitted to question the maintainability ofthe appeal at this stage. 7. On the other hand, Shri Manoj Paranjpe, learned counsel for the respondents, submitted that the impugned order was passed on 1 1th July, 2006, whereas the Act of 2006, which confers a substantive right of appeal, received presidential assent on 28th December, 2006, and came into force w.e.f. 6th January, 2007 after publication in the official Gazette. Reliance is placed upon the decisions of the Hon'ble Supreme Court in the matters of Maharaja Chintamani Saran Naith Shahdeo Vs. State of Bihar and others , State of Punjab and others Vs. Bhajan Kaur and others3, and T. Kalimurthi and another Vs. Five Gori Thaikal Wakf and others4, wherein it has been held that where any amending Act affects the substantive right of the parties, it would have prospective operation in the absence of anything in the enactment to show that it is to have retrospective effect. 8. It was further argued that from perusal of the statement of claim and evidence adduced by the workman before the forums below, it is evident that the workman has neither pleaded that he has worked for 240 days during the period of 12 calendar months preceding the date, with reference to which calculation is to be made, with the employer nor he has adduced any evidence to substantiate the same. However, the Labour Court without recording a finding that the workman worked 240 days, as provided under Section 25B/25F of the Act, proceeded to declare the termination order as bad for non-compliance of the provisions of Section 25F of the Act. The learned Single Judge has allowed the writ petition and set aside the order of the Labour Court with an observation that the Labour Court has committed a patent illegality in passing the award by ignoring the law and facts. AIR 1999 SC 3609 3 2008 AIR SCW 4073 42008AIRSCW8142 ..-^ 9. We have heard learned counsel for the parties. 10. Indisputably, the impugned order was passed by the learned Single Judge on 11th July, 2006, whereas the Act of 2006 came into force w.e.f. 6th January, 2007. It is also settled law that the provision of appeal under the Statute confers a substantive right to file writ appeat against any order passed by one Judgeof the High Court in exercise of jurisdiction under Article 226 of the Constitution before the Division Bench of the same High Court. In the instant case, the tearned Single Judge has interfered with the award of the Labour Court exercising jurisdiction under Article 227 of the Constitution and allowed the petition by setting aside the award dated 30th August, 1996. 11. In the matters of Maharaja Chintamani Saran Nath Shahdeo , the Supreme Court, while considering the principles with regard to the ambit and scope of an amending Act and its retrospective operation, in para 24 held thus: "24. This Court in Hitendra Vishnu Thakur Vs. State of Maharashtra, (1994) 4 SCC 602 : (1994 AIR SCW 3699 ; AIR 1994 SC 2623 : 1995 Cri LJ 517) has culled out the principles with regard to the ambit and scope of an amending Act and its retrospective operation as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by . necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (7'i^yA procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities orobligations or to impose - ^ new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but a/so creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication." 12. In Bhajan KauP also, it has been held that it is well settled law that a change in the substantive law, as opposed to adjective law, would not affect the pending litigation unless the legislature has enacted otherwise, either expressly or by necessary implication. The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be soconstrued as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. 13. The above proposition of law has been reiterated by the Supreme Court in T. Kalimurthi4, 14. That apart, the learned Single Judge, after carefully examining the pleadings of the appellant and evidence adduced in support of their pleadings, has arrived at a conclusion that there is no pleading that they have worked for 240 days and the Labour Court hurriedly, without following the precondition of holding retrenchment as bad, proceeded to declare the termination order as bad for non-compliance of the provisions of Section 25- FoftheAct. 15. Shri HB Agrawal, learned ,Sr. Advocate could not point out from the records that the workman, during a period of 12 calendar months preceding the date with reference to which calculation is to be made, has worked under the employer for 240 days, which is a condition precedent for setting aside retrenchment for non-compliance of the provisions of Section 25F of the Act. 16. On the basis of aforesaid discussions, we are of the opinion that the instant appeal preferred by the appellant has no substance; the same deserves to be and is, accordingly, dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge