fc-S%-?^ ?FSS'ST2—-|- PAGE No.ie ^^ In the High Court of Judicature of Chattisgarh at Bilaspur, J^i_-fc__Peti_tio_n_ No , J-^x^/2002 Petitioner ?.7s Shivem Motors Pvt. Ltd., Sirgitti Industrial Estate Sector C/i Bilaspur, Chattisgarh^ vs ^ Respondents ; ^l Sta-be of .Chattisgarh through Secretary, AUnistrry of Labour, Raipur,Chattisgarh, Presiding Officer, Labour Court, Mlaspur» Chattisgarh lil Rao sonof B.T.Rao, resident of village Bodri> P.O.Chakarbhata,Bilaspur ^\y^?^s^cha'fctis9ar^' i .^% .^•,:^^'' ^y ^^-•- Petition under Article 226/227 of Cgnstitution of India. ^^ i. fe . BHaBnHna ^ ^l' HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 1513 of2002 M/s Shivam Motors Pvt Ltd. -Versus- State of Chhatti^arh & othera Post for order on lat Juty, 2005. Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATTISGARHAT^ILASPUR Writ Petition No. 1513 of2002 M/s Shhwm Motors Pvt, Ltd. -Vcrsus- State of Chhattisgarh & otfaers Ptetitioner by Shri S. M. Mendhekar, Advocate wifh. Shri G. V, Krishna Rao^ Advocate, Respondent No. 1 by Shri Arun Sao, Depuly Govt. Advocate. Respondent No.3 by Shri Malsy Kumar Bhaduri, Advocate. ORDER (1.7.2005) By Justice Satish K. Aeiiihotrl 1. The prcsent petition under Article 226/227 of fhe Constitution of India is fBed agaiast fhe award dated 20.5.2002 passed by fhe Labour Court, Bilaspur in Case No. 59/I.D.A./K-111-A/00 (Re^ whereby ftie Presidiag OfGicer of fhe Labour Court has directed fhe petifk>ner (second party) to reiastate fhe Respondent No.3 (first party) m. fhe sexvice on fhe post of Mechamc w.e.f. 31.8.1999 witfa futt back wagcs and consequential reUef. 2. The facts ia nuteheU are fhat according to fhe Respondent No.3 he was en^ged/appointed by fhe petitioner as Mechanic m. his company on l.l0<1994. He continuously worked ia tfae petitk>ner-compaay for morc fhan 240 days in one calendar year tiU liis seivices were termiaated oroSfy wifhout prior notk^e on 31.8,1999, Whfle in emptoyment he was gpttiag a salaiy of Rs. 1150/-p.m. 3. The respondent No.3 appioached fte Additional Labour Commissk>ner complamiag about termmation wifhout comptyiag wifh fhe provisions of Section 25-F of fhe hidustrial ^2-" Disputes Act 1947 (which wfll be referred hereinafter €fhe Act 1947'). Haviag fafled ia the concfliation pxoceedmgs a report was submitted to fhe State Govemment The State Goverament by order dated 21.8.2000 made a reference under Section 10 (1) offhe Act 1947 to the Labour Court. 4. The Respondent No.3 examined himsdf as witaess whereia he deposed fhat he was workmg as Mechamc in fbe petitioner company fiom 1.10.1994 tffl 30.8.1999. The Respoodent No.3 furfher deposed fhat he was sent on several occasioas to ofher cities for repairing and servfaAig and for fhat purpose fhe petitioner was paid separatety to him. He also deposed fhat he t^d worked for morc fhan 240 days in one calexidar year, 5, The petitiioner hsus fiiled written statement m. t3 Laboiir Cburt submitting fhat fhe Respondent No,3 was not regular eniployee of fhe petitioner. He was engaged for 20 to 25 days on fhe basis of fhe need oflfae work. The petitiouer did not haye any wwk fbr fhe Respondent No.3 as such fhe Respondent No.3 was not engaged ia service, 6. Mr. N. D, Joshi was produced and examined by fhe employer/petitioner. This non-applfcaat witatess ia his statement has stated fhat fhe services of llie Respondent No.3 was engaged on need basis, In his (xross-examination 'Qie witness of ffae petitfa>ner did not admit that he has pxoduced any documents which indicates fhat fhe regular payments were made aad his sigaatore was obtaitted, 7. Learaed counsel for fhe petitioner submits tihat fhe Labour Court without, decMmg fhe qucstion as to <<whefher tfae \ Respondent No.3 was a worlanan/employee of fhe petitioaer- € company or not wifhia tfajc pixwisions offte todiistrial Disputes Act, 1947 79 has (»ssedfhe awaxd, In support ofhfe <x>nteixtion leamed couiisel fbr fbe petitioner relies on fhe decision of Hon^ble Supreine Court in tfae <»se of Wi'nfirtshu Kuxnar Vidvarfhi Vs. State of Bihar rcported m 1997 flft M.P. Wccklv Notes (122) whercin Hon^le Supreme Court tias held fhat fhe temporary employee wortemg on fhe basis of <iie need of fhe work hAs disengagement caimot be termed as retrenchBient under fhe piovisions of Sectioii 25 -F of fhe Imiustrial Disputes Act, 1947. 8, Learaed €x>unsel for fhe petit&oner also plawd icHance on a decision of Hon^te Supreme Court ia fhe case of Range Forest OflEfcer Vs. S.T.Hadimani. reported ia (2002) 3 S.C.C, 25, ia support of hjte contention ffaat it is fbr fhe workmaa. to prove fhe fact fhat fhe woriaiian has actualty worked ifor 240 days in a catendar year. The petitibner submits tfaat fhe Respondeiit No,3 has not proved by submittmg re<^ipt of salaiy or wages for 240 days or recoid of appoi&tment in order to show/estabKsh fhat the worfcinan ie. tihe Respondent No.3 has actualfy woriteed for 240 days. 9. Leanied counsel for fhe Respondent No.3 relies on twro decMions offhe HonT)le Supreme Court viz. in tfae case ofH. D, Singh Vs. Reserve Bank of Ixidia & ofhers icported in AIR 1986 S.C. 132 and, ia fhe case of WorfaEDen of Amerfcan Express Intematfoiial Bacikmg Corporation Vs. Management of Americaa E^qpress Ixitematfonal BanIdiM Corporation reported m AIR 1986 S.C. 458; in support of his submission ttot workiag for 20-25 days ia a monfb meaiis working for fhe fufl A-' monfh^ because Sunday and ofher (^dd hoUdays stouM be taken inito account for fhe purpose of reckoDic^ fhe total xiumber of days OQ which fhe workmmi couM be said to have actually worked, 10. Haviag considered fhe coiitentions of teumed caunsel for bofh fhe parties axid penisixag fhe records, it»found ibst there is no clear fmdm.g sus to whefher fhe Respondent No.3 was regularty working ie. 240 days in one calendar year fix>m fhe perfod of his appouitinent fiU fhe date of ttie aUeged oial tenniaaatioxi. Learaed tower Court has not coasidered any other facte before reaching to the conclusion (hat fhe Respondent No,3 has worted for morc fhan 240 days io. one calendar year aod it is apparcnt fhat fhe impugaed award was passed wifh<Mit eyaminmg the relevaat papers, Siace learaal Lower Court has not recorded any fiinrling wifh regaid to fhe ^master suad servaat relationship^ and <workmg for 240 days ia a CTdemlar yeary, beforc passing fhe award in favour of fhe Respondent No.3 grRTiting rcinstateaieiit aad psyment of back wages* The aewaid is not sustamabte, 11, It appears that no stay <rf fhe operatioxi offhc impugDed awaxd was granted. Learaed oouasel for fhe petitioner submits fhat fhe petitioaer has oflfered reinstatement as per fhe impugaed awaid to fhe Respondent No.3 vide letter dated 28.8.2003 (Ajuiexure P/10) but fhe saxne was decliaed. Leamed couiisel for fhe Respondent No.3 submits fhat fhe offer was declmcd because fhe ^titioner did not pay fhe back wages. 12. In fhe peculiar fects and ciicumstcuice offfae case, the petitk>n te aBowed and fhe case is remanded back to fhe Labour Conirt r"-~-3- Bflaspur on its origiaal file for fi-esh disposal ia accoidaace wifh law. Siace the matter is old and involves afleged termniation of service of aa employee, fhe Labour Court is dirccted to dispose of fhe matter wifhia a period of fhrce monfhs fix>m fbe date of receipt ofa copy oftihjbs order» Sd/- Satish K. Agnihotri Judge