IN TIiE ,HIGH COURT OP .TUDICAT [^i JA3AL3 ^^ \^x ^°//_<$\ ' • >, v^ 'Petitioner i'i'.P.No. /1997 Y Divisional Porest 0'£SSeBS^-s:f«y'^-.- ^~fy'Mzy:i^' Korba Division, Disttt>3ilasFQ?r."" ' -Versus-- 1. Sukalurara s/o Hahasukh, r/o Village Paudibahar, P.S. Rampur, Korna, •-'ilaspur. 2. Presiding "fficer, Labour Court, Bllaspur. ?ETIT].pNUNDER_ARTICLE 226/227 OF THE^:OI.?STITUTION^)^_rNDIA » .-•', »-! ^ ^s S (fr"i '** id s> >' s» .^ y 1\v^t -^% f!^^^^^^^^^^'.^^^^'^- ^^^^?-^^,^^^?^^^1^ •s:i,' ^ .gffi- ^..; 'v's^ S-- ••siKi" ^! ;"? •fm. -^l^ (•;- \ !" -i V. ,^'•1 Wa,." i^-r •< '•'"'". .^'^ ss ^" ' "'",- -. t;m HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS WRJT_PETITIQNNoJ_911 oH997 Divisional Forest Officer VERSUS Chamarin Bai & another. AF^ ^ Post for pronouncement ofthejudgment and order on ' 7 day ofDecember, 2009 Sd/- ~~~— sat'shK.Agn.-hotr, mOH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRITPETITIONNo. 1911 of 1997 » Divisional Forest Officer VERSUS Chamarin Bai & another. RESPONDENTS PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF LNDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri Y.S.Thakur, Deputy Advocate General for the State/petitioner. Shri Ashish Shrivastava, with Shri Harsh Vardhan, Advocates for the respondent No. 1. JUDGMENT ,ft (Passed on .../.... .day of December, 2009) The petifioner, Divisional Forest Officer, impugns the legality and validity ofthe award dated 30.08.1996 (Annexure P/4) passed by fhe Labour Court, Bilaspur in case No. 17/IDA/92(Ref), whereby it was held that the provisions ofsection 25F ofthe Industrial Disputes Act, 1947 (hereinqfter referred to as 'the IDA ') was not complied with and as such, the order of retrenchment passed b^ the petitioner was illegal, and accordingly, the petitioner was directed to reinstate the respondent No.l with full back wages. The facts, as projected by the petitioner, in brief, are that the original respondent No. 1 namely Sukaluram was engaged as Chowkidar in the year 1996 as casual labour with the petitioner as per the requirement ofwork. Sukaluram was a muster-roll employee, not appointed in accordance with the constitutional scheme of employment. His service was engaged in the forest depot. Sukaluram was never appointed as a regular employee so asto attract the provisions ofArticle 311 ofthe Constitution oflndia. Sukaluram was never m contmuous service. ^nn" 2 3. Shri Thakur, learned Deputy Advocate General appearing for the State/petitioner would submit that the Labour Court, witfiout considering all the facts held that Sukaluram was the employee of the petitioner for a period of 15 years, thus, completed 240 days. Accordingly, the impugned award directing reinstatement with fiill back-wages was passed on 30.08.1996 (Annexure P/4). This deserves to be quashed as being perverse and illegal. 4. Per contra, Shri Ashish Shrivastava with Shri Harsh Vardhan, leamed counsel appearing for the respondent No. 1 would submit that the respondent No. 1-Sukaluram died during the pendency ofthe writ petition and her sole legal heir i.e. the wife namely Chaiiiarin Bai was brought on record. Shri Shrivastava would further submit that Sukaluram continued in service till 1995 without any break. Since the respondent No. 1 was working continuously, he had completed 240 days. Thus, the award passed by the Labour Court is just and proper. 5. On perusal ofthe award, it is evident that firstly, no issues were framed and secondly, without recording the finding that Sukaluram had worked for 240 days in the preceding year, on the basis of statement of respondent- Sukaluram that he had worked for 15 years, it was held that there was non- compliance of section 25F of the IDA. Thus, reinstatement in service with full back-wages was directed, holding the retrenchment to be illegal. The leamed Labour Court has ignored completely the facts and law on the point that respondent-Sukaluram has not even pleaded that he had worked for 240 days in the preceding year. The averments of respondent-Sukaluram in statement of claims reads that he had worked for 15 years and as such, he has completed 240 days of service as required under section 25B of the IDA. Therefore, he may be reinstated in service. } 6. In flie written statement filed by the petitioner, it was clearly stated that there was no appointment order appointing Sukaluram as Chowkidar. His services was engaged in the year 1976 for work during the period from November to May as Chowkidar on daily wages basis. The services of the Chowkidar was required in the forest depot only during the period fi-om November to May, when the timbers were brought in and taken out from the forest depot. Therefore, no question of any notice or compliance of provisions ofsection 25F ofthe IDA arises. 7. Upon perusal ofthe pleadings and documents appended thereto and hearing of the parties, it is evident that the Labour Court has failed to record the finding that respondent-Sukaluram had worked for a period of 240 days in the preceding year. In absence of working of 240 days in a year, the provisions of section 25F of the IDA would not be attracted. There is no other evidence to indicate that respondent-Sukaluram had worked regularly when there is a specific pleading by the petitioner that the services of Sukaluram was engaged only for the period from November to May, when the timbers were brought in and taken out from the forest depot. 8. The Supreme Court, in Sita Ram & Others v. Moti Lal Nehru Farmers Training Institute , observed as under: "14. The question asto whether the burden ofproof was on the employer or on the workman is no longer res integra. It would be on the workman to prove that he had worked for two hundred and forty days in a year. However, where both the parties have adduced evidences, in most of the cases, the question would be academic. 15. In ONGC Ltd. v. Ilias Abdulrehman itwas held: "8. A pemsal of the evidence adduced by the workman himself shows that he went in search of employment to different places and whenever there was a temporary employment available in different departments of the appellant Corporation, be it field work or the work in the Chemistry Department, he accepted the employment and worked in these departments not in one place but at (2008) 5 SCC 75 different places like Baroda and Mehsana. It has come on record that the management did try to accommodate the appellant in a. permanentjob but could not do so because oflack ofqualifications. In such circumstances we think that the Industo-ial Tribunal was justified in coming to the conclusion that the number of days of work put in by the respondent in broken period, cannot be taken as a continuous employment for the purpose of Section 25-F of the Act, as has been held by this Court in Indian Cable Co. Ltd. We are aware that the judgment of this Court in Indian Cable Co. Ltd. was rendered in the context of section 25-G of the Act, still we are of the opinion that the law for the piirpose of coimting the days of work in different departments controlled by an apex Corporation will be govemed by the principles laid down in Indian Cable Co. Ltd. and the Industrial Tribunal was justified m dismissing the reference. " (See also Range Forest Officer vs. S.T.Hadimani, R.M. Yellatti vs. Asstt. Executive Engineer, State of Maharashtra vs. Dattatraya Dingamber Briajdar fSCC para 8 : Scale para 6) and Ganga Kisan Sahkari Chini Mills Ltd. vs. Jaiveer Singh). 16. Although at one point of time, the burden of proofused to be placed on the employer, in view of a catena ofrecent decisions, it must be held that the burden ofproofis on the workman to show that he has completed 240 days in a year." 9. Section 25F of the IDA provides for continuation of service for not less than one year under the employer, which shall entitle workman to the benefits ofretrenchment compensation or one month's notice in writing and retrenchment compensation payable before retrenchment. Continuous service for not less than one year under provisions of section 25 read with section 25B ofthe IDA means 240 days in the preceding year. The Labour Court has not calculated the working of 240 days in the preceding year but the total period from 1976 to 01.06.1991 and came to the conclusion that the Sukaluram has worked for more than 240 days. This is contrary to the well established principles of law. Thus, holding retrenchment as illegal, being not in accordance with the provisions ofsection 25F ofthe IDA is not proper and deserves to be set aside. -::3^ | '*,. ^- -;<>, '1', y^ ) 10. Applying the above well-settled principle of law to the facts ofthe present case, it cannot be held that it is a case of retrenchment covered under section 25F of the U)A as the respondent-Sukaluram has failed to prove that he had worked for more than 240 days in the preceding year. Even otherwise, the respondent-Sukaluram was a daily wager, not appointed through open competition in accordance with law and as such, the appointment was de hors the constitutional scheme of public employment. It is well settled law that an employment i.e. daily wager, temporary, adhoc etc. made de hors the constitutional scheme of employment is illegal, null and void. Thus, the respondent-Sukaluram has no right to reinstatement, continuation or regularization in service (See Secretary, State ofKarnataka & Others v. Umadevi (3) & Others and Official Liquidator v. Dayanand & Others). 11. Accordingly, for the reasons aforestated, the impugned order dated 30.08.1996 (Annexure P/4) is set aside and the petition is allowed. No order asto costs. 12. However, if any payment has been made to the respondent No. 1 either under the provisions ofsection 17B ofthe IDAur otherwise, the saine shall not be recovered &om the respondent No. 1. Sd/- Satish K. Agnihotri Judge Amit (2006) 4 SCC 1 (2008) 10 SCC 1