f, ^&o(- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR 1 PETITIONER ^ RESPONDENT ..<^ ^?.^ ^^y^'"^ ...^$^" 't'^- A^ Writ Petitioner No : 2^t/_g /03^" : Harilal Yadav S/0 Shri Netram Yadav, aged about 35 y .years, R/0 Village-Janji, '-' Distt-Bilaspur (C.G.) VERSUS 1. State of Chhattisgarh Water Resources Deptt Through-Chief Engineer Water Resources Department Raipur (C.G) 2. Chief Engineer Hasdeo Kachhar Water Resource Deptt Ghasiyapara Chowk Bilaspur (C.G) 3. Sub Divisional Officer Survey Water Resource Subdivision, Ghasiyapara Chowk, Bilaspur (C.G) Through - Incharge Officer Executive Engineer Kharang Water Resource Division, Bilaspur (C.G) 4. Presiding Officer Industrial Court, Chhattisgaph',' Raipur PETITION UNDER ARTICLE 226/22f7 OF CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITIO N0.2948 OF 2003 PETITIONER RESPONDENTS HarilalYadav Vereuss State of Chhattisgarh & Others Af^ Post for pronouncement of the order on s^ayofMarch,2010 Sd/- Satish K. Agnihotri Judge 1^.. @ HIGH COURT OF CHHATTISGARH : BILA8PUR PETITIONER RESPONDENTS WRIT PETITIO N0.2948 OF 2003 Harilal Yadav Versus State of Chhattisgarh & Others (Writ Petition under Article 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Jeet Patel, counsel for the petitioner. Shri Alok Bakshi, Govt. Advocate forthe State. ORDER (Delivered on this Sef^a\f of March, 2010) 1. , Challenge in this petition is to the order dated 5-9-2003 (Annexure - P/3) passed by the Industrial Court, Chhattisgarh, Raipur, in C.A. No.357/MPIR Act/A-11/2001 (Chhattisgarh State Water Resources Deptt. & Others v. Hari Lal yadav) whereby the appeal preferred by the respondents herein against the order of reinstatement with back wages granted by the Labour Court on 30-11-2001 (Annexure -- P/2) in case No.163/MPIR/97 (Harilal Vadav v. Water Resources Department, Govemment of Madhya Pradesh & Others)m favour ofthe petitioner herein, was allowed. 2. The indisputable facts, in nutshell, as projected by the petitioner, are that the petitioner was appointed as Amin against the permanent post in the year 1988. Thereafter, on 6-10-1996 the petitioner was removed from the service without affording an opportunity of hearing. Being aggrieved by the removal order dated 6-10-1996, the petitioner preferred an application before the Labour Court under the provisions of the Section 31 (3) of the MP/CG Industrial Relations Act, 1960 (for short "the Act, f960') on 3-10-1997 seeking quashment ofthe order of removal dated 6-10-1996 with consequential reliefs. The Labour Court by order dated 30-11-2001 came to the conclusion that the petitioner has worked continuously from 19^ till October, 1996 and the petitioner was removed from the service without assigning any reasons. It was further hetd that the petitioner has worked for more than 240 days during the period and the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short "the Act, 1947") was not comptied with. Accordingly, the removal order was hetd as illegal. Thus, the removal order was quashed directing reinstatement of the petitioner with full back wages. The respondents No.1 to 3, being aggrieved preferred an appeal before the Industrial Court. The Industrial Gourt, by order dated . 5-9-2003, after having considered the finding recorded by the Labour Court, held that the petitioner was terminated from the post of Amin on 8-4-1995. Thereafter, on his request, the petitioner was appointed as Dak-Runner on 1-12-1995 (Ex.D/1) and he worked up to 6-10-1996 when the impugned order of !; removal was passed. The petitioner has failed to establish that he has worked on the post of Dak-Runner continuously in the preceding calendar year for more than 240 days. The Industrial Court set aside the finding recorded by the Labour Court. Thus, this petition. 6. I have considered the rival contentions of the learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 7. It is not the case of the petitioner throughout that the petitioner was removed from the post of Amin on 8-4-1995. The same was not challenged. The petitioner has not referred about his appointment as Dak-Runner on 1-12-1995 and thereafter he continued as Dak-Runner up to 6-10-1996. The petitioner has sought quashment of the order dated 6-10-1996. Even the Labour Court has not considered the removal of the petitjoner earlier when it was the specific case of the respondents before the Labour Court that the petitioner was removed from the post ofAmin on one month's notice on 8-4-1995 and thereafter, bn his request he was appointed as Dak-Runner on 1-12-1995 and prior to completion of 240 days as Dak-Runner the petitioner was removed from the service by order dated 6-10-1996. 8. The Labour Court has not considered all the aspects of the matter in its letter and spirit before recording the finding that the petitioner has worked from 1988till October, 1996 as Amin. The Labour Court has further not considered asto whether the ,.$&^^ if '•^fe^ (S petitioner has worked for 240 days in one preceding catendar year. The finding ofthe Labour Court was that the petitioner had worked for more than 240 days during the period from 1988 till October, 1996 and there was no compliance of provisions of Section 25F ofthe Act. 1947. 9. The Industrial Court has examined the entire case at length and has rightly recorded the finding that the order of removal dated 8-4-1995 whereby the petitioner was removed from the post of Amin was never challenged. The finding of the Industrial Court that the petitioner has failed to establish that he had worked for more than 240 days appears to be just and proper. 10. The Supreme Court, in Sita Ram & Others v. Moti Lal Nehru Farmers Training Insfitute1, observed as under: "14. The question asto whether the burden of proof 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 Ud. v. llias Abdulrehman it was held: "8. A perusal ofthe 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 dtfferent departments of the appellant Corporation, be it field work or the work in the Chemistry Department, 1 (2008)58cc 75 @J he accepted the emptoyment and worked in these departments not in one place but at different places like Baroda and Mehsana. It has come on record that the management did try to accommodate the appellant in a permanent job but could not do so because of lack of quaHfications. In such circumstances we think that the Industrial Tribunal was justtfied in coming to the condusion 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 Inelian 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 purpose of counting 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 in dismissing the reference." (See also Range Fofest Offscer vs. S.T.Hadimani, R.M. Yellatti vs. Asstt. Execuffve Engineer, State of Maharashtra vs. Dattatraya Dingamber Briajcfar fSCC para 8 : Scale para G) and Ganga Kisan Sahkari Chini Milfs Ud. vs. Jaiveer Singh). 16. Although at one point of time, the burden of proof used to be placed on the employer, in view of a catena of recent decisions, it must be held that the burden of proof is on the workman to show that he has compteted 240 days in a year." 11. Applying the well settled principles of law to the facts, it appears that the Labour Court has misread and misconstrued the entire facts. Thereafter, it was misdirected to come to the conctusion that the petitioner has removed from the post of Amin on 6-10-1996, when the facts recorded are contrary to the record. The Industrial Court has rightly corrected the factual as well as legal perversity recorded by the Labour Court in appeal. 12. For the reasons mentioned hereinabove, the impugned order dated 5-9-2003 passed by the Industrial Court is unexceptionable warranting no interference. 13. In the result, the writ petition fails and is accordlngly dismissed. 14. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge Gowri