C , l oo - IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARH1 W.P.(L)NO. y^4 OF 2008 PETITIONER v :^^. ^ ^T.^.. .te ••'" Pramod Kumar Nirmalkar, S/o. Shri Devcharan Nirmalkar, Aged about 25 years, •q^cv^V^^3-^^/0. vmage-Lokhandi, Post - Mangla, NJ<^>^ 1... ' Distt. Bilaspur (C.G.) <v^ VERSUS RESPONDENTS / 1. Executive Engineer, •^^ Public Works Department^s3-r/.^ -^ .p^is^ion. -- Block No. 1, Bilaspur (C.G.) 2. Sub Divisional Officer, Public Works Department,('yr' /^f.j' —^^^No. 1, Bilaspiir (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OP INDIA /p%\ I 'vaSk! HIGH COURT OF CHHATTISGARH : BILASPUR PETITIQNER RESPONDENTS WRIT PETITION (L) N0. 7146 OF 2008 Pramod Kumar Nirmalkar Versus Executive Engineer & Another (Writ Petition under Article 226/227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Vinod Deshmukh, Advocate for the petitioner. Shri P.K. Bhaduri, Panel Lawyer for the State. ORDER (ORAL) (Passed on this 28th day ofApril, 2010) Heard learned counsel for the parties. By this petition, the petitioner challenges the legality and validity of the order dated 31-1-2008 (Annexure - P/1) passed by the Labour Court, Bilaspur, in case No.39/IDA/2006 (Ref.), whereby the reference made by the State Government has been answered in favour of the State and further held that the petitioner is not entitled to any compensation. The facts, in nutshell, as projected by the petitioner/employee, are that initially the petitioner was appointed as Labour in the respondent department w.e.f. 1-7-2000. Thereafter, his services were terminated by oral instructions w.e.f. 8-11-2005 without complying with the provisions of the Industrial Disputes Act, 1947 (for short "the IDA") and without assigning any reasons. Being aggrieved by the aforesaid action, the petitioner raised a dispute forsettlement before the Conciliation Officer, Bilaspur, in respect of reinstatement under the provision ofthe IDA. On fajlure of the conciliation proceedings, the State Government referred the dispute for its adjudication before the Labour Court, Bilaspur. After receipt of the reference, the Labour Court AP^ y%. ^' /• y/4. registered the case and notices were issued to both the parties i.e. employer and employee. The petitioner submitted his statement of claim stating that without complying with provisions of Section 25-G and other provisions of the IDA, he has been removed from the service. The respondent/employer has submitted its reply to the statement of claim filed by the petitioner. After hearing the parties, the Labour Court by order dated 31-1-2008 dismissed the claim of the petitioner and answered the reference in favour of the State. Hence, this petition. Learned counsel appearing for the petitioner submits that the petitioner is entitled to relief under the provisions of Section 25-G of the IDA, as the junior to him has been retained in service. The petitioner has made a specific averments in para 5 of the statement of claim to the effect that junior employee has been retained and the same is against the labour policy. In support of his contention, learned counsel placed reliance upon the decision of the Supreme Court rendered in Harjinder Singh v. Punjab State Warehousing Corporation . On the other hand, learned cpunsel appearing for the State submits that it is not necessary to file specific reply in the statement of claim, as the petitioner has failed to establish subsequently by examination of witnesses or other documents. The contention of learned counsel for the State deserves to be rejected on a simple ground that the establishment of an averment arises only when it is specifically denied by the opposite side. For want of denial of specific averment about violation of provisions of Section 25-G of the IDA, the statement of the petitioner to the effect that his junior has been retained, stands established. The Supreme Court in Harjinder Singh (supra), observed as under: 1 201 OAIRSCW 1357 "13....Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of 'last come first go' without any tangible reason. In Central Bank of India Vs. Satyam (1996) 5SCC 419 : (1996 AIR SCW 3138), this Court considered an analogous issue in the context of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis....." 8. The State authorities in its reply before the Labour Court have not rebutted the averments denying the fact that junior has not been retained, but it was stated that the labour policy has been followed and the specific reply has not been filed in this Court also. 9. The above stated issue with regard to compliance of provisions of Section 25-G of the IDA though was raised by the petitioner, but neither contradicted nor adverted to by the Labour Court. Thus, the impugned order dated 31-1-2008 (Annexure - P/1) is quashed. 10. In the result, the writ petition is allowed. However, having regard to the facts situation of the, the matter is remanded back to the Labour Court, Bilaspur for considering the above stated issue with regard to compliance of provisions of Sections 25-G and 25-H of the IDA after affording proper opportunity of hearing to the parties and pass appropriate orders, in accordance with law and on its own merits, as early as possible preferably within a period of three months from the date of receipt of a copy of this order. No order asto costs. 11. It is made clear that the observations, if any, made hereinabove shall not come in the way of decision of Labour Court. Gowri Sd/- Satish K. Agnihotri Judge