//1// IN THE HIGH COURT OF JUDICATUREAT BILASPUR (CG) w.P. (L) No. (9&9 /2010 PETITIONER Devsahay YadaV S/O Shri Bahorik Lal /: Yadav, aga about 40 years R/o Near Irrigation Colony, Thana—Darri, Distt. Korba (C.G.) VERSUS RESPONDENTS / 1. State ofChhattisgarh Through- Secretary, Water Resouces Dept. ( D.K"S. Bhawan, Raipur (C.G.) Executive Engineer Hasdav Barrage, Water Management Division Rampur, Korba (CG) 3. Sub. Divisional Officer Hasdav Barrage, Water Management Sub. Division Darri, Korba (C.G.) WRIT PETITEON UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA HIG H COURT OF CHHATTISGARH AT BILASPU R (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (L) No. 1949 of 201 0 Devsahay Yadav PR ETITIONE VERSUS RP ESONDENTS State of Chhattisgarh an others d Post for pronouncement of order on 2$§9201 Sd/- . Pritinker Diwaker w ~/ 0 < k (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (L) 'No. 1949 of 2010 9PETlTlONER Devsahay Yadav VERSUS RESPONDENTS State of Chhattisgarh and others Shrl S P Kaie counsei for the petitioner , Shri Vaibhav Goverdhan PL for respondents/Stat WRIT‘PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA O R D E R (.3.§T09.2010) Challenge in the present writ petition is. to the Order 24.12.2009 (Annexure P-1) passed by the Labour Court, Korb Case No. 11/IDA/2008 (Ref.) whereby the appiication filed by th petitioner under Section 10 (1) of the industrial Dispute Act, 1947 has w l r been dismissed. 2. Grievance of the petitioner is that though he was appointed as: }‘ iHelpier by the respondents on 1.4.1993 and continued in that capacit ill 31.1.1995 i.e. for more than 240 days and therefore wit ollowing the provisions of Section 25F ofthe industrial Dispute A y)” :t h f ct petitioner cannot be terminated. 3. Counsel for the petitioner submits that once the petitioner ha und’isputediy worked for more than 240 days, he is entitled for grant retrenchment compensation under Section 25F of‘th‘e “industri Dispute Act. He submits that the fact that the petitioner has worked for ‘ i 240 days is evident from page No 6 of the order impugned (Annexurai‘ i P 1) He submits that even the pornt of Section 25G of the industr Dispute Act has not been conSIdered by the Labour Court thoug h on : ia‘ i. h was raised by the petitioner as is clear from page No2 of t impugned order. He submits that the persons Junior to thepetiti z , Waiver e ., HIGH COURT OF CHHATTISGARH AT BILASPUR e d a_ e; t s. o 1?. a‘t -1_ have beenretained whereas while passing the order impugned th abour Court has not considered merits of the case and withou recording any correct finding the order impugned has been passed in c h S w ' the Subsequent judgment of the Apex Court in the matter of Ra Kumar v. State of Haryana reported in 2010 AIR SCW 897 wherei h d 2. The perusal of all these details clear/y shows that the appellant alone was singled out and discriminated. We have already noted the specific finding of the Labour Court that the appellant had fulfilled 240 days in a calendar year before the order of termination. ‘The appellant has also highlighted that he is the sole bread earner of his family and his family consists o his old mother, Wife and two minor sons and a mino daughter. The above-mentioned chart also shows that identical awards passed in the case of Mast Ram, Rajesh Paramjit and Amarjit was upheld by the‘High Court and the award in favour of the appellant alone was quashed by the High Court in the second round of litigation. Though, it was contended that the initial appointment was contrary to the recruitmentrules and constitutional scheme of employment. Admittedly, the said objection was not raised by the Department either before the Labour Court or before the‘High Court at the first instance. It was only for the first time that they raised the said issue before the High Cour when the matter was remitted to it that too the same was raised only during the arguments. In such circumstances, the High Court ought not to have interfered with the factual finding rendered by the Labour Court and in View of the different treatment to other similar/y placed workmen and Department ought not to have challenged the order of the Laobur Court. In addition to the above infirmities, the appellant has also pointed out that one Gurbax Singh who was engaged subsequent to the appellant on casual basis has challenged his termination order which was quashed by the Labour Court; interestingly the Department did not challenge the award of Labour Coun by filing writ petition. It was also highlighted b the—«appellant that on the basis of the award, Gurbax Singh was not only taken back in service but his services were regularized w.e.f. 01.07.2004. ryptic and casuai manner relying on the various decisions of t upreme Court as also this Court though not very relevant in Vie me as been hel as under: 1 We are conscious of the fact that an appointment on public post cannot be made in contravention o L " ‘ f r t y f #g._ recruitment rules and constitutiona scheme employment. However, in View of the materials pled before the Labour Court and in this Court we are satisfied that the said principle would not apply in the case on hand. As rightly pointed out the appellat has not prayed for regularization ,but only for reinstatement with continuity of service for which h‘ i legal/y entitled to. lt is to be noted in the case o termination of casual employee what is required to e seen is whether a workman has completed 240 days in the preceding 12 months or not. lf sufficient materials are shown that workman has completed 2 days then his service cannot be terminated witho giving notice or compensation. in lieu of it in term section 25F. The High Court failed to appreciate th in the present case appellant has completed 240 ys n the preceding a 12 months and no notice or compensation in lieu of it was given to him in such circumstances his termination was illegal] All th decisions relied on by the High Court. are not applicable to the case on hand mere particularly in view of the specific factual finding by the Labou Court. l of ac n e s f b 40 ut s of da at i e r t ounsel for the petitioner placed reliance on the decision of th ‘” “ ‘ee Court inthe matter of arjinder Singh . unjab ousing rporati reportd in 2010 AIR SCW 57 h it een held as under: ...Section 25-H then provides for re-employment of retrenched workmen. lt says that when the employer proposes to take into his employee any persons he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re— employment, and such retrenched workmen who offer themselvesfor re—employment shall have preference over other persons. Rules 77 & 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re—employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated, arranged _ according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-emp/oyment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to everyone of all the retrenched workmen eligible to be considered for re-employment. Shri.Pai. ontends that Rules 77 & 78 are unworkable unless he application of Section 25—H is confined to the C e? - 5: ~Suprm H v P S té I ‘ 3 Ware H Coon e 13 were has b c t ‘Q_ category of retrenched workmen to Whom Section 25- F apD/ies. We are unable to accept this contention Rule 77 requires the emp/oyer to maintain a seniorit list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. Category of workmen to ‘ whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not prevent any difficulty. Rule 78 speaks of retrenched workmen eligible to be Considered for filing the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higherthan those who do not fall in that category. It is ‘ no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re—emp/oyment earlier than those placed lower because of a lesser period of service. lN this manner a workmen falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workmen above him in the seniOrity list is not- available. Application of Section 25—H to the other retrenched workmen notcovered by Section 25—F does not, in any manner, prejudice those covered by Section 25—F because the question of consideration of any retrenched workmen not covered by Section 25—F would arise only, if and when, no retrenched workmen covered by Section 25—F is available for re—_ employment. There is, thus, no reason to curtail the ordinary meaning of ”retrenched workmen” in Section 25—H because of Rules 77 & 78, even assuming the rules framed under the Act could have that effect. The plane language of Section 25—H speaks only of re—employment of “retrenched workmen”. The ordinary meaning of expression ”retrenched wOrkmen" must relate to the wide meaning of ‘retrenchment’ given in Section 2 (oo) Section 25—H also uses the word ’retrenchment’ but qualifies it by use of the further words "workman...., who has been in continuous service for not less than one year”. , Thus, Section 25-F does not restrict the meaning of p retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words, “workmen..... Who has been in continuous service for not less than one year”. lt is clear that Section 25-F applies to the retrenchment of a workmen who has y —§. been In continuous serwce for not Iess than one year and not to any workman who has been In continuous serwoe for/ess than one year and It does not restrlot or curtail the meaning of retrenchment merely because the prom/on there/n Is made on/y for the retrenchment of a workman who has been in u I N continuous serVIce for not less than one year I I . Chapter V A deals With all retrenchments whl/e' I Sect/on 25—F Is confined only to the mode of retrenchment of workmen jn continuous service for not less than one year. Section 25—G prescribes the principle for retrenchment and applies ordinarily the principle of ”last come first do” which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section, 25-F”. " . 4. Counsel for the petitioner submits that in identical matter, L WR(L) NO. 2483/2010 this Court Vide Order dated 29.6.201Q allm‘IVed the petition and remanded the matte? back to the Labour with? a direction to consider and decide the case afresh‘ in the i e. h C 1 ig, the decision of the Supreme Court in the matter of Ramesh Ku‘m‘a (supra) and therefore this petition may also be allowed in the same terms. ‘ 5. : On the other hand counsel for the respdndents though admitd‘w ‘ that similar matter has been remitted back to the Labour Court vidd' V " ‘ ‘ ‘ order dated 29.6.2010 in W.P. (L) 2483/2010 yet he submits that it has i al: _ not been pleaded by the petitioner that his appointment was ma accdrdance with law after publication of advertisement or that his ‘na has ever been requisitioned by the employment exchange. He su that the petitioner has failed to prove the fact that his appointmenttiva made after any interview etc. and therefore the order impugned terminating the petitioner from service is just and proper. He submit that the Labour Court has also not considered anothe’r aspect of the case that the petitioner has approached the Labour Court after about 12 years of his termination and therefore on this count also the LabouJ ourt ought to have dismissed the application of the petitioner Replying to this submISSion of the counsel for the respondents it been submitted by the counsel for the petitioner that the po ... ‘ . r l d e b s .1. sljr" C T mt ha ~‘ . . mltatlon and the prOVISIon of Section 137 of the schedule of Llmltatl Act 1963 are not applicable to the proceedings under the prowsm lndustnal Dispute Act He submits that there are various deCISIo the Supreme Court to the effect that the pomt of limitation I applicable to the cases under the Industrial Dispute Act. 6. Heard counsel for the parties and perused the document vailable on record. ‘7. Applying the settled legal position cited above by the petition'er-t' the facts of the case in hand and also in View of the order passed ithis Court in W.P. (L) 2483/2010, this Court is of the consider pin'ion that the order impugned isliable to be quashed and accordingly quashed. Matter is remitted back to the Labour Court a direction to appreciate the evidence afresh and then pass the fr d b“ e vjo it w e award in the light of the decisions of the Apex Court in( the matter-: Ramesh Kumar and Harjinder Singh (supra). Parties would be at liber to ralse the pomt of limitation before the Labour Court/ Myer/y‘t t ’ / ,J/I /‘ (...(/ r Sdl- pvitinker Diwake‘ &/ h o n s ns i‘ a 0 t