^i In the High Court of Judicature of Chattisgarh at Bilaspur._ Wcit_ Petition No.^^/2002 Petitioner vs Respondents V/s Shivam Motors Pvt* Ltd., Sirgitti Industrial Estate Sector CABilaspur, Chattisgarh^ 1 State of Cha-ttisgarh through Secretary» RUnistrry of Labour, Raipur»Chattisgarh» Presiding Officer, Labour Court, •AgilS®pW,Chattisgarh <^^^, ^-^'^ ^\.<i-. <^/ '^>" >''.^.A^^^ .^^.pff"" Bilaspur, •y'^Jf^ 'Ram Verma son of Bona Ram Verma^ resident of Village Bodri, P.O.Chakarbhata, ^^ Fetition under Article 226/227 of Constitution of India. ^-^l^ ^ HIGH COURT OF CHHATTISGARH AT Biy^SPUR Writ Petition No. 1515 of 2002 M/s Shivam Motors Pvfc Ltd, -Versus- State of Chhattisgarh & ofhers Post for oider on 1st Juty, 2005. Sd/- Satish K. Agnihotn Judge a HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Ptetition No. 1515 of2002 M/s Shivam Motora Pvfc Ltd. -Versus- State of Chhattusgarh & oliiCTs Petitfoner by Shri S. M. Mcndhekar, Advocate with Shri G. V. Krishna Rao, Advocate. Respondent No. 1 by Shri Anin Sao^ Depuly Govt Advocate. Respondent No.3 by Shri Malay Kiunar Bhaduri, Advocate. ORDER (1.7.2005) Bv Justice Satish K. Affliihotd. 1. The present petition under Articte 226/227 of fhe Coiistituticm of India is fiiled against fhe awaxd dated 20.5.IX)02 passed by the Labour Court, Bilaspur in Case No. 58/LD.A./K-111-A/00 (Re^ whereby fhe Prcsidioig OflBcer of fhe Labour Court has dirccted fhe petitk>ner (second party) to reiastate fhe Respoudent No.3 (fiirst party) in fhe service on fhe post of Helper w,e.f. 31,8.1999 wifh fuU back wages and consequential x^Uef. 2, The facts io. nuteheU are fhat accordmg to the Respondent No,3 he was engaged/appointed by fhe petitk>ner as Helper in fais company on 1.10.1994. He confmupusfy worted i& fte petaioner-company for more fhan 240 days in one caleiidar year titt hus services were termmated orsdfy wifhout prfor notice on 31,8,1999, Whfle ia employment he was gettir^ a salaiy of Rs. 1150/-p.m. 3. The respondeat No,3 appioached fhe Additional Labour Coinmissmner com.plainuig about termiiiatfon witibiout comptying wifh fhe provisions of Secfbn 25-F pf fhe Industrial Disputes Act 1947 (wldch wiH be refferred heremafter <fl Act ^' 1947"). Having fedted in fhe conciliation proceedmgs a report was submitted to fhe State Govenmient The State Goveromeiit by order dated 21.8,2000 made a rcference umler Section 10 (1) offhe Act 1947 to fhe Labour Courfc 4» The Respondent No.3 examined himself as witoess whereia he deposed fhat he was worktt^ as Helper ia fhe petitioner company firom 1.10.1994 tiU 30.8.1999. The Respondeat No.3 further deposed fhat he was sent on several occasions to ofher cities for assigned job and for fhat purpose fhe petitioiier was paxl separately to hiia. He also deposed tiiat he had worked for inore fhan 240 days ia one calendar year. 5. The petitk>ner has £Bedwdtten stataneiit ui fhe Labour Court submittic^ fhat fhe Respondent No.3 was not legufar employee of the petitfoner. He was engaged for 20 to 25 days on fbe basis ofthe need offhe work. The petitioner cUd not have any work fixr the Respondent No.3 as such the RespondeDt No.3 was not engaged in servfce. 6, Mr. N. D, Joshi was produced and e?(amiiied by fhe employer/petitioner. This non-appUcant witaess m his statement has stated fhat fhe seryices of fhe Respondent No,3 was engaged on need basis. In bss cross-examiaatioti fhe witaess of fhe petitioner did not admit fhat he has pxxxluced any documents which indrcate fhat the rcgular paymente were made and his signature was obtamed, 7. Learaed oounsel for llie petitioner submits fhat tfae Labour Court wifhout decidiag fhe question as to <(whetitier fhe Respondent No,3 was a workman/employee of ffae petitfoner- company or not within fhe provisions of fhe Industrial Disputes n' Act, 1947 y has pas^d the award. In support ofhis contentfoxi leamed counsel for fhe petitfoner relies on fhe decisibn of Hon^ble Supreme Court in fhe case of Himanshu Kumar Vidvartfai Vs. State of Bihar reported in 1997 (IH M.P. Weddy Notes (122) wherein HonTale Supreine Court has held that the temporary employee w€»ldagon ffae basis of fhe need of Ifae work his disexigagemeat caanot be termed as retreiichment iinder fhe provisions of Section 25 ~F of fhe Indttstrial Draputes Act, 1947. 8. Leamed counsel for fhe petitioner also placed reliaaice 011 a decision of Hon'ble Supreme Court in tiie case of Raxige Porest Officer Vs. S.T.H»1i"*nni. reported m (20021 3 S.C.C. 25. in support of his conteiition tfaat it is for fbe workman to pxove tfae fact fhat fhe workman has actualty worked for 240 dsysia a calendar year. The petitioner submits tfaat fhe Respondeiit No,3 has iiot proved by submitting receipt of salary or wages for 240 days or recoid of appointnient ia order to show/establish fhat fhe workmaii ie. fhe Respoxident No,3 has actualfy worked for 240 days. 9. Leanied counsel for fhe Respondent No.3 iclies on two decteions offhe Hon^le Suprcme Court viz. in fhe case ofH. D. Sineli Vs, Reserve Bank of India & ofhera rcportol m AIR 1986 S.C. 132 aad, ia fhe €»seof Workmen of Americapi Exoress Intenaational Bankmg Corporation Vs. Mana^emeiit of American Express Interaational Baakin^ Corporation reported ia AIR 1986 S,C. 458; in suiyort of his submission fbat workiiig for 20 -QS days ia a manfh means wrorldng fbr fhe fiull monfh, because Sunday ao.d ofher psud holidays should be 4 •V4 taken into account for fhe puipose of reckoiimg liie total number of days on which fhe workman cx>uld be said to have actually worked. 10. Having considered the coatenttons of leanied counsel for bofh fhe parties and perusii^ the records, it is found tfaat ffaere is 110 clear finding as to whefher fhe Respondent No,3 wa®regularfy working ie. 240 days ia bne calcmlar year &om. fhe period of his appouitaient tiU fhe date of fhe aUeged oial termiiiation, Learaed lower Court has not considered axiy ofhcr fects before reachiag to fhe conclusion fhat fhe Respoiident No,3 has worked &>r morc tfaaa 240 days in one calendar year and it is apparcnt that tiae impugtied aeward was passed wifhout exaniming ©ffherelevant papers, Smce learaed Lower Court ^ has not recorded aay finding wifh regard to fhe €mastor and servant relationship> and <working for 240 days ia a calendar year?, beforc passmg fhe award ia favour of fhie Respoxident No,3 graxitm^ reinstatement and psyment of back wages. The awaid is not sustamable. 11. It appears fhat no stay of fhe opeiatfon offte ioipugned award was granted, Leamed counsel for the petitk>aer submite fhat the petitfoner has oflfered reiastatement as per fhe iiapugiied award to the Respondent No.3 vide letter dated 28.8.2003 (Annexure P/10) but fhe saine was dcclmed, Learaed counsel for fhe Respondent No.3 submits fhat the oflfer was decMned becaiMe fhe petitfoner did not pay fhe back wages* 12. In fhe peculiar facts and circumstaEice of tihe case, fhe petition is attowed aad fhe case is remanded back to tfae Laboiur Court Bflaspur on its onginal fde for fresh disposal ia accordaace witii law. Since the matter is old axid involves alteged tenxunation of service of an employee, flie Labour Court is dixccted to dispose of the matter within a period of fhree monfhs fix>m i3ae date o£ rcceipt ofa copy offhis oider. Sd/- Satish K. Agnihotri Judge