-». -. 1 SSSSSW&8SSWi9SSSi SsiSIS3^^^SWSSs!MWsKWW '^SiWiSSSSSSSSKfiSSw^SSSS^SSSSiKWSSSSS^^ BjUM^gaBiaffisreEas^TasriiK-n-tS^^ ~3S^tf'rVTs HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 3500 of 1996 PETITIONER The State ofM.P. VERSUS RESPONDENT Bhairav Prasad Mishra r'/ .ri Post for order on ^'April, 2008. Sd/- Satish K. Agniho^ri Judge '^- HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENT WRIT PETITION No. 3500 of 1996 The State ofM.P. through : Executive Engineer, P.H.E. Division, Korba, Distt. Bilaspur (MP). VERSUS Bhairav Prasad Mishra, Ex. Pump Operator, R/o Village Pauna, Via Akaltara, Distt. Bilaspur (MP) WRIT PETITON UNDER ARTICLE 226/227 OF THE CONSTITUTION OF mDIA SB: Hon'bleShriSatish K. AgnjhotriJT. Present: Shri U.N.S.Deo, Govemment Advocate for the State/petitioner. Shri A.K.Shukla, Advocate for the respondent. ORDER (Passed on ..^^rdday ofApril, 2008) 1. The petitioner, State ofM.P. (Now Chhattisgarh) challenges the validity of the award dated 01.05.1996 (Aimexure P/l) passed by the Labour Court, Bilaspur, in case No. 105/I.D.A./90(Ref) whereby removal ofthe respondent from service was held as illegal and the petitioner was directed to reinstate the respondent with full back wages. 2. The uidisputable facts are that the respondent was engaged in the establishment of Executive Engineer, Public Health Engineering Division, Korba, as Pump Operator on daily wages basis at village Pauna, Tahsil and District Janjgir-Champa, in the year 1981. The services ofthe respondent was discontinued by oral order on 31.12.1988. The operation of the Pump for which the respondent was appointed,. was handed over to the Gram Panchayat, Pauna. Engagement of the respondent was for only three months during the summer season as seasonal daily wager, and for the remainiag 9 months, the services of the respondent was not required as operation of the Putnp was not necessary after onset ofthe monsoon., After amendment in the n.. -....' ~v~7=-:f ^ constitutional provisions, Panchayat Raj system was introduced in the year 1993. Thereafter, maintenance and regulation of Pump House was handed over to the concemed Gram Panchayat. Being aggrieved by discontinuation of service of the respondent, the respondent raised an mdustrial dispute before the Deputy Labour Commissioner, Raipur. The Deputy Labour Commissioner referred the dispute to the Labour Court.on 04.05.1990. The Labour Court, after having exammed all the aspects, came to the conclusion that the respondent has worked for more than 240 days before termination of his service and the respondent was not given any show cause notice or retrenchment allowance as provided under section 25F ofthe Industrial Disputes Act, 1947 (forshort 'IDA'). The Labour Court found that the services of the respondent was engaged from 1st of April to 30 June every year for operation of water pump. Accordingly, the Labour Court allowed the application and granted reinstatement with back wages on the ground that the retrenchment was illegal. Thus, this petition. Shri U.N.S.Deo, leamed Govemment Advocate appearing for the petitioner submits that the finding ofthe fact recorded by the Labour Court is contrary to the documents on record. The basic requirement to invoke provisions of section 25F of IDA is working for 240 days in the preceding year. The Labour Court has taken working of 240 days in the entire service. It is found that the services ofthe respondent was engaged from 1st April to 30 June during summer season. Ifthe total period are taken into consideration without any break, it would not be more than 90 days in the preceding year. The continuous service as defined under section 25B of IDA means 240 days in one calendar year. Admittedly, the respondent has not worked for more than 90 days m a particular year as seasonal daily wager. Thus, the finding ofthe i.£fsr J> ^^" .tt't'>-€ ^. '*?!>. Labour Court is perverse and provisions of section 25F would not be applicable in the present case. 5. Per contra, Shri A.K.Shukla, leamed counsel appearing for the respondent would submit that the petitioner was not a seasonal employee. He was appointed in the year 1981 and worked continuously upto 31.12.1988. Therefore, he worked for more than 240 days regularly. Since the petitioner was a regular employee, the petitioner is entitled to benefrts under the provisions of section 25F of IDA. The respondent was neither paid retrenchment coihpensation nor one month's notice in advance was issued to him. Thus, the order of the Labour Court is just and proper by holding that the retrenchment of the respondent was illegal. The petitioner was rightly directed to reinstate the respondent in service with full back wages. 6. I have heard leamed counsel for the parties, perused the pleadings and documents appended thereto. It is evident on the basis offindings recorded by the Labour Court th<^he services of the petitioner was engaged for a period ofthree months.from 1st ofApril to 30 June every year. Accordingly, m one calendar year, the respondent had worked for about 90 days and not 240 days, as required under provisions ofIDA. 7. Section 25B OfIDA defines continuous service that where a workman who is not in continuous service for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year ifthe workman during the period of 12 calendar months preceding the date with reference to which calculation is to be made has actually worked , under the employer for not less than 240 days. For a period of six months, if the workman during the six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer fornot less thaa 120 days. Section 25B ofIDA reads as under: "25B. DeHnition of continuous service. - For the purpose of this Chapter, - (1)a workman shall be said to be in continuous service for a period ifhe is, for that period, in uninterrupted service, including service which may be intermpted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation ofwork which is not due to any fault on the part ofthe workman; (2) where a workman is not in continuous service wit&in the meaning of clause (1) for a period ofone year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than - (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workinan, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than - (i) ninety-five days, in the case of workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. Explanation - For the purpose of clause (2), the number of days on which a workinan has actually worked under an employer shall include the days on which- (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, eamed in the previous year; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on matemity leave; so, however, that the total period of such matemity leave does not exceed twelve weeks.]" Section 25F ofthe IDA provides for condition precedent for retrenchment of a workman wherein condition is continuous service for not less than one year under the employer shall entitle workman to the benefits of one month's notice in writing and retrenchment compensation payable before retrenchment.-Continuous service for not less than one year under provisions of section 25F read with section 25B of the IDA means 240 days in the preceeding year. The Labour Court has not calculated the worfcing of 240 days in the preceding year but for the total period &om 1981 to 1988 and came to the conclusion that the respondent has worked for more than 240 days. This is conto-ary to well established principles of law. Thus, holding retrenchment as illegal, is not in aceordance with the provisions of section 25B and 25F of IDA. Thus, the impugned order is not proper and deserves to be set aside. 9. In the matter of Sui-endra Kumar Verma etc. v. The Central Govemment, Industrial Tribunal-cum-Labour Court, New Delhi and another , relied on by the leamed counsel for the respondent, the Supreme Court observed as under: "8....The provision appears to be plain enough. Section 25-F requires that a workman should be in continuous service for not less ^an one year under an employer before that provision ap]fflBs. While so, present S. 25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for aperiod ofone year, ifhe has actually worked under the employer for 240 days in the preceding period of twelve monfhs. There is no stipulation that he should have been in employment or service under the employer for a whole period oftwelve months. In fact, fhe thrust of the provision is that he need not be. That appears to be the plain meaning without gloss from any source." 10.. The case ofDeep Chandra v. State ofU.P. and another , relied upon by Shri Shukla, is not applicable to the facts ofthe instant case wherein the employee worked for more than 240 days in each year for several years. Thus, it was required to follow the procedure prescribed under section 25F ofIDA. 11. The case of P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar etc. , relied on by Shri Shukla, is also not applicable to the facts ofthe instant case as the same deals with payment ofback wages with reinstatement. AIR198t.SC~422 2'2001 AIR SCW 4862 (2) J 2001(1 )SLR (SC)&11 /" ^ .y:fy ,fifc "1'•"ta *;. ^ 12. In the mafter of Manager, Reserve Bank of India, Bangalore v. S.Mani and others , the Supreme Court observed that in law, 240 days of continuous service does not give rise to claim ofpermanence. In the facts ofthe present case, the respondent has not worked for 240 days of continuous service in the preceding year. Thus, the same is not applicable to the facts of the case, as cited by Shri Deo. 13. The case of Sonepaf Cooperatiye Sugar Mills Ltd. v. Rakesh Kumar , cited by Shri Shukla, is not applicable to the facts of the case as in the instant case the respondent ha's'admittedly not worked for 240 days in the preceding year. 14. In the matter of State of M.P. and others v. Arjunlal Rajak , cited by Shri Deo, leamed counsel for the petitioner, the Supreme Court observed as under: "6. It Tsbeyond any doubt or dispute that a daily-wager does not hold a post. The Forest Department is a wing of the State. Its employees hold a status. For acquiring that status and for obtaining the constitutional protection in terms of Article 311 of the Constitution, all appointments must be made in conformity with the constitutional scheme as laid-down under Articles 14 and 16 ofthe Constitution as well as the mles made in terms of proviso to Article 309 of the Constitution or in terms of a legislative Act. Concededly, while appointing the respondent, the constitutional provision or the statutory provisions had not been followed. The rights and liabilities of the parties are, therefore, governed by the terms ofthe contract and/or the provisions ofthe statute applicable in relation thereto. The respondent was not given any offer of appointment in writing. He admittedly worked in different departments of the State. His last posting was in the production division of the Forest Department in the district of Gima which as noticed above stood abolished. It is, however, tme that while terminating the services of the respondent the appellants had not complied with the mandatory requirements of Section 25-F ofthe Industo'ial Disputes Act and, thus, ordinarily, fhe workman could have been directed to be remstated with or without back wages, but it is also well settled that when a project or scheme or an office itself is abolished, relief by way of reinstatement is not granted." Sil M (200S)5SCC100 2006 (l)SLR(SC) 670 (200.®2 SCC 711 ^ ,?^s?: •^.^^ "^ •^^^;.^ . 'j.: Sv '''fe^"".f»' "'Sit^L-^'' 15. 16. 17. f6^y In the matter ofMunicipal Council, Sujanpur v. Surinder Kumar , cited by Shri Deo, the Supreme Court observed as under: "12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden ofproofto establish non- completion of 240 days ofwork within a period oftwelve months preceding the termination, was on the management. The burden was on tlie worfcman" In the matter of Surendranagar Distt. Panchayat and another v. Gangaben Laljibhai and others , cited by Shri Deo, the Supreme Court observed as under: "12. It was ,held iii all these eases that the burden ofprooflies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum ofbeing in employment ofthe employer." In view of the well settled dicta laid down by the Supreme Court in various cases relied on b^the parties fo the facts ofthe tnstant case, the respondent is not entitled to reliefunder section 25F ofIDA. The pre-condition required for benefif under section 25F ofIDA was not available as respondent admittedly had not worked for more than 90 days in pne calendar year. Thus, the impugned award is quashed and set aside. 18. The.petition is accordingly allowed. No order asto costs. SdA Satish K. Agnihotri Judge AlTtlf 7 (2006) 5 SCC 173 8 (2006) 9 SCC 132