© ^ £NTNE COURT QF JUDICATURE AT CHHATTZSGARH W.p. N0. ^^< OF 2003 Krlshi upaj ?vlandi Samltl Pandrl, Kapa Raipur PetJtSoner VERSUS RdVishankar Shrjvastavd RespQnuent S/Q Jagar'nath Prasad Shrlvastava Near Shltia Manujr, Hgndi pdi-a Ratpur / WRTT PETZTSON 22S/2 CONSTITUTION OF INDIA -&0 Af^ ^ HIGH COURT OF CHHATnSGARH AT BILASPUR Writ Petition No. 2001 of2003 Petitioner Krishi Upaj Maadi Saniiti Versus Respondent Ravishaalcar Shrivastava Single Bench : Hon'ble Mr. Justice Satish K. Agnihotri. Shri Goutam Bhaduri, counsel for fhe petitioner. Shri N.K. Vyas, counsel for fhe respondent ORAL ORDER (7th March, 2006) The undisputed facts of fhe case are that fhe respondent was appointed as Nakedar on daUy wages basis on 13.8.1984. The respondent continued to work on the basis of Nakedar without any break uiitil 13.1.1989. Service offhe respondentwas removed wifhout any notice or wifhout payiaent of retrenchiaent allowaace on 2.2.89. Leamed counsel raised the dispute before fhe Depuly Labour Commissioner, Chliatdsgarh Region, Raipur under Section 10 of the Industdal Disputes Act, 1947 (hereinafter referred to as aI.D. Act 1947W). The Deputy Labour Commissioner by his letter dated 27.1.90 referred fhe matter to fhe Presidiag OfiBcer, Labour Court, Raipur under fhe I. D Act 1947 on fhe foUowuig isszie :- ^hether removal of fhe respondent from service was vaUd and / proper ? if no what reUef he was entitled to and ia this respect what direction caa be issued to the eniployer ?^. The Laboiir Court, after haviag considered case of bofh fhe pardes, came to the conclusion that reiaoval of fhe respondent was iavaUd aa fhe same has been done as per Section 25-F offhe I.D. Act 1947. The © respondent was neifher given a notice nor paid rctrenchnient aUowance as contemplated under Section 25-F ofthe I.D. Act 1947. Accordiagly the Labour Court, by his award dated 25.2.2003, quashed the rexnoval order of fhe respondent aad directed fhe petitioner to reiiistate the respondent ia serurice with fuU back wages. Being ^grieved, the eniployer/petitioner has filed this petition under Article 226/227 of the Constitution of India on fhe ground fhat the appoiatnient of fhe respondent was de-horse Section 30 of fhe C.G. Krishi Upaj Maadi Adhuiiyaxa, 1972, which conteniplates prior saaction of fhe Director before creation of aay post. Learaed counsel for fhe petitioner states fhat fhe cominittee has taken decision to reniove the respondent frovi his service along wifh 90 other persons on the basis ofcircular dated 8.1.89 issued by fhe State Govermnent. Shri N.K. Vyas, learaed counsel appearmg for fhe respondent submits fhat the proviso to Section 30 of fhe C.G. Krishi Upaj Mandi Adhiaiyaai, 1972, conteinplates prior sanction of fhe Director, for crcation of fhe post not for appoiatraent on the post. The post of Nakedar was already created, fhe question is of appoiatinent of fhe respondent on fhe post of Nakedar, therefore, proviso to Section 30 of the C.G. Krishi Upaj Mandi Adhmiyam, 1972 wiU not be appUcable to the present case, where fhe dispute is not of creation of fhe post, but fhat of fhe appointaient of fhe rcspondent on fhe post of Nakedar already created earUer. Learaed counsel ftirther subinits fhat fhe circular dated 8.1.89 issued by the State Govemment cannot be made appUcable wifhout examiiaing each aad eveiy iadividual case, after giviag pn3per opportunity of hearmg. It is fiirther contended that almost all fhe persons removed along wifh the respondent have been reiastated/reabsorbed. 8. I have heard leamed counsel for fhe parties aad perused tiie records aad docuinents appended to fhe petition as weU as to fhe retum. 9. It is evident fhat fhe petitioner for fhe fii^t time raised fhe issue fhat fhe appouitment was de-horse fhe provisions ofSection 30 ofthe C.G, Krishi Upaj Mandi Adhmiyam, 1972. Even otherwise, this provision is not appUcable to fhe facts of fhe case as fhe issue iavolved is not the creation of the post, but appomtcaent ofthe respondent on the post of Nakedar. The circular issued by fhe State Goveraxnent cannot ipso facto be inade appUcable for rexnoval of the eniployees, who were appoiated prior to Deceniber, 1988. 10. The Labour Court has examined aU fhe aspects before coiniag to fhe conclusion fhat the order of removal was bad. 11. This Court, in exercise of its jurisdiction under Article 226/227 of fhe Constitution of India has Imiited scope to interfere wifh fhe fuidiiigs of fhe tribunal, iinless fhere is no evidence to record such fiiiduigs and there is peryersity or iafirmity ia fhe award. No perversity or infirmity has been poiated out by learaed counsel for fhe petitioner except fhat the appointnient was de-horse fhe proviso to Section 30 of fhe C,G. Krishi Upaj Mandi Adhiaiyam, 1972. 12. For the reasons stated above, it does not catl for any uiterference with titie irapugned award dated 25.2.2003 except that full back wages granted to fhe respondent is not based on aay facts. The Labour Court had not exaxnined as to whefher the respondent was entitled to 100% back wages wifhout aay work and further whefher fhe respondent was eraployed elsewhere gainftiUy. Lookiag iato the facts of ftie case fhat the respondent was einployee on daUy wages basis not agaiast any saactioned post. 50% back wages will be sufficient to subserve ends ofjustice. 4 13. The petition is accordin^gly allowed to fhe above extent to the efifect fhat the order of remstatement passed by fhe Labour Court is uphold aad fuU back wages be modi&ed to 50% back wages. No order as to costs. Sd/- Satish K. Agnihotri Judge Bablu