State Of Chhattisgarh v. Sukhdev Yadav

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (L) No. 5674 of 2011 State Of Chhattisgarh through the Divisional Forest Officer, Forest Division, District Kabirdham (CG) ---- Petitioner

Versus

Sukhdev Yadav S/o Jagannath Yadav, R/o Sahaspur Lohara, District Kabirdham (CG) ---- Respondent For Petitioner :

Mr. Rahul Jha, Govt. Advocate For Respondent :

Mr. Rakesh Thakur, Advocate Hon'ble Shri Justice P. Sam Koshy Order on Board 03/02/2021

1. The challenge in the present writ petition is to the award passed by the Labour Court on 25.09.2010 in Case No.110/ID Act/Reference/ 2008. Vide the said impugned award the Labour Court has allowed the reference in favour of the worker-respondent granting the relief of reinstatement without back wages.

2. The facts relevant for consideration of the present writ petition are that the respondent-worker in the present writ petition was working under the petitioner on daily wage basis since 1995 and continued to work with the petitioner till 31.12.1999 when abruptly the service of the respondent-worker was discontinued. The discontinuance of service of the employee was questioned by way of raising an industrial dispute, which ultimately stood referred to the Labour Court at Rajnandgaon where the case was registered as 110/ID Act/Reference/2008. After completion of pleadings, the Labour

Court vide its award dated 25.09.2010 answered the reference in favour of the respondent-worker granting the relief of reinstatement without back-wages. Subsequent to the award passed by the Labour Court, the respondent-worker in the instant case stood reinstated in service on 12.01.2011 and since then the respondentworker is till date working under the petitioner. 3.

Today, when the matter is taken up, learned counsel for the petitioner submits that the State Government themselves pending the writ petition have meanwhile reinstated the services of the respondent-worker vide order dated 12.01.2011. 4.

The challenge to the award is on the ground that the status of the respondent-worker substantially was that of a daily wage employee and that he had worked with the petitioner herein for a brief period of time that too only against availability of work, therefore, the Labour Court should not have entertained the dispute raised by the respondent-worker. The further contention of the petitioner-State is that the worker has not been able to produce substantial documentary prove to establish that he has worked for a period of more than 240 days continuously immediately before the discontinuance. On this ground also the Labour Court should not have granted the benefit of reinstatement. Another ground, which the State has raised in the present writ petition is that the Labour Court also ought to have rejected the reference on the ground of delay laches since the dispute was raised by the worker after a considerable period of time.

5.

Opposing the petition, learned counsel for the respondent-worker submits that now that the petitioner-State themselves have

regularized the services of the respondent-worker, the impugned order of the Labour Court should not be interfered at this juncture. He submits that by efflux of time, the worker has reached the age of around 51-52 years and just a few years of service is left for retirement. In case, at this juncture, the award of the Labour Court is interfered with or is set-aside, it may cause irreparable damage to the respondent-worker as also to his dependent. 6.

The further contention of the counsel for the respondent is that admittedly from the findings given by the Labour Court it stands established that there was engagement of the respondent-worker by the petitioner, and before discontinuance, the mandatory compliance as is required under Chapter-V of the Industrial Disputes Act has not been followed with, therefore, the finding of the Labour Court being a finding of fact does not warrant interference and there is hardly any scope of interference left for this Court under article 226 of the Constitution. 7.

Having gone through the record and particularly the findings which has come on record, it clearly reflects that so far as the petitionerState Government is concerned, they had not been able to disprove the documents which the worker had produced before the Labour Court establishing his engagement between the period 1995 to 1999. Admittedly, from the pleadings, it is established that there was no retrenchment compensation or any notice or salary in lieu of notice was paid to the respondent/worker before discontinuing of his service. Thus, apparently there is a clear noncompliance of the statutory requirement as is required under Chapter-V of the Industrial Disputes Act, 1947.

8. Perusal of the record would show that the award has been passed based upon the evidence which has come on record and the pleading would show that the worker got examined himself and also produced a witness who was an employee of the State department for proving the employment part.

9. On the contrary, the State i.e. the department in spite of repeated opportunity being given had not produced any evidence before the Labour Court to substantiate their contention or any rebuttal to the evidence led by the worker. Further perusal of the pleadings would show that the Labour Court has taken note of the various experience certificates issued by the officers of the State Govt. to the worker in respect of the service that he had rendered. Thus, this Court has no hesitation in reaching to the conclusion that the award passed by the Labour Court is in fact a finding of fact based upon sufficient cogent materials brought before the Labour Court by way of evidence.

10.

All the aforesaid factual matrix would clearly reveal that the finding of the labour Court was based on the evidence which has come on record led by either side. Thus, it is a finding of fact. 11.

It has been repeatedly held by the Supreme Court as also by the High Courts that finding of fact of the labour Court's should not be interfered as a routine, by the High Court while exercising writ jurisdiction. In exercise of writ jurisdiction this Court has only to see whether there is any perversity in the finding of the Labour Court or whether the finding arrived at is contrary to the evidence on record. In the instant case, there is no ground that the finding is a perverse finding. As regards the finding which has been provided and

discussed it clearly reflects that it is a finding of fact based on the evidence which has been adduced by the parties in dispute. 12.

It is also a settled position of law that under the writ jurisdiction, this Court would not interfere with the order passed by the Labour Court as if sitting as an Appellate Court particularly in a case under I.D. Act. The interference would be only to a limited extent whether there is perversity in the finding arrived at by the Court below or the Court has exercised its jurisdiction beyond the powers conferred upon it. The High Court can interfere with factual aspect only when it is convinced that the Labour Court has made patent mistakes in appreciating the evidence or the Court has committed a grave error in law in coming to its conclusions.

13.

The jurisdiction under Article 226 of the Constitution of India in examining the correctness of the order of the Labour Court was confined to errors in the decision making process and not on the merits of the decision itself. This Court does not find any infirmity in the decision making process warranting interference. 14.

The Supreme Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation [2010 (3) SCC 192] held as under:- "21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and /or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and others similar legislative instruments are social welfare legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of

the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:

'10. .... The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.'

(State of Mysore v. Workers of Gold Mines (AIR 1958 SC 923), AIR p.928, para 10.)"

This view has further been reiterated in the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Limited [2014 (11) SCC 85].

15.

The Petitioner-State through the present writ petition have failed to show either there being any perversity in the finding or the Court below having exceeded its jurisdiction. In the absence of the two, the finding arrived at by the Labour Court has to be accepted to be proper, legal and justified.

16.

In para 17 of (2014) 7 Supreme Court Cases, 190 (Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India & Another), it has been held as under:- "17........At the time of their disengagement even when they had continuous service for more than 240 days (in fact about 3 years) they were not given any notice or pay in lieu of notice as well as retrenchment compensation. Thus, the mandatory precondition of retrenchment I paying the aforesaid dues in accordance with Section 25-F of the ID Act was not complied with. That is sufficient to render the termination as illegal. Even the High Court in the impugned judgment has accepted this position and there was no quarrel on this aspect before us as well......"

Applying the same analogy and again reiterating the same in (2014) 7 Supreme Court Cases 177 (Bharat Sanchar Nigam Limited vs. Bhurumal), it has been held in paragraph- 27 as under:- "27.....In any case, the award is passed on the basis that the respondent had worked for 240 days in the preceding 12 months' period prior to his termination and therefore it is a clear case of violation of Section 25-F of the Industrial Disputes Act. The termination is, thus, rightly held to be illegal. We do not find any perversity in this outcome."

17.

Given the aforesaid reasons, particularly the fact that the petitioner State has complied with the order of the Labour Court and reinstated the respondent-worker w.e.f. 12.01.2011 and for last about 10 years respondent has been working with the petitioner, in the opinion of this Court, it would not be justified at this juncture to re-appreciate the entire evidences and take a different view than that has been taken by the Labour Court and which already stands complied with in due course of time. The law of equity also runs in favour of the respondent-employee.

18.

The writ petition accordingly stands dismissed. Sd/- (P. Sam Koshy) Judge Khatai