State Of Chhattisgarh And ORS. v. Mahendra Kumar Dwivedi And ORS
NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (L) No. 101 OF 2012
1. State of Chhattisgarh through Secretary, Public Works Department, Mantralaya Bhawan, Raipur (CG) (Petitioner no.1 was not a party before the learned Labour Court, but has been impleaded as petitioner no.1 herein as it is necessary to implead the State Govt. through the Secretary of concerned Department)
2. The Executive Engineer, Public Works Department, East Bastar Bijapur, District- Bijapur (CG)
3. The Superintending Engineer, Public Works Department, Bastar Circle, jagdalpur, District Bastar (CG)
4. The Engineer-in-Chief, Public Works Department, Govt. of Chhattisgarh, Raipur (CG) ... Petitioners versus
1. Mahendra Kumar Dwivedi S/o Ramniwas Dwivedi, R/o near Hanumand Mandir, Bijapur, District Bijapur, (CG)
2. The Presiding Officer, Labour Court, Jagdalpur (CG) ... Respondents For Petitioners :
Mr. Rahul Jha, Govt. Advocate For Respondent No.1 :
Mr. Sushil Dubey, Advocate.
Hon'ble Shri Justice P. Sam Koshy Order on Board 28/06/2021 1.
The challenge in the present writ petition is to the award dated 28.09.2010 passed in Case No. 10/I.D.Act/2009(Ref.) whereby the Labour Court, Jagdalpur has granted the relief of reinstatement without back-wages.
2.
The brief facts of the case are that the respondent no.1-worker was engaged as a daily wage worker under the petitioner-
establishment between 10th November, 1992 to 28th March, 2000 i.e. for a period of roughly 7 1⁄2 years. However, abruptly the services of the worker were discontinued and the said discontinuance from his employment was questioned by way of a dispute raised under the Industrial Disputes Act where the case was registered as Case No.10/ I.D.Act/2009(Ref.). After the pleadings were complete and the evidences were recorded on either side, the Labour Court vide its order dated 28.09.2010 answered the reference in favour of the worker to the extent of holding the discontinuance of service to be bad in law and accordingly ordered for reinstatement without backwages. 3.
The impugned award was passed on 28.09.2010 and it is stated by the learned counsel for the State that the worker has since been reinstated in service on 30.09.2011 itself and since then he has been continuously working under the petitioners. 4.
Learned counsel for the petitioners assailing the impugned order would submit that the Court below has committed an error of law inasmuch as it has not appreciated the contention of delay and latches raised by the department in its proper perspective. According to the counsel for the petitioners, the services of the respondent no.1 were discontinued in the year 2000 and he raised a dispute in the year 2009. As such, there is a delay of about 9 years in raising the dispute and no justified reason or explanation has been given by the respondent-worker for not raising the dispute within 9 years of time. Therefore, the reference should have been answered against the respondent-worker and thus prayed for the quashment of the award. 5.
However, learned counsel appearing for the respondentemployee opposes the petition on the ground that the award passed
by the Labour Court is a well reasoned and speaking order and the same does not warrant any interference. He submits that since the finding of the Labour Court is based on the evidence which has come on record, it would amount to the finding of fact which cannot again be interfered lightly by this Court. He further submits that the petitioners have not been able to show any perversity in the finding of the Labour Court and unless there is a perverse finding, the writ Court should not interfere with the order of the Labour Court. Thus, prayed for the dismissal of the writ petition.
6.
Having considered the rival contentions put forth by the counsel appearing on either side and on perusal of the record, so far as the first contention of the petitioners in respect of delay is concerned, the issue stands well settled by a catena of decisions of the Hon'ble Supreme Court starting from the case of Ajaib Singh v. Sirhind Cooperative Marketing-cum-processing Service Society Limited and another1, Gurmail Singh v. Principal, Govt. College of Education and others2 and Kuldeep Singh v. General Manager, Instrument Design Development and Facilities Centre and another3.
7.
In view of the aforesaid legal pronouncements of the Hon'ble Supreme Court, this Court does not find the issue of delay decided by the Labour Court as bad in law or perverse in any manner. So far as the order of reinstatement is concerned, there was a specific averment on the part of the petitioners themselves who had engaged the respondent on 10.11.1992 and this fact is not disputed, rather admitted. They have also admitted the fact that the respondent had continued in employment till March, 2000 which amounts to the (1999) 6 SCC 82 (2000) 9 SCC 496 (2010) 14 SCC 176
respondent-worker having put in service for about 7 1⁄2 years. This is sufficient to draw an inference that the respondent-worker must have worked continuously for a period of 240 days in a calendar year. In the given factual matrix of the case, if the Labour Court reaches to the conclusion that the discontinuance/termination of the respondentemployee is bad in law, the same cannot be held to be contrary to the evidence which has come on record.
8.
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 Authority particularly in a case under the Industrial Disputes 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 admitting evidence illegally or the Court has committed a grave error in law in coming to its conclusions. 9.
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. 10.
The Hon'ble 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 dutybound 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 Mines4, 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]. 11.
The petitioners 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.
12.
It is made clear that since the respondent-worker had not challenged his discontinuance in the year 2000 for a period of 9 years and admittedly during the said period he would be in employment, he may not be entitled for the benefit of continuity of service for the said 9 years of period, that is, between 2000 to 2009. 13.
This Court is also reluctant to set aside the impugned order of the Labour Court for the reason that pursuant to the award, the petitioner State Government reinstated the worker in service in the year 2011 and since then he has been continuously working. As such, she has by now put in service for almost 10 years after the award was passed.
14.
In this view of the matter, this Court does not find any strong AIR 1958 SC 923
case to be made out on behalf of the petitioners calling for an interference with the impugned award of the Labour Court and the writ petition being devoid of merits, the same is accordingly dismissed.
Sd/- (P. Sam Koshy) JUDGE Khatai