Divisional Forest Officer, Mayabunder v. Shri. Birsa Kindo

IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT PORT BLAIR ...

WPA/203/2019 Divisional Forest Officer, Mayabunder ... Petitioner Vs.

Shri Birsa Kindo ... Respondent Mr. Shatadru Chakraborty, Advocate ... for the petitioner Mr. Gopala Binnu Kumar, Advocate ... for the respondent December 10, 2021 [GNC] Item No.11 The petition is directed against an Award dated December 5, 2018 passed by the Labour Court in I.D. Case No.02 of 2008. Learned advocate appearing for the petitioner submits that there is a chequered history in the matter.

A reference was made to the Labour Court. The first Award of the Labour Court was assailed in a writ petition and was remanded. The second Award was also assailed and remanded. The impugned Award is subsequent to the second Award of the Labour Court. He draws the attention of the Court to the last order of remand dated April 13, 2017 passed in WP No.209 of 2015. He submits that the Labour Court failed to decide both the issues of the reference. In the present case, the Labour Court found that it was unable to consider the issue of Section 2(oo)(bb) of the Industrial Disputes Act, 1947. Therefore, again the impugned Award is incomplete and therefore the reference ought to be remanded to the Labour Court for a fresh decision. Learned advocate appearing for the respondent submits that it is not for the Labour Court to re-write the reference. In the facts of the present case, both the issue of the reference were answered by the Labour Court. In answering both the issue of

reference, the Labour Court found that the reference excludes the consideration of Section 2(oo)(bb) of the Industrial Disputes Act, 1947. In the facts of the present case therefore there is no infirmity in the impugned Award.

A reference was made in terms of the Notification dated October 4, 2007. The Schedule of reference is as follows:- "

SCHEDULE OF REFERENCE 1.

"Whether the Sundays fallen after absenting from duty during the particular week will be counted for computing 240 days of service?'

2.

"Whether the action of the employer the Divisional Forest Officer, Mayabunder in retrenching the service of Shri Brisa Kindo, S/o Shri Bandhana Kindo, R/o Attam Pahad, Garacharma, Port Blair from Daily Rated Mazdoor on completion of 240 days of service without following the provisions of Section 25-F of the Industrial Disputes Act, 1947 is legal and justified? If not, what relief the concerned workman is entitled to?"

Initially an Award was passed which was assailed before the Writ Court. The Writ Court set aside the Award of the Labour Court on the ground the same being incomplete. Subsequently, another Award was passed which was again assailed before the High court. The High Court by its order dated April 13, 2017 passed in WP No.209 of 2015 set aside the second Award and remanded the reference for fresh consideration. It was held that the second Award was incomplete as it did not answer the reference No.1.

Consequent to the order of remand, the impugned Award was passed. The impugned Award contains reasons. It discusses both the references. In respect of the reference No.1 it returns the finding that the workmen concerned worked for 257 days. It holds that Sundays fallen after absenting from duty during a

particular week will be counted for computing 240 days service. So far as the second reference is concerned it also answers the same by holding that the action of the Divisional Forest Officer in terminating the services of the workmen was neither legal nor justified.

Consequently, the Labour Court ordered setting aside the order of retrenchment of the workmen and directed reinstatement in the service with 25% backwages. It is the contention of the writ petitioner that the second reference was not decided by the impugned Award. In doing so, passage of the impugned Award was drawn to the notice of the Court where the Labour Court holds that the reference No.2 is such that it shuts the door of the provisions of Section 2(oo)(bb) of the Act of 1947 regarding exclusion of the scope of retrenchment. That observation of the Labour Court is not the same as the Labour Court failing to decide the second issue. It decided the second issue in the impugned Award and gave reasons for the same. It took a particular view with regard to the applicability of Section 2(oo) and 2(oo)(bb) of the Act of 1947 in the facts of the case. It returned the findings that consideration of Section 2(oo)(bb) of the Act of 1947 does not arise in view of the reference being framed as it stands.

In such circumstances, I find no infirmity in the impugned Award of the Labour Court warranting interference by the Writ Court.

WPA/203/2019 is dismissed.

(Debangsu Basak, J. )