Shri Susanta Das v. The Divisional Forest Officer

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** MA/2/2023 Shri Susanta Das Vs.

The Divisional Forest Officer Mr. Gopala Binnu Kumar ... for the appellant Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondent March 12, 2024 [SR] Item No.13 Heard Shri Gopala Binnu Kumar, learned counsel for the appellant / petitioner and Shri Shatadru Chakraborty, learned counsel for the respondent.

This appeal has been filed praying to set aside the judgment and order dated 14.12.2022 in WPA/686/2022 (Shri Susanta Das vs. The Divisional Forest Officer) passed by the learned Single Judge, whereby the judgment and order dated 17.05.2022 in I.D Case No.09 of 2016 passed by the Presiding Officer, Labour Court, Andaman and Nicobar Islands, Port Blair, was affirmed and the writ petition was dismissed.

Learned counsel for the appellant submits that the learned Single Judge has erroneously recorded the finding that the appellant herein has completed 240 days continuous service in 12 calendar months prior to his disengagement on 31.03.2014. He submits that the Presiding Officer, Labour Court has merely referred to same judgments of the Supreme Court, but completely failed to appreciate the documentary evidence filed before it.

Learned counsel for the respondent supports the impugned judgment and order.

We have carefully considered the submissions of the learned counsel for the parties and perused the record of the appeal. The only question that has been raised before us by the learned counsel for the appellant/petitioner is as to whether the appellant/petitioner has completed 240 days continuous service in 12 calendar months prior to his disengagement on 31.03.2014. We have perused the judgment and order dated 17.05.2022 in I.D.Case No.09 of 2016 passed by the Presiding Officer, Labour Court, Andaman and Nicobar Islands, Port Blair. We find that on facts, the learned Presiding Officer has recorded the following findings:- " Perused the affidavit in chief of PW-1.

He stated he worked as DRM under Second Party from 2006-2014 and completed 240 days of work within 12 calendar months during 05/2006 to 04/2007 and he prayed before the Second party for giving continuous service but Second Party did not consider and he was allowed to work for spells of 4 months/ 6 months/ 3 months. In the affidavit in chief First Party did not state specific date for his retrenchment. He did not state that from which date he was not given employment. He did not state that he worked for 240 days of service in last calendar months just before his retrenchment/termination. He marked documents as exhibits. Ext.- 1 to Ext.-18 are such office orders for the engagement of First Party. The last Office Order is Office Order No.LS/660 dated 26.02.2014 from 1.03.2014 to 31.03.2014.

From the evidence and record and documents I find that Ext.-18, last Office Order which was for employment of First Party till 31.03.2014. In my considered opinion First Party must have worked till 31.03.2014. Moreover, Second Party did not dispute Office Order No.LS/660 dated 26.02.2014 from 1.03.2014 to 31.03.2014. I take the date of retrenchment as 01.04.2014. The 12 calendar months just preceding his retrenchment is from 01.04.2013 to 31.03.2014. I find only 03 Office Orders namely Office Order LS/475 (Ext-16) dated 22.11.2013 for engagement from 01.11.2013 to 31.01.2013, Office Order LS/606 dated 28.01.2014 for engagement of First Party form 01.02.2014 to 28.02.2014 (Ext.-17) and Office Order LS/660 dated 26.02.2014

(Ext.-18) for engagement of First Party from 01.03.2014 to 31.03.2014, which are relevant form 01.04.2013 to 31.03.2014. Second Party also produced documents related to the employment of First Party under petition filed on 09.03.2018. Perused the documents. The documents are 18 certified copies of Office Orders of various workmen including the First Party. As discussed above regarding Ext.-16, Ext.-17 & Ext.-18, the same were also placed on record by the Second Party. These three Office Orders namely Office Order LS/475 dated 22.11.2013 for engagement from 01.11.2013 to 31.01.2013, Office Order LS/606 dated 28.01.2014 for engagement of First Party from 01.02.2014 to 28.02.2014 and Office Order LS/660 dated 26.02.2014 are relevant for engagement of First Party from 01.03.2014 to 31.03.2014.

Ext.-16 reveals period of employment from 01.11.2013 to 31.01.2013. This is absurd. To my mind there is a misprint in the period of employment. It should have been 01.11.2013 to 31.01.2014. This Office Order is dated 22.11.2013. Such instances are prevalent that the Office Order is issued/dated after the start of period of employment. For example Ext.-15 is dated 23.03.2012 but the period of employment is 01.02.2012 to 31.03.2012. Then Office Order dated 29.12.2010 (Ext.-14) is for employment period from 08.12.2010 to 31.03.2011. Ext.-13 and Ext.-5 are Office Orders showing employment for around 02 months. Therefore, it is not that the office orders are only for one month employment period but it can be of more than one month period. Therefore, it is proved that the employment period under Ext.-16 is from 01.11.2013 to 31.01.2014. Making total days of employment of 92 days (November-30 days, December-31 days & January-2014-31 days).

Ext.-17 is the Office Order with employment period from 01.02.2014 to 28.02.2014 comprising 28 days. Second Party did not show any document that on which date First Party did not work. The Initial onus on the First Party is proved by Ext.-17 that is worked for days.

Ext.-18 is the Office Order dated 26.02.2014 for the employment period of 31 days. Second Party did not dispute this Office Order. Second Party did not disclose that on which date First Party did not work. I take 31 days of service under this Office Order. Nor Second Party disputed Ext.-16.

Therefore, total days of Service of First Party in the 12 preceding calendar months from date of retrenchment i.e., 01.04.2014 = 92 + 28 + 31 = 151 days.

Thus, the total number of days that the First Party should have worked for 151 days in the last preceding 12 calendar months from his date of retrenchment. Perused the crossexamination of PW-1. He stated actually he worked as he was given by his official to perform. He stated that the work was not a regular kind of job. Perused affidavit in chief of DW-I. It stated that First Party was engaged as DRM by the Second Party for specific seasonal work, he worked from 2006-2012 and did not compete 240 days service. The requirement of DRMs depends on quantum of work and seasonality or Forestry activities."

The aforesaid findings of fact, based on consideration of documentary evidence on record, have not disputed before us by the learned counsel for the appellant. No evidence whatsoever could be filed by the appellant/petitioner before the Labour Court to establish that he continuously worked 240 days in 12 calendar months prior to his disengagement i.e. on 31.03.2014.

The burden was upon the appellant/workman to proof this fact.

In Krishna Bhagya Jal Nigam Ltd vs.Mohd. Rafi (2006) 9 SCC 697, the Hon'ble Supreme Court has held that burden to prove that the workman worked for continuious period of 240 days in a year lies on the workman so as to entitle him to benefits of Section 25-F of the Industrial Disputes Act, 1947 (said Act, in short). The finding of fact as recorded by the learned Presiding Officer, Labour Court, as briefly reproduced above indicates that the appellant/petitioner has continuously worked only for 151 days in 12 calendar months just preceding to his last disengagement on 31.03.2014. Thus necessary condition of section 25-B of the said Act could not be fulfilled by the appellant/petitioner.

We also perused the impugned order of the learned Presiding Officer, Labour Court, Port Blair with regard to the availability of benefit of Section 25-F of the said Act to the appellant/petitioner. We find that the findings of the learned Presiding Officer, Labour Court on facts and in law with regard to Section 25-B and Section 25-F of the Industrial Disputes Act, 1947 do not suffer from any infirmity. The matter is concluded by finding of facts, this appeal has no merit.

The impugned order of the learned Single Judge does not suffer from any infirmity.

For all the reasons stated above, we do not find any merit. Consequently, the appeal is dismissed.

Pending application, if any, is also dismissed. (Surya Prakash Kesarwani, J.) (Kausik Chanda, J.)