Pradeep Kujur v. The Divisional Forest Officer
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE RAI CHATTOPADHYAY WPA/97/2022 The Divisional Forest Officer, Diglipur Forest Division Diglipur ... Petitioner
Versus
Shri Pradeep Kujur ... Respondent For the petitioner : Mr. Rakesh Kumar For the respondent : Mr. Gopala Binnu Kumar With WPA/51/2022 Shri Pradeep Kujur ... Petitioner
Versus
The Divisional Forest Officer, Diglipur Forest Division Diglipur ... Respondent For the petitioner : Mr. Gopala Binnu Kumar For the respondent : Mr. Rakesh Kumar Heard on : 24.11.2025 Judgment on : 28.11.2025 RAI CHATTOPADHYAY, J.
1.
In the two writ petitions being WPA 51 of 2022 and WPA 97 of 2022, the same Award of the learned Labour Court has
been assailed, that dated December 15, 2021 in ID/IT Case No.08 of 2008 [herein after referred to as the "said Award"]. 2.
The "Schedule of Reference" may be mentioned here: "Whether the action of the employer the Divisional Forest Officer, Diglipur, North & Middle Andaman in retrenching the service of Shri. Pradeep Kujur, S/o. Shri Joseph Kujur, R/o. Madhyam Gram, Diglipur, North Andaman from Daily Rated Mazdoor on completion of 240 days of service without following the provisions of section 25F of the Industrial Disputes Act, 1947 is legal and unjustified? If no, what relief the concerned workman is entitled to?"
3.
The learned Labour Court has found the termination of the petitioner in WPA 51 of 2022 [herein after referred to as "the workman"] as illegal because of non-payment of retrenchment compensation and notice pay as mandated under section 25F of the Industrial Disputes Act, 1947. Upon such finding the learned Labour Court has further found that the said workman would not be entitled to reinstatement and the back wages. It has finally directed that the said workman would be entitled to the compensation to the tune of Rs.25,984/-. This Award of the Labour Court has been challenged by the petitioner in WPA 51 of 2022 [herein after referred to as the "said employer"] and the workman as well.
4.
The employer has been represented by Mr. Rakesh Kumar, Learned advocate. His first contention is that the petitioner, being a contractual appointee, would only be governed by the terms and conditions of the contract and his service is co-terminable with the contract itself. That service of the workman he being appointed in a temporary or seasonal nature of job is required only for a limited period of time in a year. Hence, he has been appointed and his service has been later on extended only for the limited time period. He says that in this way the said workman cannot be held to have worked with the said employer, for 240 days continuously, in a year. According to Mr. Rakesh Kumar, finding of the Labour Court to that extent is only erroneous.
He submits that the workman's case is actually covered under the provision of section 2(oo)(bb) of the Act of 1947, which according to him, the Labour Court has erred in considering in a due manner. By referring to certain documents, Mr. Rakesh Kumar, has made endeavour to demonstrate that the said workman has not actually worked for 240 days in a year and the Labour Court's findings as regards the same is also wrong.
said employer would be mandatory is not based on the records and evidence before the Court, hence perverse and not maintainable. He has submitted that the petitioner's service is automatically to terminate after the contract period ends. Hence, here in this case, no illegality has taken place at the instance of the said employer, as alleged.
5.
To buttress his argument, Mr. Rakesh Kumar, learned Advocate has relied on the judgments of Hon'ble Supreme Court in (i) Bhavnagar Municipal Corporation - versus - Salimbhai Umarbhai Mansuri reported in Civil Appeal No. 5498 of 2013 (arising out of SLP (C) No. 5387 of 2012) and (ii) Mohd. Ali - versus - State of H.P. and Others reported in Civil Appeal No. 3803 of 2018 (arising out of Special Leave Petition (C) No. 19160 of 2015). Mr. Rakesh Kumar, learned advocate has further emphasized about the alleged belated approach to the Labour Court, by the said workman, which according to him, is fatal for the workman as the delay has occurred without sufficient reason or explanation. According to the employer this aspect has also escaped attention of the learned Labour Court. However, he says that the long and unexplained delay of 5 years and 9 months of the workman to approach the Labour Court, ought to have been considered against the workman by rejecting his claim. Since, instead of
rejecting the claim of the workman on the ground of inordinate and unexplained delay the learned Labour Court has faouvred him with an Award of compensation amount, the employer is aggrieved and has filed the instant writ petition. Mr. Rakesh Kumar, learned advocate has insisted that the Award dated December 15, 2021 in ID/IT Case No.08 of 2008 to be set aside. 6.
Mr.
Gopala Binnu Kumar, learned advocate has represented the said workman. Regarding submissions of Mr. Rakesh Kumar, learned advocate for the employer, he has raised strong objections. His first submission is that section 2(oo)(bb) of the Industrial Disputes Act 1947 shall have no manner of application in case of the present workman. Instead, the case of the workman would be covered under the provisions of section 25B of the said Act, section 25B(2)(a)(ii) - to be precise. He submits that the workman has discharged a perennial nature of job which cannot be clothed with a fictional temporary veil. Furthermore, according to Mr. Gopala Binnu Kumar, the employer, in order to strengthen its case before the Court has subsequently changed the stand, which it has never pleaded before the Labour Court. In this regard, he has referred to the pleadings of the employer before the learned Labour Court and also to the judgments of Supreme Court in (i) Workmen of American Express International Banking
Corporation - versus - Management of American Express International Banking Corporation reported in 1985 4 SCC 71, (ii) State of West Bengal and Another - versus- West Bengal Registration Copywriters Association and Another reported in 2010 (1) SCC (L&S) 315, (iii) State Bank of India and Others - versus - Bidyut Kumar Mitra and Others reported in 2011 (2) SCC 316 and (iv) Krishnan Singh - versus - Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) reported in 2010 (3) SCC 637. He says that as per ratio of the decision of Supreme Court as above, a party is not allowed to improve his case by incorporating new grounds at a later stage.
He says that continuous service of the said workman for more than 240 days in a year, is an admitted stand of the employer from the very inception, which it may not be allowed to change at this stage. Mr. Gopala Binnu Kumar, has submitted further that the Labour Court in the impugned Award has recorded a specific finding regarding illegality of termination of service of the workman by the said employer. In that event, he says, that the Labour Court ought to have been passed a direction for reinstatement of the said workman with full back wages.
Court as illegal, unless there is any exceptional circumstances found. According to him, no such exceptional circumstance has either been proved or even pleaded by the employer before the learned Labour Court. To buttress his arguments, Mr. Gopala Binnu Kumar, has referred to a judgment of Supreme Court in this regard, in Surendra Kumar Verma etc. - versus - The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another reported in 1980 4 SCC 443. 7.
Mr. Gopala Binnu Kumar, has submitted further that the Labour Court is not empowered to travel beyond the scope of the "Schedule of Reference" and shall adjudicate a dispute only within the four corners thereof. Hence, the argument put forth by the employer that the workman would be covered under section 2(oo)(bb) of the Act of 1947, does not hold ground at all, in view of the said "Schedule of Reference".
8.
As regards the challenge put to the Award on the ground of delay, he has distinguished the judgment relied on by the employer on the basis of difference in the factual background of the two cases. He says that in the said judgment the workman has committed delay in approaching the conciliation officer, whereas in this case the reference has been made after a long gap of time, due to the proceeding being pending before the statutory authority before reference thereof. According to him,
the delay if any is not attributable to the workman, as alleged. He has submitted further that scope of judicial review of the fact finding learned Labour Court is very limited, only to the extent if there is any patent illegality in the decision or if any procedural irregularity exists or not. That there is not any scope of reappreciation of evidence by the writ Court, in exercising power of judicial review. Mr. Gopala Binnu Kumar, has submitted that the employer intends the Court to re-appreciate the evidence, which is not permissible under the law, whereas according to the workman, there is patent illegality in the impugned Award, which calls for appropriate remedy and order by this Court. Hence the workman has prayed for in his writ petition that consequent to the finding of the Labour Court that his termination of service is illegal, let he be granted with the order of reinstatement with full back wages.
9.
The workman has been appointed on January 1, 1997, for the stipulated time period. His service has been extended from time to time. He has been terminated on July 12, 1998. The employer says that since these office orders issued to engage and reengage the workman contain a clause that the workman's service shall stand terminated after expiry of the said stipulated period or at any time when not required without advance notice, the said employer would not be required to follow the provisions
or mandates under the Industrial Disputes Act 1947, to terminate a workman, those under section 25F thereof in particular. Its specific emphasis is to the provision under section 2(oo)(bb) of the said Act, which contemplates automatic termination of workman after seizure of the contract period. 10.
Admittedly the workman has been a temporary appointee, whose service has been extendable and extended from time to time. In this context it is necessary that provision under Chapter- VA be referred to, which has provided for 'Layoff and Retrenchment'. Section 25B under Chapter- VA of the Industrial Disputes Act 1947 has provided the definition of 'continuous service', which may be referred to here as bellow: "25B. Definition of continuous service.-For the purposes of this Chapter,-
(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days in the case of a workman employed below ground in a mine;
and (ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case.
Explanation.-For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which- (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks."
11.
Section 25B (1) of the Act of 1947 has provided that both the uninterrupted service and the service interrupted with the causes as specified therein, shall be treated as the continuous service of a workman. Amongst those, service of a workman interrupted for no fault on his part, is one of the grounds or reasons, for which a workman's service ought to be treated as a continuous service, within the contemplation of the said
provision of law. A deeming provision is made in section 25B(2)(a)(ii) of the Act of 1947, that a workman who is not in continuous service due to no fault of him, should be deemed to be so for one year, under an employer, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than two hundred and forty days.
12.
It is a matter of fact, concern and due consideration that in the letter of the Divisional Forest Officer, Diglipur, dated June 21, 2006, the sender writes to the Assistant Labour Commissioner, Rangat, that the workman has worked from January 1, 1997 to July 14, 1998, in different camps, to discharge different types of duties. That the workman has been in continuous employment for more than 240 days in a year. The employer has maintained this stand before the Assistant Labour Commissioner as well as the learned Labour Court. Question is whether in the instant writ petition the employer can come up with a new plea altogether, that the workman has not discharged 'continuous service' within the periphery of the statutory provision, by producing evidence of actual works done for continuous 240 days in the year previous to the concerned date.
days in a year to find the period of 'continuous service' in accordance with the law and change of the initial stand taken by the authority amounts to improving his case, which is prohibited under the law.
13.
Another judgment of the Supreme Court may be mentioned in Haryana State Co-operative Supply Marketing Federation Limited vs Sanjay, reported in (2009) 14 SCC 43, where the Court has found that the section aims to mitigate hardships faced by workmen whose service may be intermittently interrupted but who, in substance, have served for a substantial period under the employer. According to another Supreme Court judgment in Divisional Manager, New India Assurance Co. Ltd vs A. Sankaralingam, reported at 2008 10 SCC 698, the Court has upheld the proposition that part-time employees or those with intermittent service can benefit from these provisions, if they meet the criteria, including the existence of a contractual relationship.
14.
According to the law as settled, such interruptions, when caused by circumstances beyond the workman's fault, are to be ignored for the purpose of determining 'continuous service'. The law aims to prevent technicalities from depriving workmen of their statutory rights, especially where their overall period of service under the employer is substantial, despite intermittent breaks. Judicial pronouncements clarify that this section is intended to benefit workmen who, despite not working continuously every day, have maintained an ongoing contractual relationship and have worked a substantial number of days in the relevant period.
15.
Needless is to iterate here that the finding of the learned Labour Court as regards existence of subsisting contract of employment between the employer and the workman during the period of previous twelve months from the relevant date, is based of facts duly proved before it on evidence. The last extension of the contract period was from April 1, 1998 to August 31, 1998 [as per page No.100 of the paper book/ an Office Order dated April 24, 1998], during continuance of which, the petitioner's service has been terminated on July 12, 1998. Furthermore, the fact of continuous service by the workman for more than 240 years in a year, has not been denied but admitted by the employer, earlier before the competent statutory authority as well as the learned Labour Court. Therefore, by the fiction of law as well as by admission, the finding of the learned Labour Court as regards 'continuous service' by the workman stands right, just, proper and valid, in the eye of law. 16.
The obvious corollary would be the propriety and correctness of the finding of the learned Labour Court about the unavoidable mandatory duty of the employer to comply with the provisions of section 25F of the Industrial Disputes Act 1947, before severing the employer-employee relationship with the said workman. Similar is with regard to the finding of the learned Labour Court that violation by the employer of the mandates of the said provision of law has rendered the termination of the workman as illegal.
17.
The other point raised as to the illegality of the impugned Award by Mr. Gopala Binnu Kumar, learned Advocate, is that,
the Labour Court, having found termination of service of the workman as illegal, must ordinarily, grant reinstatement of his service and back wages too. Similar proposition has been upheld by the 03 Judges Bench of Supreme Court in the case of Surendra Kumar Varma (Supra), Mr. Gopala Binnu Kumar, has submitted. After careful consideration of the judgment of Supreme Court in Surendra Kumar Verma's case (Supra), the Court finds that the Supreme Court has directed reinstatement of service along with back wages must ordinarily be the relief granted to a workman, whose termination from service has been found by the Labour Court as illegal. The Court has however categorized therein about the exceptional circumstances which may exist for the Labour Court to found it either impossible or inequitable viz.
the employer and workman, to direct reinstatement with full back wages, even if the termination of service of the workman is found to have been illegally done. It is the verdict of the Court in the said case that in such exceptional cases the Labour Court can mould the relief.
18.
Therefore, the proposition as suggested by Mr. Gopala Binnu Kumar, learned Advocate for the workman is not sacrosanct and the only relief allowable to a workman having being terminated illegally. While reinstatement of such a workman with full back wages may be the relief ordinarily granted, however, there may exist exceptional circumstances too, leading the Labour Court to mould such relief. That, moulding of such relief ipsofacto would not amount to any illegality committed on part of the Labour Court, but its fairness and propriety has to be examined in the typical factual back ground of each and every case. What is required under the law, is that the Labour Court appreciates and appropriately analyses
existence of such circumstances on which he may deviate from the ordinary course of granting relief of reinstatement with full back wages and consider other reliefs as appropriate. 19.
In view of the impugned award dated December 15, 2021 of the learned Labour Court, this Court is of specific view that the learned Labour Court has categorically discussed the reasons for it not following the ordinary course of granting the reinstatement to the workman with full back wages. 20.
The Labour Court has in the context of the specific factual background of the case and the evidence before it has exercised its discretionary power and come to a finding that instead of the relief of reinstatement, grant of compensation should be the appropriate relief for the present workman. Since the decision of the learned Labour Court as above is based on strong reasoning and due analysis of the facts of the particular case, the same is not liable to be interfered into by this Court in any manner whatsoever. Accordingly, it is found that the proposition relied on by Mr. Gopala Binnu Kumar, learned Advocate as an absolute one may not be a right and acceptable proposition viz propriety of the Award of the learned Labour Court dated December 15, 2021 in the factual background of the instant case, on the basis of its records and evidence. 21.
However, this Court finds the said Award to be not based on any sound reasons insofar as learned Labour Court has refused to grant any interest over and above the amount of compensation, directed to be paid to the workman. 22.
Undeniably, the workman was appointed on January 01, 1997. He has last worked with the said employer on July 14,
1998. Inspite of the learned Labour Court having directed for payment of compensation to him in the Award dated December 15, 2021, he has not been granted the same either in full or in part, after such Award.
23.
On consideration of the facts as above, this Court is of opinion that the workman is entitled for interest over the compensation amount as granted (Rs. 25,984/-), at the rate of current Saving Bank's Account interest rate of a Nationalized Bank, from after the date of his termination till the date of actual payment of the compensation amount. Hence, the respondent concerned is directed accordingly to calculate the interest amount payable for the said stipulated period and immediately disburse the amount of compensation along with interest as above to the workman concerned and positively within a period of three week from the date of communication of copy of this judgment.
24.
Therefore, the Award of the learned Labour Court dated December 15, 2021 is modified to the extent as above. 25.
Rest of the said award remains as it is.
26.
The writ petition being WPA/97/2022 with WPA/51/2022 is disposed of with the directions as made above. 27.
Urgent photostat certified copy of this judgment, if applied for, may be supplied to the parties upon compliance of usual formalities.
(Rai Chattopadhyay, J.)