Rajesh Paul v. The Superintending Engineer

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL) WPA/133/2022 Shri Rajesh Paul ... Petitioner

Versus

The Superintendent Engineer... Respondent For the petitioner : Mr. Gopala Binnu Kumar For the respondent : Mr. Rakesh Kumar Heard on : 11.12.2025 Judgment on : 17.12.2025 SHAMPA DUTT (PAUL), J.

1.

The writ application has been preferred challenging the impugned award dated 30th March, 2022 passed by the learned Labour Court in ID case No. 03 of 2020 whereby dismissed the claim of the members of the petitioner.

2.

The petitioners' case in short is that the members of the petitioner union were engaged by the respondent at different point of time on and from the year 2007 onwards and were discharging the duties and responsibilities of regular employees under the respondent authority.

3.

Subsequently in the month of July 2019 the service of the members of the petitioner was illegally terminated by the respondent.

4.

Challenging the same the petitioners went in for conciliation, which ended in failure.

5.

Thereafter the appropriate government referred the matter before the Labour Court being I.D. Case No. 03 of 2020. 6.

The learned Labour Court vide impugned award dated 30.03.2022 rejected the claim of the members of the petitioner union. Hence this writ application.

7.

It appears that vide the impugned award dated 30.03.2022 in I.D. case No. 03 of 2020, the Presiding Officer, Labour Court, Andaman and Nicobar Islands at Port Blair, held as follows :

"It is settled position of law by several decisions of Hon'ble Supreme Court that to be entitled for the protection and benefit of Section 25F of Industrial Disputes Act. The workman has to prove that it worked for 240 days in the preceding 12 calendar months, immediately before and from the date of his retrenchment. As held in Point No.2, the workman could not prove their 240 days of work in the preceding 12 calendar months from their retrenchment, the First Party workmen in this case are not entitled for the benefits U/s.25F of Industrial Disputes Act. I rely on the decision of Hon'ble Supreme Court namely Krishna Bagya Jal Nigam Limited Vs. Mohammed Rafique reported as (2006) 9 SCC page-697. In this case Hon'ble Supreme Court held that whether the workman worked for continuous period of 240 days in a year, the burden of proof lies on the workman so as

to entitle him to the benefits of Section 25F of Industrial Disputes Act. I also rely the decision of Hon'ble Supreme Court namely Mohd. Ali vs. state of Himachal Pradesh and others reported in (2018) 15 SCC page 641, where Hon'ble supreme Court held that the workmen are not entitled to the benefit of Section 25F of Industrial Disputes Act since he had not worked for required 240 days in the year preceding his dismissal.".

8.

Finally, the Labour Court decided the reference against the petitioners members and dismissed the I.D. case. 9.

On hearing the learned Counsels for the parties, it is for this Court to see as to whether the petitioners members meet the requirements to be covered under Section 25F of the Industrial Dispute Act.

10.

Section 25F of the Industrial Dispute Act lays down :- "25F. Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: [***] [Proviso omitted by Act 49 of 1984, S.3 (w.e.f. 18.8.1984).] (b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] [Substituted by Act 36 of 1964, Section 14, for "for every completed year of service" (w.e.f. 19.12.1964).] or any part thereof in excess of six months]; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the

Official Gazette.] [Inserted by Act 36 of 1964, Section 14 (w.e.f. 19.12.1964).]".

11.

The Labour Court gave the finding that the workmen could not prove their 240 days of work in the preceding 12 calendar months from their retrenchment and as such, were not entitled to the benefit under Section 25F of the Industrial Disputes Act.

12.

The Labour Court relying upon the judgment of the Supreme Court in Krishna Bagya Jal Nigam Limited Vs. Mohammed Rafique reported as (2006) 9 SCC page-697, held that the burden of proof lies upon the workman to entitle him to the benefits of Section 25F of the Industrial Dispute Act. 13.

The Labour Court also relied upon the judgment of Mohd. Ali vs. state of Himachal Pradesh and others reported in (2018) 15 SCC page 641, holding that workman who did not put in 240 days of work in a year, preceding his dismissal was not entitled to the benefit of Section 25F of the Industrial Dispute Act. 14.

The writ petitioners have filed documents in support of their case that they have been in employment with the respondent for the period of one year preceding their dismissal on and from 06.01.2018 to 31.12.2019.

15.

It has been further stated that the documents filed clearly show that during the last preceding 12 months prior to retrenchment they put in 240 days of work. Statement of bank accounts have been placed to show that they have been duly paid their dues each month which shows continuous employment and this clearly supports their case that they have put in 240 days of service in a year i.e. during the 12 months preceding the date of their retrenchment.

16.

Short notes has been filed by the petitioner along with the judgments relied upon.

17.

It is the petitioners' case that they were engaged on and from the year 2007 and worked continuously up to June 2019. The petitioners were discharging the duties of establishing the new T and D lines, HT and LD lines, driving vehicles, meter reading and other similar nature of duties which is perennial in nature.

18.

That such appointment of the petitioners were made with the approval of the Andaman & Nicobar Administration and the same was extended from time to time with the approval of the Andaman & Nicobar Administration.

19.

It is further stated that despite a circular being issued by the Andaman & Nicobar Administration on 12.11.2014 in which

all departments were directed to freeze the number of daily rated employees in each department until further orders, the respondent authorities illegally terminated the petitioners from service in complete violation of the provisions of section 25F, 25G and 25H of the Industrial Dispute Act.

20.

The only defence taken by the respondent was the petitioners were working as mandays and not as daily rated employee, therefore they are not entitled for reinstatement. 21.

It is further stated by the learned Counsel for the petitioner that the Labour Court while passing the award on 30.03.2022, held that Industrial Dispute Act, 1947 does not define or recognise or differentiate those terms as mandays or DRM, therefore the objection of the respondent that the petitioners/employees were mandays and not protected under the Industrial Dispute Act was not accepted by the Labour Court and held that the petitioners are workmen within the definition of Industrial Dispute Act.

22.

It is further stated that before the Labour Court, the respondent authorities did not file the muster rule which they are under legal obligation to file under section 25D of the Industrial Dispute Act and therefore an adverse inference is to be drawn against the respondents.

23.

The following judgments are relied upon by the petitioners :

i.

Gauri Shanker - versus - State of Rajesthan 2015 SCC 754 [Paragraph No. 14 and 15 (Adverse Inference)].

ii.

WPA/22777/2024 (Hooghly Infrastructure Pvt. Ltd. Versus- Sri Ram Okil Prasad & Ors) Date of Judgement 04/03/2025 (Paragraph No. 7, 10 and 14). iii.

Jasmer Singh - versus - State Of Haryana and Another 2015 4 SCC 458 [Paragraph No. 4, 11, 13 and Last para (reinstatement)] iv.

State Of Uttar Pradesh-versus-Charan Singh 2015 SCC 150 [Paragraph No. 13, 15, 21, 22 and 24 (Back Wages)] v.

Surendra Kumar Verma -versusThe Central Government Industrial Tribunal -cum-Labour Court, New Delhi & Another, 1981 AIR (SC) 422 (Paragraph No. 6, 7, 10 and 13) vi.

Raj Kumar Dixit -versus- M/s Vijay Kumar Gauri Shanker, Kanpur Nagar, 2015 (9) SCC 345 [Paragraph No. 18 (Back Wages)].

24.

Paragraphs no. 7, 10 and 14 of the judgment dated 04.03.2025 passed by the Calcutta High Court in WPA/22777/2024 (Hooghly Infrastructure Pvt. Ltd. Versus-

Sri Ram Okil Prasad & Ors), being relevant are reproduced hereinbelow :- "7. It is stated that while passing the order dated 21.05.2024 the appellate authority, illegally shifting the onus to prove that respondent no.1 did not work for 240 days in each year of his alleged tenure of service upon the petitioners and miserably failed to appreciate that it is impossible to prove a negative, i.e., the years respondent no. I did not work for 240 days in each year.

10. From the materials on record the following is evident:- (i) The respondent no. I was employed with the petitioner company as a 'badli worker' from 23.03.1976 till 13.02.2010 (34 years).

(ii) The respondent no. 1 became a member under the Provident Fund Scheme in the year 1980.

(iii) The job for 34 long years involved working in place of permanent workman/employee in their absence on leave or otherwise.

(iv) In support of his case of the period of employment, the employee has produced and exhibited a copy of his ESI Card, his superannuation notice and his wage slip before the tribunal, which was duly considered.

(v) The petitioner company did not produce any documents inspite of the fact that it is the duty of the employer to maintain all documents relating to its employee and other matters, to be maintained and preserved as per law.

14. In the present case, the respondent no. 1 has served continuously as a badli/casual worker for 34 years in permanent posts and has produced documents in support. The petitioner/company was bound to produce the documents as required to be maintained under Section 25D of the Act. (Ranbir Singh vs S.K. Roy, Chairman, Life Insurance, (Supra)).".

25.

The respondent has relied upon the following judgments :-

(i) 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] (Paragraphs 9, 10, 11 & 12).

(ii) The Executive Engineer - vs - S. Manohari and Ors in WPA/107/2020 (With) S. Manohari and Ors - vs - The Executive Engineer, PBND, APWD, Port Blair in WPA/117/2020 of the Calcutta High Court, Circuit Bench at Port Blair (Paragraphs 20, 21, 22, 26, 27 & 29).

26.

The respondents on relying upon the said judgments submit that the Labour Court rightly decided the petitioners' case and the writ application having no merit, should be dismissed.

27.

Section 25D of the Industrial Disputes Act, lays down:- "25D. Duty of an employer to maintain muster-rolls of workmen.- Notwithstanding that workmen in any industrial establishment have been laid-off, it shall be the duty of every employer to maintain for the purposes of this Chapter a muster-roll, and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours.".

28.

In Ranbir Singh vs S.K. Roy, Chairman, Life Insurance, in Misc. Application No. 1150 of 2019, decided on 27 April, 2022, the Supreme Court held:- "...........25. It is settled principle of law that while considering the order/judgment of Constitutional Court, this Tribunal is required to keep in mind entire spectrum of the orders as well as background of the case. It is not proper to cull out a single para or a sentence from the order/judgment so as to defeat the very purpose of the order so passed by Hon'ble Supreme Court. If the orders dated 11/5/2018, 7/9/2018 and 10/9/2018 are taken into consideration, it is crystal clear that claims of all such workmen and Union/s who worked as Badli workers during the period from 20/5/1985 to 4/3/1991 are required to be considered by this Tribunal.

Although I am in full agreement with the submission made on behalf of the PART B Management/LIC that initial onus is always upon the workmen concerned to prove that they were in the employment of the Management at the relevant time, however this Tribunal cannot ignore the fact that UC has not filed on record any document/record relating to employment of various workmen rather has simply taken a plea that same being old record is not traceable." 22 The Dogra Report noted that LIC had admitted that 321 workers were found to be eligible for absorption in terms of the Srivastav Award. The report found fault with LIC for making contradictory claims that 321 workers were eligible for absorption when the records of workers were allegedly old and not traceable.

The Dogra Report drew an adverse inference against LIC for having failed to maintain the records in pursuance of the burden cast upon it by Section 25-D of the ID Act, particularly when the reference was pending since 1991. Paragraph 29 of the report is extracted below: "29) During the course of arguments as well as in the reply filed on behalf of the Management/LIC, it is clear that Management has admitted that till date 321 Nos. of employees were found to be eligible in terms of the Award and they were considered eligible for absorption. It is not understandable to this Tribunal as to what were the basis for the Management/LIC for coming to the conclusion that only 321 Nos. of workmen/employees were found to be eligible and covered by the Award of CGIT in ID case No.

27/1991, when the Management has come up with a plea that record relating to the workmen being old record is not traceable.

worthwhile to mention here that Section 25-D of the ID Act specifically provides that it is the duty of every Employer to maintain a muster roll and to provide for the making of entries therein by the workmen who may present themselves for work at the establishment. This Tribunal has to keep in mind a vital fact that since the reference bearing ID No.27/1991 is pending before various Courts since 1991, the Management/LIC was/is required to keep the record in safe custody when the case of such a huge magnitude was PART B pending before the Courts. In such circumstances, this Tribunal is constrained to draw adverse inference against the management." 23 Based on the above hypothesis, the report proceeded to decide "prima facie" the claims of the Unions and individual workers.

While taking up the claims made by the All India Life Insurance Employees Association and its affiliate, Life Insurance Employees Association, Delhi, the report notes that 6998 claims had been filed (as contained in Annexure A). Upon scrutiny, LIC drew the attention of the CGIT to the fact that 3592 duplicate entries were found in the claims which were submitted (as contained in Annexure A-1). Noting that the "Unions have not seriously disputed the same", the Dogra Report concludes that "such claimants are to be given benefit of absorption only once". The Dogra Report also notes that workers who had started working beyond the cut-off date of 4 March 1991 would not be covered in the enquiry.

This observation in the Dogra Report was in view of the order of this Court in the contempt proceedings arising out of the review of TN Terminated Employees Association (supra) on 7 September 2018, which had specifically observed that whether the benefit of the Srivastav Award should be given to those who had been engaged as badli workers after 4 March 1991 was a matter for interpretation by this Court. Hence, for the time being, CGIT had been directed to limit its enquiry only to the claims for the period between 20 May 1985 and 4 March 1991 (as contained in Annexure A-2). In this context, the Dogra Report held that those workers who had commenced work after 4 March 1991 would not be covered by its enquiry.

In State of Haryana & Ors. etc. etc. v. Piara Singh & Ors. etc. etc., (JT 1992(5) S.C. 179), the Supreme Court indicated how regularization of adhoc/temporary employees in Government and Public Sector Undertakings should be effected. While PART D laying down the guidelines in this behalf, this court observe in paragraph 43 as under:- "The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of

administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible.

Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate.

The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/temporary employee."........."

29.

The Labour Court which is directed to decide the issue afresh on following the direction of this Court in para 14, 22, 27 to 28 of this order by permitting both parties to file documents in support of their respective cases and make all endeavour to dispose of the case expeditiously preferably within a period of six months.

30.

In the present case, the respondent no. 1 has served continuously as mandays/DRM's for more than 12 years in permanent posts and has produced several documents in support, including statements of salary account of the petitioner. The petitioner/company was thus bound to produce the documents as required to be maintained under Section 25D of the Act. [Ranbir Singh vs S.K. Roy, Chairman, Life Insurance, (Supra)].

31.

Accordingly, the award dated 30th March, 2022 passed by the Labour Court in ID case No. 03 of 2020 is hereby set aside, considering that the impugned award passed was against the principle of natural justice as the same was not passed keeping in mind that the act was a beneficial legislation. 32.

Thus, the impugned award dated 30th March, 2022 passed by the learned Labour Court in ID case No. 03 of 2020 is hereby set aside.

33.

The case is sent back on remand to the Labour Court, Andaman and Nicobar Islands.

34.

With the above observations and directions, the writ petition is disposed of.

35.

There shall, however, be no order as to costs. 36.

Urgent Photostat certified copy of this order, if applied for, shall be supplied to the parties as expeditiously as possible, upon compliance of all formalities.

[ SHAMPA DUTT (PAUL), J. ]