Nafr High Court
Case Details
1 SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.02.03 10:22:49 +0530 2025:CGHC:5263 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPL No. 65 of 2022 Senior Superintendent Of Post Office Raipur Division, Raipur C.G. , Chhattisgarh ... Petitioner(s) versus
Legal Reasoning
1. Shri Ram Kumar Pal S/o Shri Nohar Singh Pal R/o Village Bhatagaon Near Hostel Post Office Mathpuraina Vial R.S.O. Distt. Raipur C.G. , Chhattisgarh 2. Regional Labour Commissioner Jabalpur Division, Jabalpur M.P., District : Jabalpur, Madhya Pradesh ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner For Respondent No. 1 : Mr. Bhupendra Singh, Advocate : Mr. Akhil Kumar Samantray, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 29. 01.2025 1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 That this Hon’ble Court may kindly be pleased to issue an appropriate writ setting aside/quashing the impugned award dated 26.09.2013 (Annexure P/1) passed by learned Tribunal. 10.2 Any other relief or relief(s) which this Hon’ble Court may deem fit or proper in the facts and circumstances of the case.” 2. Learned counsel for the petitioner would submit that respondent No. 1 was a temporary employee and his engagement was on the basis of need. He would further submit that the workman has not worked for 240 days in a 2 calendar year and he failed to prove this fact. He would further submit that the workman has to prove his case and he could not take the benefit of weakness of the employer. He would also submit that the learned Labour Court without appreciating these aspects passed the award in favour of respondent No. 1/workman. It is contended that the written statement filed by the petitioner/employer was not taken into consideration by the learned Court below. 3. On the other hand, learned counsel appearing for respondent No. 1 would submit that a claim was filed by the respondent/workman before the authority concerned. He would further submit that a reference was made by the Government of India, Ministry of Labour vide letter dated 18.01.1993. He would also submit that the workman appeared before the Labour Court and adduced evidence and proved the fact that he was appointed on 25.03.1987 as Mail Van Driver on daily wages. It is contended that respondent No.1 worked up to 28.02.1989. It is further contended that the services of respondent No.1 were discontinued without assigning any reason. It is stated that respondent No.1 in his evidence has proved his case. It is further stated that the learned Labour Court after appreciating the evidence and the documents available on record, passed the order impugned. 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. Section 25B of the Industrial Disputes Act, 1947 (for short “Act, 1947”), reads as under:- “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 3 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 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 the 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. 6. Section 25F of the Act, 1947 reads as under:- “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; 4 1[***] (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2[for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government 3[or such authority as may be specified by the appropriate Government by notification in the Official Gazette]. 7. Section 2(s) of the Act, 1947, reads as under:- “Section 2(s) - “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person— (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding 3[ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” 8. According to the definition of “workman”, it is apparent that the temporary workers are also included as workman; therefore, the contention made by Mr. Singh cannot be accepted. The next contention of Mr. Singh is that in order to attract Section 25F of the Act, 1947, a workman must fall within the purview of Section 25B of the Act, 1947. The definition of workman is given in Section 2 (s) of the Act, 1947 and the definition part cannot be precluded from the provisions of Section 25 (B) or 25 (f) of the Act, 1947; therefore, the contention made by Mr. Singh appears to be misconceived. 5 9. From a perusal of the record, it is apparent that only the written statement was filed by the employer and no-one appeared to prove the contents of the written statement; therefore, the documents which have been placed along with this petition cannot be accepted, wherein it is stated that the respondent/workman did not work for 240 days in a calendar year. The learned Labour Court after appreciating the documentary as well as the oral evidence passed the award. 10. Taking into consideration the above-stated discussed fact, I do not find any good ground to interfere with the award passed by the learned Labour Court dated 26.09.2013. Consequently, this petition fails and is hereby dismissed. No cost(s). S Sd/- (Rakesh Mohan Pandey) Judge $iddhant