The High Court
Case Details
1 W.P. (L) No.4628 of 2014 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 4628 of 2014 The State Co-Operative LAC Marketing And Procurement Federation Limited, Ranchi (in short ‘JASCOLAMPF, Ranchi) having its office at Purlia Road, Ranchi, through its present Managing Director, JHASCOLAMPF, Ranchi namely Sunil Kumar, s/o late Raghunath Prasad, Resident of –Khelgaon, Hotwar, Ranchi, P.O.-Hotwar, P.S.-Ranchi Sadar, Dist.-Ranchi, Jharkhand .... Petitioner Versus 1. The State of Jharkhand through the Principal Secretary, Labour Employment & Training Department, Govt. of Jhakhand, Ranchi 2. (a) Sunita Tirkey, wife of late Santosh Tirkey (b) Kiran Tirkey, daughter of late Santosh Tirkey (c) Jyoti Tirkey, daughter of late Santosh Tirkey (d) Roshini Tirkey, daughter of late Santosh Tirkey (e) Monu Tirkey, daughter of late Santosh Tirkey (f) Vishal Tirkey, son of late Santosh Tirkey All are major and residents of Village-Chena, Piridih, P.O.-Rajaulahatu, P.S.Namkum, Dist.-Ranchi, Jharkhand …. Respondents P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the Respondent : Mr. Prakash Chandra, Advocate : Mrs. Neetu Verma, Advocate : Mr. Virendra Kumar, Advocate : Mr. Shivam Anand Pathak, AC to SC III : Mr. Sreenu Garapati, SC III : In Person ….. By the Court:- 1. 2. 3. 4. 2 W.P. (L) No.4628 of 2014 Heard the parties. This Writ Petition has been filed under Article 226 of the Constitution of India with the prayer to set aside the award dated 07.02.2014 passed by the Presiding Officer, Labour Court, Ranchi in Reference Case No.01 of 2010, a copy of which has been annexed as Annexure-18 of this writ petition whereby and where under, the Labour Court held that the original respondent no.2- Workman namely Santosh Tirkey was an employee of JASCOLAMPF factory i.e. the writ petitioner and he was dismissed from service by the Management without giving notice and without hearing the difficulty of the workman and answered the reference in favour of the workman by holding that the dismissal of the workman by the Management was not justified and the same was illegal and directed the writ petitioner- Management to reinstate the original respondent no.2-Workman in the service within two months from the pronouncement of the award. The brief facts of the case is that the appropriate government referred the following dispute to the Labour Court, Ranchi:- “Whether the dismissal of Santosh Tirkey workman from 10.10.2007 by the Managing Director, JASCOLAMPF, Purulia Road, Ranchi is justified, if not what relief the related workman is entitled to?” The case of the original respondent no.2-Workman is that he was working as an electrician in the JASCOLAMPF company since 2004. He was working continuously for months without leave. He was always present in his duty but all of a sudden he became ill 3 W.P. (L) No.4628 of 2014 on 10.10.2007 due to malaria. The doctor advised him to take rest till two months. When he went to join his duty after taking fitness certificate; the Management did not make him join till six months. The Management assured him to give the job. On 27.05.2008, the Management told him to sign an agreement paper but he denied to sign the same as it was mentioned that he was an unskilled labour as the original respondent no.2-Workman was a skilled labour. It is contended by the original respondent no.2-Workman that the Management has not followed Section 25 N and F of the Industrial Disputes Act, 1947 by removing him as the Management did not issue the notice to him nor he was ever charge sheeted by the Management. The original respondent no.2- Workman further contended that he was the sole electrician in the Management and he prayed for reinstatement with back wages from the Management. 5. The case of the writ petitioner- Management was that the original respondent no.2-Workman was employed on casual basis, on daily basis and the services of the concerned workman was engaged on temporary basis/daily basis to do the repair work of the electrical and other problem of the machines of the writ petitioner factory. The original respondent no.2-Workman was habitual in keeping absent from duty that too even without prior information to the Management. Management further contended that in the year 2007 out of total duty period of 295 days, the concerned workman was absent from duty for 146 days and due to such conduct and long unauthorized absence from duty, the 4 W.P. (L) No.4628 of 2014 production of the factory was hampered. The Management denied that it ever dismissed the original respondent no.2-Workman from the services rather due to being in unauthorized absence for 146 days in the year 2007, his services as daily wage/ on temporary basis worker was not extended further. 6. In support of its case, the original respondent no.2-Workman examined three witnesses and all of them have stated that original respondent no.2-Workman was working in the writ petitioner factory since 2004 and he was dismissed from service without any reason. From the side of the Management, two witnesses were examined. MW1- Ravindra Kumar has categorically stated that original respondent no.2-Workman was absent altogether 146 days in the year 2007 and this testimony of MW1 has remained unchallenged. The factory has been closed two years prior to that. The Management issued several letters regarding the absence of Santosh Tirkey. MW2—Binod Prasad Karn has stated that Santosh Tirkey went away himself leaving the factory. The Management also proved the documents which have been marked Ext. A to Ext. K. Ext-E a copy of which has been annexed as Annexure-9 to this writ petition is the letter dated 01.02.2008 which is about the actual working duty of Santosh Tirkey and it shows that in the year 2007, Santosh Tirkey was absent for 146 days. 7. The Labour Court held that as the Management did not give any notice and any opportunity to hear the workman prior to his dismissal which was in total violation of Section 25F and 25N of the Industrial Dispute Act, 1947 and as it is proved that Santosh 5 W.P. (L) No.4628 of 2014 Tirkey was an employee of the writ petitioner-Management, the Presiding Officer, Labour Court directed for reinstatement of the original respondent no.2-Workman in service within two months from the date of the award dated 07.02.2014. 8. It is submitted by the learned counsel for the petitioner relying upon the judgment of Hon’ble Supreme Court of India in the case of Ramesh Kumar vs. State of Haryana reported in (2010) 2 SCC 543, paragraph no.18 of which reads as under:- “18. It is to be noted in the case of termination of casual employee what is required to be seen is whether a workman has completed 240 days in the preceding 12 months or not. If sufficient materials are shown that the workman has completed 240 days then his service cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25-F. The High Court failed to appreciate that in the present case the appellant has completed 240 days in the preceding 12 months and no notice or compensation in lieu of it was given to him, in such circumstances his termination was illegal. All the decisions relied on by the High Court are not applicable to the case on hand more particularly, in view of the specific factual finding by the Labour Court.” that the provision of Section 25F or for that matter Section 25N of the Industrial Disputes Act, 1947 is applicable if and only if the workman concerned is shown that the workman has completed 240 days in the preceding 12 months from the date of his last employment. 9. It is next submitted that in this case, it is undisputed case of the original respondent no.2-Workman that he was last employed on 6 W.P. (L) No.4628 of 2014 10.10.2007 so the preceding 12 months ending with 10.10.2007 starts from 11.10.2006. The unchallenged testimony of the witnesses of the Management and the undisputed facts remains that the original respondent no.2-Workman was absent for 146 days in the year 2007, the same was corroborated by Annexure-9 which is a documentary evidence, so, it is established beyond doubt that the original respondent no.2-Workman did not work for 240 days in the 12 months preceding 10.10.2007 so as to constitute the continuous service for not less than one year which is a sine-qua-non for invoking the provision provided under Section 25F and 25N of the Industrial Disputes Act, 1947 hence, it is submitted that the Labour Court committed a perversity in applying the provision of Section 25F and 25N of the Industrial Disputes Act, 1947 even though undisputedly, the original respondent no.2-Workman did not work in continuous service of period not less than one year, Hence, the said judgment is a perverse one and the same be quashed and set aside. 10. The representative of the original respondent no.2-Workman submits that in the year 2004 to 2006 in each year, the original respondent no.2-Workman worked for more than 240 days even then in the year ending 10.10.2007, he did not work for 240 days still the provision of Section 25F and 25N of the Industrial Disputes Act, 1947 is attracted in the case of the original respondent no.2-Workman. Hence, no illegality has been committed by the learned Labour Court. In support of his contention, the representative of the original respondent no.2- 7 W.P. (L) No.4628 of 2014 Workman relied upon the judgment of Hon’ble Supreme Court of India in the case of Management of M/s. Willcox Buckwell India Ltd. vs. Jagannath & Ors. reported in (1974) 4 SCC 850, wherein, the Hon’ble Supreme Court of India relied upon its Judgment in the case of Digwadih Colliery vs. Their Workmen reported in (1965) 3 SCR 448: AIR 1966 SC 75 wherein, in the facts of that case where a badli workman worked as employee for more than 240 days and he was retrenched, it was held that a person who was working as badli was entitled to the benefit of the provision relating to retrenchment if he fulfilled the requisite conditions. 11. Mr. Shivam Anand Pathak, the learned counsel for the State submits that it is a settled principle of law that to constitute continuous service for not less than one year as has been mentioned in both Section 25F and 25N of Industrial Disputes Act, 1947, it has to be shown that workman worked at least for 240 days in 12 months preceding the last date of his employment with the Management and undisputedly, as in this case, there is absolutely no evidence from the side of the workman that the original respondent no.2-Workman worked for 240 days or more during the period 11.10.2006 to 10.10.2007 rather undisputedly, evidence brought by the Management shows that he was absent for 146 days during that period so certainly, respondent-workman did not qualify as a person who worked for not less than one year hence certainly, the provision of Section 25F and 25N of the Industrial Disputes Act, 1947 is not attracted hence, the Labour 8 W.P. (L) No.4628 of 2014 Court having committed error; the order passed by it is indefensible. 12. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that as has been held by the Hon’ble Supreme Court of India in the case of Ramesh Kumar vs. State of Haryana (supra), it is a settled principle of law as has been defined under Section 25B of the Industrial Disputes Act, 1947, that for the purpose of Chapter VA of the Industrial Disputes Act, the workman shall be in continuous service for a period of one year; if and only if he has completed 240 days in preceding 12 months ending with the date of last employment of the workman. 13. Now there is absolutely no evidence put forth by the workman that original respondent no.2-Workman worked for 240 days during the period 11.10.2006 to 10.10.2007. It is undisputed fact that the workman concern last attended his duty with the writ petitioner on 10.10.2007. The undisputed fact also remains that he was absent from duty for 146 days in the year 2007. So this Court has no hesitation in holding that the Labour Court has committed a grave illegality and perversity by ignoring that there is ample evidence in the record to establish that original respondent no.2- Workman did not work for 240 days from 11.10.2006 to 10.10.2007 and in absence of that he does not qualify to be termed as a workman who has been in continuous service for not less than one year under the writ petitioner-Management and in the absence of that there is no way the Labour Court could have 9 W.P. (L) No.4628 of 2014
Decision
found fault with the writ petitioner-Management for not applying the provision of Section 25F and 25N of the Industrial Disputes Act, 1947. 14. Accordingly, the award dated 07.02.2014 passed by the Presiding Officer, Labour Court, Ranchi in Reference Case No.01 of 2010 being not sustainable in law and a perverse one based on erroneous application of law; the same is quashed and set aside. 15. In the result, this writ petition is allowed. High Court of Jharkhand, Ranchi Dated the 20th February, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)