…….. Shishir Kumar Mukherjee, S/o Late Banapada Mukherjee v. Management of Bata Shoe Store, Lower Bazar Branch, Main Road under P.O. G.P.O., P.S
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 533 of 2015 …….. Shishir Kumar Mukherjee, S/o Late Banapada Mukherjee ... ... … Appellant Versus Management of Bata Shoe Store, Lower Bazar Branch, Main Road under P.O. G.P.O., P.S. Kotwali, Ranchi through its Manager ... ... ...Respondent(s) CORAM:
Legal Reasoning
SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. --------- For the Appellant(s) : Mr. Ashok Kumar Pandey, Advocate For the Respondent(s) : Mr. Dhirendra Kumar Deo, Advocate --------- 14/ Dated: 30.10.2023 Upon hearing the learned counsel for the parties, this Court passed the following. (Per Ananda Sen, J.) 2. This Court vide order dated 28.08.2023 on the prayer of the learned counsel for the appellant directed the respondent to seek instruction as to whether any monetary compensation can be awarded to the appellant or not. In course of hearing today, the learned counsel for the respondent submits that though he had intimated the aforesaid fact to the higher authorities of the respondent, but the respondent has not communicated any instruction to him thus he prays that the appeal be heard on merits. 3.
Decision
This intra court appeal is at the instance of the writ petitioner, is against the judgment of the learned Single Judge dated 07.08.2015 passed in W.P.(L) No.3253 of 2007. 4. The learned counsel appearing on behalf of the appellant submits that the appellant had served the respondent for a long period, but the learned Single Judge has not taken into consideration the tenure which he had worked under the respondent. He argues that the Shop Manager was authorized/ entitled to appoint workman considering the nature of work load. The appellant-petitioner was -2- engaged by the shop manager and paid remuneration from the funds of the respondent, though there was no regular appointment letter. Since the petitioner had worked for a long period under the respondent, he could not have been removed from his service, rather he should have been regularized on his post. This aspect of the matter has not been taken into consideration by the learned Single Judge. 5. After hearing the parties, we find that the writ application was filed by the appellant challenging the award passed by the learned Presiding Officer, Labour Court, Ranchi in Reference Case No.3 of 2004. This workman was admittedly engaged by the Shop Manager of M/s Bata Shoe Store as a Peon and was designated as Shop Assistant and he was terminated on 04.07.1994. An industrial dispute was raised and award was passed on 12.11.1998 in Reference Case No.15 of 1996 whereby termination was declared illegal. The respondent was directed to reinstate the petitioner with full back wages from the date of termination. The said award was challenged by the Management of Bata Shoe Store in writ application under Article 226 of the Constitution being C.W.J.C. No.2411 of 1999 (R), which was dismissed on 21.03.2001. The Letters Patent Appeal filed against the said order dated 21.03.2001 also stood dismissed. Thereafter, the petitioner was permitted to join on the said post. The petitioner claimed regularization. As the conciliation failed, the dispute was referred for adjudication vide Notification dated 24.03.2004. The terms of reference was as follows:- “Whether not to regularize the services of Shri Shishir Kumar Mukherjee, shop Assistant, M/s Bata Shoe Store, Lower Bazar, Main Road, Ranchi is justified? If yes, then since when & what other relief he is entitled to?” -3- 6. Before the learned Tribunal witnesses were examined. The workman was examined and he admitted that he was appointed on a temporary post. He was not appointed through the selection process. He admitted that no advertisement was issued prior to his appointment, rather he was appointed by the Shop Manager. The Labour Court after considering the evidence, has arrived at the conclusion that the concerned workman is not entitled for regularization. Para 9 of the award (internal page at 9), the learned Tribunal has held regarding the procedure for appointment in Bata Shoe Company to the effect that appointment should be confirmed by the General Manager, Personnel and Administration of the Company. The learned Tribunal has also held that the name of the petitioner was not sponsored by the Employment Exchange nor that his appointment was made against an existing vacant post, rather this workman has admitted before the learned Tribunal that he had not made any application with respect to his employment. The workman while deposing as a witness before the learned Tribunal has admitted that he was verbally appointed by one D.K. Shrivastava, the Shop Manager. The workman could not produce any document to substantiate that the Shop Manager had the authority to appoint any person against any vacant post. The Management witness 2 has categorically stated that the Shop Manager does not have any authority or power to appoint any person. The learned Tribunal in last sub-para of para 9, on the basis of evidence led, had arrived at the conclusion that the workman has not brought forth any substantial material on record to support his claim that he has a right and he is entitled for regularization. -4- 7. On the issue of payment of salary is concerned, the learned Tribunal, based on the evidence of the parties, has held that it is an admitted case that the workman was not a permanent employee, rather he was an adhoc employee. The learned Tribunal has also found that the workman was paid wages, which is prescribed under the Bihar Shops and Establishments Act. The learned Tribunal, thus, came to a conclusion that since the petitioner was not a permanent employee, therefore, he cannot claim wages at par with the regular employee. 8. All these facts have been taken note of by the learned Single Judge while dismissing the writ petition. The Court exercising jurisdiction under Article 226 of the Constitution, does not sit in an appeal, while deciding the validity of award passed by the learned Court. The scope is limited. 9. In the instant case, there is no procedural lapse nor there is any perversity in the award. We also find no illegality or irregularity in the impugned judgment passed by the learned Single Judge. 10. Accordingly, the instant Letters Patent Appeal stands dismissed. (Sanjaya Kumar Mishra, C.J.) R.S. (Ananda Sen, J.)