The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 20644 OF 2017 (An application under Articles 226 and 227 of the Constitution of India) ***** The Management of M/s. Hare Krushna Mahatab Library, Bhubaneswar …… Petitioner -Versus- Prasanna Kumar Sethi .…… Opp. Party Advocates appeared: For Petitioner : Mr. Swayambhu Mishra, ASC For Opp. Party : Mr. P.K. Chand, Advocate CORAM : MR. JUSTICE K.R. MOHAPATRA MR. JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------ Heard and disposed of on 11.03.2025 ---------------------------------------------- JUDGMENT By the Bench; 1. 2. This matter is taken up through hybrid mode. Petitioner-Management in this writ petition seeks to assail the award dated 19.09.2013 (Annexure-3) passed by learned Presiding Officer, Industrial Tribunal, Bhubaneswar in Industrial Dispute Case No.02 of 2012, whereby it has been directed to reinstate the Opposite Party-Workman against a similar post, in which he was continuing at the time of W.P.(C) No. 20644 OF 2017 Page 1 of 15 termination, and to release his unpaid wages from 01.03.2009 to 20.08.2010.
Legal Reasoning
3. Mr. Mishra, learned Additional Standing Counsel, appearing for the Petitioner-Management, submitted that the Opposite Party-Workman was engaged as an unskilled DLR against the vacant post of Chowkidar in Hare Krushna Mahatab Library, Bhubaneswar with effect from 02.08.2004 and his services were dispensed with due to abolition of the post of Chowkidar pursuant to Government Order No.2650/TC dated 25.06.2007. But the Opposite Party-Workman was allowed to work as unskilled Workman till February, 2009. On receiving clarification with regard to release of his unpaid wages, the Workman was paid up to February, 2009 as per the instruction of the Joint Secretary to Government in Culture Department. 4. It is his submission that since the Opposite Party was engaged as an unskilled DLR, the provision under section 25-F of the Industrial Disputes Act, 1947 (for brevity “the Act”) need not be complied with. 5. Further the Opposite Party-Workman worked during working days only from 02.08.2004 till 20.08.2010. He never worked for 240 days continuously, as required under section 25- F of the Act. 6. Learned Tribunal, although referred to the rival contentions of the parties in the impugned award, but without recording any finding on the same, more particularly, with regard W.P.(C) No. 20644 OF 2017 Page 2 of 15 to continuous service of the Opposite Party-Workman, jumped to a conclusion that the Workman is entitled to reinstatement in the post from which he was terminated and to pay his unpaid wages. The post against which the Workman was continuing has already been abolished. Hence, it is very difficult to reinstate the Workman, as directed. 7. Mr. Mishra, learned ASC further submitted that the Petitioner-Management being M/s. Harekrushna Mahatab State Library, Bhubaneswar, is not an industry within the meaning of section 2-(j) of the Act. No finding to that effect has also been recorded by learned Tribunal. Even though such a stand was not taken in the written statement filed by the Management before the Tribunal, but the same being a question of law, was required to be answered by the learned Tribunal. 8. Mr. Mishra, learned ASC further submitted that since the Opposite Party-Workman was engaged as unskilled DLR, provision under Section 25-F of the Act was not required to be complied with. 9. Mr. Mishra, learned ASC thus submitted that the impugned award under Annexure-3 is cryptic and non-speaking. Hence, the same may be set aside and the matter be remitted back to the learned Tribunal for fresh consideration. 10. Per contra, Mr. Chand, learned Counsel for the Opposite Party-Workman submitted that the Workman had worked for 240 days in each calendar year, including in the preceding 12 months W.P.(C) No. 20644 OF 2017 Page 3 of 15 from the date of his termination and the same was also not disputed by the Management. Hence, he was in continuous service in terms of section 25-B of the Act. 11. Admittedly, provision under section 25-F of the Act was not complied with by the Management before dispensing with the services of the Workman. When the Workman was in continuous service, provision under Section 25-F of the Act was required to be complied with before dispensing with the services of the Opposite Party-Workman. 12. He further submitted that in spite of the direction of this Court dated 25.04.2019 passed in I.A. No.2677 of 2019 so also subsequent order dated 15.05.2019, the Petitioner-Management has not yet complied with the provision under section 17-B of the Act. As such, the writ petition is liable to be dismissed in view of the ratio decided in 2010 (Supp.I) OLR 772 (Co- operative Urban Bank Ltd. Parlakhemundi Vs. Presiding Officer, Labour Court, Jeypore and others). He, therefore,
Decision
submitted that the writ petition is liable to be dismissed in limine. 13. Heard learned Counsel for the parties. 14. Perused the case record. In view of the submission made by learned State Counsel that the Opposite Party was working as an unskilled DLR and is not a workman, for which it was not obligatory on the part of the Petitioner to comply Section 25F of the Act before retrenching him, it would be apt to reproduce below Section 2(s) of the Act. W.P.(C) No. 20644 OF 2017 Page 4 of 15 skilled, “2(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, 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 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.” (Emphasis supplied) 15. As has been admitted by the Petitioner-Management in para-2 of its Written Statement, the Opposite Party was engaged as an unskilled DLR against a vacant post of Chowkidar. From such admission of the Management, it is apparent that the nature of job, the Opposite Party-Workman was discharging, comes under the purview of Section 2(s) of the Act. That apart, as is revealed from the written statement filed by the Management, such a plea was never taken before the learned Tribunal. Admittedly, provision under section 25-F of the Act was not complied with before dispensing with the services of the Opposite Party-Workman on the plea that he never worked W.P.(C) No. 20644 OF 2017 Page 5 of 15 continuously for more than 240 days without any break for the period from 02.04.2004 till 20.08.2010, and only worked for the said period on working days. Para-5 of the written statement, being relevant, is reproduced below for ready reference:- “5. In reply to the para, it is submitted that the applicant/petitioner was engaged as un-skilled DLR w.e.f. 02.04.2004 to 20.08.2010 only on working days. But he was not working continuously more than 240 days without any break.” (Emphasis supplied) 16. Thus, it is to be seen as to whether the Workman was in continuous service of 240 days in the preceding twelve months as on the date of refusal of employment. Section 25-B mandates the preconditions before retrenching a workman, who has been in ‘Continuous Service’ for not less than one year under an employer. Section 25-B of the Act defines ‘Continuous Service’, the relevant portion of which is quoted hereunder for ready reference:- “25-B, 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- W.P.(C) No. 20644 OF 2017 Page 6 of 15 (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; x x x x x x x x x x x x (Emphasis supplied) 17. Admittedly, the Opposite Party-Workman was under engagement from 02.04.2004 till 20.08.2010 on working days, as has been admitted by the Petitioner-Management in its written statement. If the total working days in a calendar year are taken into consideration, the same would be more than 240 days in that calendar year. That apart, the minimum wages notified by the State Government, which is paid to a workman/daily wager, includes wages for the weekly rest day and the said days should also be taken into consideration for the purpose of counting 240 days. 18. Law is well settled that apart from the reasons of interruption, as detailed under Section 25-B(1), interruption due to Sundays/ weekly rest days as well as National Holidays, which are paid holidays, are also to be counted for the purpose of calculation of 240 days, as prescribed under Section 25-B(2)(a)(ii) of the Act. 19. In Workman of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, reported in (1985) 4 SCC 71, the Supreme Court held as follows: “2. The facts very briefly are that the workman joined the service of the American Express International Banking Corporation on November 4, 1974 as a typist-clerk in a temporary capacity and was employed as such, with a number W.P.(C) No. 20644 OF 2017 Page 7 of 15 xxx xxx of short breaks, till October 31, 1975 when his services were terminated. According to the workman excluding the breaks in service, he “actually worked under the employer” for 275 days during the period of 12 months immediately preceding October 31, 1975 whereas according to the employer he actually worked for 220 days only. The difference between the two computations is due to the circumstance that the workman has included and counted Sundays and other paid holidays as days on which he “actually worked under the employer”, while the employer has not done so. The question for consideration is whether Sundays and other holidays for which wages are paid under the law, by contract or statute, should be treated as days on which the employee “actually worked under the employer” for the purposes of Section 25-F read with Section 25-B of the Industrial Disputes Act. Section 25-F of the Industrial Disputes Act reads as follows: xxx 5. Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief under Section 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in Section 25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is Section 25-B (2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is “actually worked under the employer”. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The learned counsel for the Management would urge that only W.P.(C) No. 20644 OF 2017 Page 8 of 15 those days which are mentioned in the Explanation to Section 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression “actually worked under the employer”. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression “actually worked under the employer” is capable of comprehending the days during which the workman was in employment and was paid wages - and we see no impediment to so construe the expression - there is no reason why the expression should be limited by the explanation. To give it any other meaning than what we have done would bring the object of Section 25-F very close to frustration. It is not necessary to give examples of how Section 25-F may be frustrated as they are too obvious to be stated. (Emphasis supplied) 20. In U.P. Drugs & Pharmaceuticals Co. Ltd. Vs. Ramnuj Yadav and others, reported in (2003) 8 SCC 334 , the Supreme Court held that even though a workman has not worked for more than 240 days during the preceding 12 months of his retrenchment, if a workman has worked for more than 240 days in any of the preceding years, he would be deemed to be in continuous service and his retrenchment would be illegal, if the same has been done by the Employer without adhering to the provisions under the Act. Paragraphs 10 & 11 of the said judgment, being relevant, are reproduced below: “10. Under the aforesaid legislative background, the question involved is required to be reconsidered. Section 2(g) of the U.P. Act does not require a workman, to avail the benefit of the deeming provision of completion of one year of continuous service in the industry, to have worked for 240 W.P.(C) No. 20644 OF 2017 Page 9 of 15 days during the “preceding” period of twelve calendar months. The word “preceding” has been used in Section 25-B of the ID Act as incorporated in the year 1964. Section 2(g) does not use the word “preceding”. The concept of “preceding” was introduced in the ID Act so as to give complete and meaningful benefit of the welfare legislation to the working class. The approach to be borne in mind while interpreting the welfare legislation is illustrated in Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court [(1980) 4 SCC 443 : 1981 SCC (L&S) 16 : (1981) 1 SCR 789] where this Court has observed that semantic luxuries are misplaced in the interpretation of “bread-and-butter” statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the court is not to make inroads by making etymological excursions. 11. The learned counsel for the appellant, however, relies upon Mohan Lal v. Bharat Electronics Ltd. [(1981) 3 SCC 225 : 1981 SCC (L&S) 478] In that case, the Court was considering the scope of Section 25-B of the ID Act. It was observed that in order to invoke the fiction enacted in clause (2)(a) of Section 25-B, it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of twelve months just preceding the date of retrenchment and then ascertain whether within a period of twelve months, the workman has rendered service for a period of 240 days. It was held that if these three factors are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a), it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25-F. In Mohan Lal case [(1981) 3 SCC 225 : 1981 SCC (L&S) 478] the appellant was employed with the respondent from 8-12-1973. His services were abruptly terminated by a letter dated 12-10-1974 w.e.f. 19-10-1974. This Court said that it is not necessary for the purpose of clause (2)(a) of Section 25-B that a workman should be in service for a period of one year. It was held that if he is in service for a period of one year and that his service is continuous service within the meaning of sub-section (1), his services would be governed by sub-section (1) and his case need not be covered by sub-section (2). Sub- W.P.(C) No. 20644 OF 2017 Page 10 of 15 section (2) envisages the situation not governed by sub-section (1). Clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of twelve calendar months counting backward and just preceding the relevant date i.e. the date of retrenchment. These were the facts under which it was held as to how the period of 240 days was to be calculated. The decision in the case of Mohan Lal [(1981) 3 SCC 225 : 1981 SCC (L&S) 478] does not lay down that if a workman had worked for more than 240 days in any number of years and if during the year of his termination, he had not worked for the said number of days, he would not be entitled to the benefit of Section 25-B. The question with which we are concerned was not under consideration in Mohan Lal case [(1981) 3 SCC 225 : 1981 SCC (L&S) 478] . If the viewpoint propounded by the management is accepted, then every year the workman would be required to complete more than 240 days. If in any one year the employer gives him actual work for less than 240 days, the service of the workman can be terminated without compliance with Section 6-N of the U.P. Act, despite his having worked for a number of years and for more than 240 days in each year except the last. Such an intention cannot be attributed to the U.P. Act. In the present case, as already noticed, the finding of the Labour Court is that the respondents worked for more than 240 days in each year from 1983 to 1986 but not having worked for 240 days in the year of termination, the termination was held by the Labour Court not to be violative of Section 6-N. Reference may also be made to the decision in Ramakrishna Ramnath v. Presiding Officer, Labour Court, Nagpur [(1970) 3 SCC 67] where this Court observed that the provision requiring an enquiry to be made to find out whether the workman has actually worked for not less than 240 days during a period of twelve calendar months immediately preceding the retrenchment does not show that a workman, after satisfying the test, has further to show that he has worked during all the period he has been in service of the employer for 240 days in the year. The interpretation propounded for the appellant is wholly untenable. The decision in U.P. State Coop. Land Development Bank Ltd. v. Taz Mulk Ansari [1994 Supp (2) SCC 745 : 1994 SCC (L&S) 1188] relied upon by the learned counsel for the W.P.(C) No. 20644 OF 2017 Page 11 of 15 appellant has no applicability since that was a case of clause (a) of Section 6-N and, therefore, Section 2(g) had no relevance.” (Emphasis supplied) 21. As per the statute as well as the settled position of law uninterruptedly working for 240 days in the preceding twelve months from the date of termination of service is not necessary to constitute ‘continuous service’. Thus, this Court is of the view that the plea taken by the Management in its written statement, at para 5, as quoted above, is misconceived. 22. Apart from the same, it has been observed by the learned Tribunal that the Management Witness, in his evidence, categorically admitted that the second party workman was engaged as an unskilled DLR with effect from 02.04.2004 and was terminated with effect from 20.08.2010 as Chowkidar. Thus, this Court is of the view that learned Tribunal rightly came to a finding that the workman worked for more than 240 days in a calendar year. 23. So far as the limits of the jurisdiction of High Courts in a writ of certiorari, the Constitution Bench of Hon’ble Supreme Court in Syed Yakoob Vs. K.S. Radhakrishnan and others, reported in AIR 1964 SC 477, held as follows: “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be W.P.(C) No. 20644 OF 2017 Page 12 of 15 issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104: ((S) AIR 1955 SC 233): Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240: (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.” 8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is W.P.(C) No. 20644 OF 2017 Page 13 of 15 apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each cases and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.” (Emphasis Supplied) 24. Although the impugned award is not elaborative, in view of the detailed discussion made above, this Court is of the view that learned Tribunal has discussed the relevant issues to be considered for answering the reference. That apart, though the impugned award was passed on 19.09.2013, the writ petition has been preferred on 20.09.2017, without explaining the delay of around four years. In that view of the matter, more particularly the admitted pleadings on record so also settled position of law, W.P.(C) No. 20644 OF 2017 Page 14 of 15 as detailed above, this Court finds no infirmity in the impugned award under Annexure-3 deserving interference. 25. Accordingly, the impugned award stands confirmed. The writ petition, being devoid of any merit, stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs. 26. As the Opposite Party workman is out of employment since 20.08.2010 and despite order passed by this Court, payment in terms of Section 17-B of the Act has not been made during pendency of the writ petition, in order to save the poor workman from further hardship, the Petitioner-Management is directed to reinstate the Opposite Party-Workman forthwith in terms of the direction given vide the impugned Award. It is made clear that so far as unpaid wages from 01.03.2009 to 20.08.2010, as awarded by the learned Tribunal, as well as wages for the post award period, it would be open for the Opposite Party-Workman to approach the appropriate forum for computation of the same and payment of wages for the period from the date of the award till the date of his actual reinstatement, in addition to the wages from 01.03.2009 to 20.08.2010. Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Mar-2025 15:33:33 Orissa High Court, Cuttack, Dated 11th March, 2025/Banita W.P.(C) No. 20644 OF 2017 (K.R. Mohapatra) Judge (S.K. Mishra) Judge Page 15 of 15