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2005 DIGILAW 306 (ORI)

HEMALATA SAHOO v. PRESIDING OFFICER, LABOUR COURT, BHUBANESWAR

2005-05-05

A.S.NAIDU

body2005
A. S. NAIDU, J. ( 1 ) THE petitioner disputing her disengagement from service with effect from may 31, 1993 by the Management of D. A. V. Public School, Chandrasekharpur, bhubaneswar raised an industrial dispute. Conciliation having failed, the State government referred the following dispute to the Labour Court, Bhubaneswar for adjudication:"whether the action of the Management of d. A. V. Public School, Chandrasekharpur, bhubaneswar in terminating the service of smt. Hemalata Sahoo, Aya with effect from may 31, 1993 is legal and or justified? If not, what relief Smt. Sahoo is entitled to?" ( 2 ) ACCORDING to the petitioner she was engaged as an Aya under Opposite Party No. 2-Management with effect from November, 1991 and was being paid daily wages. She continued in service for about two years. Though she was required to look after the children of the school and also to do the work of a Peon as and when required, she was directed to do the domestic work at the residence of the Principal of the School. She having expressed her unwillingness, the principal bore grudge on her and on and from july 21,1993 she was not permitted to perform her duties and was told that her services had been terminated. It is asserted that as no notice had been served on her nor the mandatory requirements of the Industrial Disputes Act had been complied with before her termination from service, the order of termination was ab initio void and the same was to be set aside. ( 3 ) THE Management-Opposite Party No. 2 on receiving notice appeared before the labour Court and filed its written statement repudiating almost all the allegations made by the petitioner- workman and taking the stand that the petitioner was never a regular employee under it. It was stated that as and when necessity arose the petitioner was being engaged on daily wage basis, that too only with effect from January 3, 1992 and not from november, 1991 as falsely alleged by the petitioner. According to the Management the petitioner never rendered continuous service of 240 days in any calendar year. In fact she was engaged only for 162 days in the year 1992 and 118 days in the year 1993, that too not continuously. ( 4 ) ON the basis of the pleadings of the parties, the Labour Court framed as many as five issues. In fact she was engaged only for 162 days in the year 1992 and 118 days in the year 1993, that too not continuously. ( 4 ) ON the basis of the pleadings of the parties, the Labour Court framed as many as five issues. In course of trial the petitioner-workman got examined two witnesses while Opposite Party No. 2-Management got examined five witnesses. The labour Court after discussing the evidence, both oral and documentary, arrived at the conclusion that the petitioner-workman was not a regular employee under the Management and that she having never worked continuously for 240 days in a calendar year, no notice or pay in lieu thereof or even retrenchment compensation was necessary to be given to her, and therefore the order of termination could not be held to be illegal and/or unjustified. The reference was thus answered in negative. ( 5 ) THE petitioner-workman has approached this Court assailing the aforesaid award of the Labour Court. Learned counsel for the petitioner-workman submits that the labour Court has not taken into consideration the evidence on record in its proper perspective. The conclusions arrived at by the said Court are also contrary to the evidence and, as such, it is a fit case where the Award should be set aside. Learned counsel for opposite Party No. 2-Management, on the other hand, relying upon the evidence adduced in the case, submitted that the Labour Court has discussed the entire evidence on record and has arrived at just conclusions. The award does not suffer from any infirmity or illegality, nor does it suffer from the vice of non-consideration of any evidence. According to him it is not a fit case where this Court should interfere with the award of the Labour Court in exercise of its jurisdiction under Article 227 of the constitution of India. ( 6 ) LAW is well settled that while exercising jurisdiction under Article 227 of the constitution of India this Court does not act as an Appellate Court, and unless the impugned award suffers from the vice of absurdity, bias or non-consideration of materials available on record, and/or any error apparent on the face of the record is brought to the notice of this court, it should be slow to interfere with the same. In the touch-stone of the aforesaid principle of law, this Court scanned through the materials available on record. In the touch-stone of the aforesaid principle of law, this Court scanned through the materials available on record. It appears that the petitioner- workman could not produce any material worth-the-name to prove that she had worked for more than 240 days in any calendar year preceding her alleged termination from service. The allegation that as the Principal of the School misbehaved with her and coerced her to do domestic work has not been substantiated. In her own evidence the petitioner-workman has clearly admitted that no written complaint had been made by her before the Trust Board and/or the Chairman. ( 7 ) SECTION 25-F of the Industrial Disputes act lays down the conditions precedent for retrenchment of a workman. The Section requires fulfillment of three conditions before a workman employed in any industry in continuous service for not less than one year is retrenched as follows: (i) the employer has to give the workman to be retrenched one month's written notice specifying the reasons for retrenchment and after the period of notice has expired, or instead of sending any such notice, he (employer) may straight away retrench the workman by paying him one month's wages in lieu of the notice; (ii) the employer shall also pay to the workman compensation at the time of retrenchment at the rate of 15 days' average pay for every completed year of continuous service or any part thereof in excess of six months; and (m) the employer is required to serve notice of retrenchment on the appropriate government or such authority, as may be specified by the Government in the Rules framed under the I. D. Act. But then, the sine qua non for application of the aforesaid three conditions, as the Section itself reveals, is on completion of continuous service for not less than one year by the workman. But then, the sine qua non for application of the aforesaid three conditions, as the Section itself reveals, is on completion of continuous service for not less than one year by the workman. In the present case it appears that the management has proved by adducing evidence, both oral and documentary, that the petitioner-workman had only worked for 162 days in the year 1992 and 118 days in the year 1993, that too on daily wage basis So far continuous service is concerned as per Section 25-B of the I. D. Act, the workman during a period of twelve calendar months preceding the date with reference to which calculation is to be (sic) made should have actually worked for a period of 190 days in the case of a workman employed below ground in a mine and 240 days in other cases. ( 8 ) IN view of the aforesaid clear position of law, the conclusions arrived at by the Labour court is found to be just and proper. The impugned Award reveals that the Labour Court has discussed the evidence in extenso, put just questions and has arrived at right answers. There being no error apparent on the face of the record, the Award calls for no interference by this Court. ( 9 ) IN the result, the Writ Application is dismissed. Parties to bear their own respective costs.