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2006 DIGILAW 466 (ORI)

State of Orissa v. Rabinarayan Mohapatra

2006-06-28

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : The management of the Executive Engineer, Jambhira Canal Division, Subarnarekha Irrigation Project, Laxmiposi, Baripada has filed this writ petition inter alia chal¬lenging the award dated 8th October, 2004 passed by learned Labour Court, Bhubaneswar in I.D. Case No.44 of 1997. Admittedly the opposite party-workman was engaged by the management as a daily rated laburer. He was retrenched on 31.07.1993. Consequent¬ly a dispute was raised by the workman. Conciliation having failed the State Government in exercise of powers conferred by Sub-section (5) of Section 12 read with clause (c) of Sub-sec¬tion(i) of Section 10 of the Industrial Disputes Act, 1947 re¬ferred the following dispute to the labour Court for adjudication :- “Whether the action of the Executive Engineer, Jambhira Canal Division, Subarnarekha Irrigation Project, Laxmiposi, Dist : Mayurbhanj in retrenching Sri Rabinarayan Mohapatra with effect from 01.08.1993 is legal and/or justified ? If not, to what relief Sri Mohapatra is entitled ?” 2. The contention of the opposite party-workman before the Labour Court was that, he was engaged as a D.L.R. (Mate) under the petitioner management with effect from 01.08.1992. He contin¬uously worked there till 31.10.1992. Thereafter he was engaged as a contingent Khalasi from 01.11.1992 to 31.03.1993. Again he was engaged as a semi-skilled N.M.R. w.e.f. 01.02.1992 to 31.07.1993. Thus according to the workman he had rendered continuous uninter¬rupted service from 01.08.1992 to 31.07.1993. But then the man¬agement without following the mandatory requirements of Section 25-F of the Industrial Disputes Act, 1947 retrenched him. Ac¬cording to workman, the order of retrenchment was illegal and it is a fit case where the same should be quashed. 3. The management entered appearance and filed a written statement taking the stand that the workman was engaged on purely temporary basis and he had not rendered service for 240 days in a calendar year in one post. It is further alleged that the re¬trenchment of the workman was due to reduction of work. Since the workman did not work for more than 240 days in a post, the provi¬sions of Section 25-F of I.D. Act were not attracted and the question of payment of any compensation and/or issue of notice did not arise. 4. On the basis of the pleadings the labour Court framed two issues. Both the parties adduced oral and documentary evi¬dence. The workman got himself examined as W.W.1. 4. On the basis of the pleadings the labour Court framed two issues. Both the parties adduced oral and documentary evi¬dence. The workman got himself examined as W.W.1. In his evidence the workman substantiated his case to the effect that he worked under the management continuously from 01.08.1992 to 31.07.1993 and that without giving any prior notice, notice pay or retrench¬ment compensation he was retrenched illegally. 5. The management witness No.1 in his evidence admitted the case of the workman and stated that he had worked continuous¬ly without any break under the management w.e.f. 01.08.1992 to 31.07.1993. 6. Basing upon the said evidence the Labour Court came to the conclusion that the workman had continuously worked for more than 240 days in a calendar year and the order of retrenchment, without following the mandatory provisions of Section 25-F of the I.D. Act was illegal and liable to be set aside. On the basis of such conclusion the labour Court set aside the order of retrench¬ment of the workman and directed the management to reinstate him in service with lump sum compensation of Rs.5,000/- (Rupees Five thousand only) in lieu of back wages. The said order as stated earlier is assailed in this writ petition. 7. Learned counsel for the petitioner-management submits that as the petitioner did not work in a post continuously for 240 days the provisions of Section 25-F were not applicable. He submits that the workman was actually engaged from 01.11.1992 to 28.01.1993 as a Khalasi and thereafter was engaged as a D.L.R. (Mate), and then as a semi-skilled N.M.R. w.e.f. 01.02.1992 to 31.07.1993. According to learned counsel for the State the labour Court failed to appreciate the fact that the petitioner did not work in one post and as such he was not entitled to any notice or compensation. Thus the order of retrenchment did not suffer from the vice of non-compliance with the Provisions of Section 25-F of the Industrial Disputes Act. 8. Section 25-F of the I.D. Act stipulates that 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 the provisions mandatorily required under Section 25-F are complied with the Legislature in its wisdom has used the expression “continuous service for not less than one year” in Section 25-F of the I.D. Act. Thus the submission made by the petitioner that the workman had not worked continuously in one post has no legs to stand. Reading of the provision of the Act leads to the conclusion that what the statute requires, is, continuous service for not less than one year under one manage¬ment and not in one particular post. In fact the management wit¬ness has clearly admitted that the workman worked without any break under the management w.e.f. 01.08.1992 to 31.07.1993. Thus the workman was in continuous service under the management for more than 240 days in a calendar year, which satisfied the manda¬tory requirement of Section 25-F of the I.D. Act. 9. In view of the aforesaid clear and admitted position, I find that the Labour Court has not committed any illegality or irregularity in holding that the workman was in continuous serv¬ice for more than 240 days in a calendar year and the order of retrenchment was passed in violation of the mandatory requirement stipulated under Section 25-F of the I.D. Act. 10. After going through the materials this Court also holds that the provisions of Section 25-F of I.D. Act are mandatory and any violation thereof will render the retrenchment ab initio void. After careful examination of the materials available, particularly the evidence of M.W.1 and other documents, I am satisfied that the labour Court has not committed any illegality or irregularity and the impugned award does not suffer any in¬firmity. Law is well settled that in a certioarari proceeding the findings of fact arrived at by a subordinate tribunal should not be interfered with unless the Court comes to a conclusion that such findings are either perverse and/or based on extraneous consideration and/or suffer from palpable illegality apparent on the face of the record. Scrutiny of the impugned award leads to the conclusion that the labour Court has taken into consideration the inter se pleadings and the evidence adduced by parties, both oral and documentary in proper perspective and its findings are just and proper. The said findings do not suffer from any vice and call for no interference. That apart the dispute was referred in the year 1997 and the award was passed in the year 2004. Two years have passed in the meanwhile. I am therefore not inclined to interfere with the award. The writ application is accordingly dismissed.