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2010 DIGILAW 960 (MP)

Mahesh Kumar Sharma v. Divisional Forest Officer

2010-09-22

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

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ORDER A.K. Shrivastava, J. --1. Feeling aggrieved by the award dated 14.12.2006 passed by learned Labour Court No.2, Gwalior, whereby reference has been answered against the workman and the action of respondents was not found to be illegal since the workman has failed to summon relevant record, this petition has been filed under Article 227 of the Constitution of India. 2. As per the statement of claim of the workman, he was employed as a daily wager under the employment of respondents since April, 1981 and he worked upto 31.10.1997 and by an oral order, his dry bread has been snatched and he has been thrown out of employment to face the hardship. According to the statement of claim, this workman has served for more than 240 days in a calendar year because he did serve from April, 1981 to 31.10.1997 continuously. 3. Learned counsel for the petitioner submits that overwhelming documentary evidence in that regard has been placed on record, which is Ex. P-1 to P-12, apart from the testimony of workman himself supported by Chaturbhuj Sharma, who was the then officer of this workman. 4. Learned counsel further submits that a pure finding of fact has been arrived at by learned Labour Court that by adopting the policy of hire and fire, by an oral order services of the petitioner/workman were terminated which is not permissible in the Industrial Law and the said action has also not been approved by the Constitution. It has also been put forth by learned counsel that there is overwhelming material placed on record that workman has served for more than 240 days in a calendar year. It has been proved that he has served from April, 1981 to 31.10.1997, but on account of slackness of the workman and on account of unawareness of the latest pronouncement of the Supreme Court, by which it has been held that it is for the workman to summon relevant record in order to prove that he has worked for more than 240 days in a calendar year, it cannot be said that his termination is not an illegal retrenchment, and therefore, matter may be remanded to learned Labour Court. 5. Per contra, Shri Gupta, learned Govt. 5. Per contra, Shri Gupta, learned Govt. Advocate for the respondent/State, vehemently argued that although Chaturbhuj Sharma has given statement in favour of workman, but the said officer was in the clutches of workman for the simple reason that after his retirement he has been examined, and therefore, certificate Ex. P-1 given by this witness cannot be taken into consideration. It has further been put forth by learned Govt. Advocate that it is the bounden duty of the workman to summon relevant record in order to prove that the action of the respondents amounts to illegal retrenchment and having not done so, now such relief cannot be granted to the workman/petitioner. 6. Having heard learned counsel for the parties, we are of the view that this petition deserves to be allowed and the matter is required to be sent back to learned Labour Court after setting aside that part of the impugned order by which it has been held that workman has failed to prove that he has worked continuously for more than 240 days in a calendar year. 7. On bare perusal of the finding recorded by learned Labour Court, we have no scintilla or doubt in holding that by adopting hire and fire policy, the services of the workman/petitioner were terminated by an oral order. This kind of action has never been appreciated by the Supreme Court as well as by this Court in catena of decisions. Indeed, at least some order should have been passed in order to indicate that why the services of workman are not necessary. The learned Labour Court has rightly found on the basis of evidence placed on record, which is a pure finding of fact, that by an oral order, services of the workman has been terminated. The said finding is hereby affirmed. 8. So far as the question of impugned relief in 'respect of reinstatement is concerned, suffice it to say that looking to the latest pronouncement of the Supreme Court, it was incumbent upon the workman to submit necessary application to Labour Court praying to summon relevant record so that it can be proved that he has worked continuously for a period of 240 days in a calendar year and his termination amounts to illegal retrenchment. Looking to the entire gamut of the matter, since the present petitioner is a very low paid daily wager employee and it cannot be said that he was well acquainted with the labour laws and if in that situation such an application was not moved before learned Labour Court, according to us, the doors of justice should not be closed in order to strangulate his neck and to snatch his dry bread which he used to eat without butter. According to us, the documents which shall be summoned from the department would be in corroboration to the very material documents Ex. P-1 to P-12 filed by the workman demonstrating that he had worked for more than 240 days in a calendar year as daily wager workman. We would like to clear that the documents. Ex. P-11 to P-12, which are filed by the workman, are quite relevant in order to prove the claim of workman. 9. In this view of the matter, we think it appropriate that matter should be remanded for limited purpose to learned Labour Court where the petitioner shall file an application praying to summon relevant record from the department and if such an application is moved, that will be allowed by learned Labour Court and the relevant record may be summoned to prove by corroborative piece of the documentary evidence which will be summoned from the department, as to whether the action of the employer amounts to illegal retrenchment or not. We would like to make it clear here that if employer fails to produce the relevant record, the Labour Court shall be free to draw adverse inference. 10. Looking to the old age of the case since the matter was referred by the appropriate Government to the Labour Court in the year 2002, the learned Labour Court shall decided the matter as early as possible preferably within two months from the date of filing of certified copy before that Court by the petitioner. 11. With the aforesaid observation, this petition is allowed and that part of the impugned order, by which it has been held that workman has failed to prove that he has worked continuously for more than 240 days in a calendar year, is hereby set aside and for limited purpose the matter is remanded back to learned Labour Court. 11. With the aforesaid observation, this petition is allowed and that part of the impugned order, by which it has been held that workman has failed to prove that he has worked continuously for more than 240 days in a calendar year, is hereby set aside and for limited purpose the matter is remanded back to learned Labour Court. The remaining part of the order of Labour Court, by which it has been held that by an oral order, services of the workman have been terminated, is hereby affirmed. The parties are directed to appear before learned Labour Court on 19th October, 2010. 12. In the facts and circumstances of the case, the parties are directed to bear their own costs.