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Madhya Pradesh High Court · body

2018 DIGILAW 297 (MP)

State of Madhya Pradesh v. Savitri Bai Ahirwar

2018-03-12

VIJAY KUMAR SHUKLA

body2018
ORDER : 1. Both the writ petitions are arising out of same award dated 29.12.2010 passed by the learned Labour Court, whereby the employee has been directed to be reinstated in service without back-wages as the termination of services has been found to be in violation of the provisions of Section 25 F of the Industrial Disputes Act, 1947. Both are being decided by the common order. 2. Brief facts as adumbrated in nutshell are that the employee Smt. Savitri Bai Ahirwar was employed w.e.f. 01.04.1993 as daily rated worker for a period of 89 days. 3. According to the employer her engagement was under the scheme of Pathya Pustak Nirman and since the scheme itself came to an end in the year, 1996 w.e.f. 17.02.1996, therefore, the services of the employee came to an end from the said date. It is also contended that the petitioner did not perform duties continuously for a period of 240 days in a preceding one calendar year and therefore the provisions of Section 25 F of the Industrial Disputes Act, 1947 (In short Act 1947) would not attract in the present case. 4. Writ petition W.P. No. 16617/2011 is filed by the employee challenging the award so far it relates to denial of the back-wages. The counsel submitted that since the employer has complied with the provisions of Section 17(B) of the I.D. Act, he does not want to assail the award in question. Thus the writ petition (W.P. No. 16617/2011) is dismissed as withdrawn in view of the statement made by the counsel for the employee. 5. In the writ petition (W.P. No. 19483/2011) filed by the employer it has been submitted that the learned Labour Court has erroneously held the termination to be violation of Section 25 F of the Act, 1947. It is submitted by him that from the various orders of appointment filed cumulatively as Annexure P-2 it is evincible that she was engaged for a period of 89 days and as per the need of the work, the employee was being engaged by them. It is contended that she had not worked continuously for a period of 240 days in a proceeding 12 months. 6. Learned counsel for the employee submitted that there is no illegality in the award. The employer could not prove that the employee was engaged in a particular scheme. It is contended that she had not worked continuously for a period of 240 days in a proceeding 12 months. 6. Learned counsel for the employee submitted that there is no illegality in the award. The employer could not prove that the employee was engaged in a particular scheme. She was assigned duties in the Pathya Pustak Cell, but the engagement was not under the scheme, therefore, the stand of the employer that the retrenchment is on account of the expiration of the term or closure of the scheme has not merit and is contrary to the record. 7. In order to appreciate the rival submissions of the parties, it is apposite to refer the statement of claim. In para-3 of the statement of claim a specific stand was taken that the employee had continuously worked from April 1993 to December, 1999. Para -3 of the statement of the claim is reproduced as under: **;g fd bl izdkj izFke Ik{k }kjk vizSy&1993 ls fnlEcj&1999 rd f}rh; i{k laLFkku esa yxkrkj fujUrj dk;Z lEikfnr fd;k gS mlds }kjk ,d dsys.Mj o"kZ esa 240 fnol ls vf/kd dk;Z fd;s tkus ds mijkUr ,d Lfkk;h Hk`R; dk Hkh LoRo fof/k dh n`f"V esa izkIr dj fy;k Fkk vkSj ,sls LFkk;h Jfed dh lsok;sa voS/kkfud :i ls lekIr fd;k tkuk fof/k dh ea’kk ds foijhr gksdj fof/k ds lqLFkkfir fl)karksa ds Hkh foijhr gSA vr% dh x;h lsok lekfIr fujLr fd;s tkus ;ksX; gSA** 8. In reply of the said para, the employer has not specifically denied the said fact. Para 3 of the reply to the statement of claim is reproduced as under: **;g fd pj.k Ø0&3 vLohdkj gS oLrq fLFkfr ;g gS fd vkosfndk dks mDr ifj;kstuk esa dk;Z iw.kZ u gksus dh n’kk esa 89&89 fnol ds vkns’k iznku fd;s x;s FksA izFke i{k ds }kjk ,d ifj;kstuk ds vf/kuLFk dk;Z fd;k x;k gS mDr fLFkfr esa LfkkbZ LoRo dk iz’u mRiUu ugha gksrk D;ksa fd ifj;kstuk iw.kZ :i ls cUn gks pqdh gSA** 9. The employer has examined the witness Sanjay Patwa. The employer has examined the witness Sanjay Patwa. Para-5 of his deposition is relevant, which is extracted as under: **5- ;g ckr lgh gS fd eq>s f}rh;i{k laLFkku }kjk izdj.k esa izHkkjh fu;qDr fd;k x;k gS mlh gSfl;r ls vkt lk{; ns jgk gw¡A eq>s izdj.k ds laca/k esa iwjh tkudkjh gsSA ;g ckr lgh gS fd izFke i{k o"kZ 1993 esa loZizFke gekjs ;gka fu;kstu esa vk;hA izFke i{k dk fu;kstu 17-02-96 rd jgkA Lor% ;gk fd mijksDr vof/k esa dk;Z ugha FkA mrus fnu dk cszd fn;k x;k A eSa ugha crk ldrk fd 01-01-1994 ls 31-12-1994 dh vof/k esa izFke i{k dks fdrus fnu ;k fdrus ekg dk czsd fn;k x;k A Lor% dgk fd fjdkMZ ns[kdj crk ldrk gw¡A mijksDr fLFkfr o"kZ 95 vkSj 96 dh Hkh gSA eSa fcuk fjdkMZ ns[ks ugha dg ldrk fd izFke i{k usa dc dc dk;Z fd;k gSA izFke i{k }kjk ftrus fnu dk;Z fd;k tkrk Fkk mrus fnu dks ekfld Hkqxrku dysDVj nj ij gksrk FkkA ;g ckr lgh gS fd izFke i{k usa 94 ls 96 rd dk;Z fd;k gSA** 10. Learned Labour Court after appreciating the evidence and the statements of the witness of the employer found that the employee was not engaged in the scheme as the employer could not prove the said fact. Further the employee has continuously worked from 1993 to 1996 i.e. 01.06.1993 to 17.02.1996. The break which has been stated by the employer has been treated to be artificial in nature. As per the claim of the employee, he has worked even for those days. Even otherwise whether an employee has worked for 240 days in a preceding calendar year or not is a question of fact. The learned Labour Court after appreciating facts and evidence has recorded a finding that the employee has worked for 240 days continuously in a preceding year. I do not find any perversity in the said finding warranting any interference under Article 226 of the Constitution of India. The view of this Court regarding the artificial break gets fortified by the judgment of the Apex Court reported in the case of Union of India and Others v. Ramchander and Another (2005) 9 SCC 365 . I do not find any perversity in the said finding warranting any interference under Article 226 of the Constitution of India. The view of this Court regarding the artificial break gets fortified by the judgment of the Apex Court reported in the case of Union of India and Others v. Ramchander and Another (2005) 9 SCC 365 . The relevant part of para-4 is reproduced as under: “The respondents were appointed against casual labourers but nevertheless they continued in service for four spells and that too their re-appointments were made immediately within a few days of termination on completion of 89 days. It shows that sufficient work was available with the employer and had there been no termination on completion of 89 days, they would have completed 240 days of continuous employment. In that view of the matter the appellants had violated Section 25-G of the Industrial Disputes Act. We do not find any error or illegality in the decision rendered by the Division Bench. We direct the appellants to re-employ the respondents as daily-wagers" 12. In view of the aforesaid conspectus, I do not find any illegality in the award passed by the Labour Court. Accordingly writ petition (W.P. No. 19483/2011) filed by the employer is dismissed. No order as to costs.