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2023 DIGILAW 183 (JHR)

Dilip Kumar Singh v. State of Jharkhand

2023-02-16

SUBHASH CHAND, SUJIT NARAYAN PRASAD

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ORDER : 1. Since common issue is involved in all the four appeals, therefore, they have been heard together and are being disposed of by this common order. 2. The instant appeals, preferred under Clause 10 of the Letters Patent, are directed against the order/judgment dated 21.10.2014 passed by learned Single Judge of this Court in W.P. (L) No. 1772 of 2004 and batch cases whereby and whereunder the Award dated 13.08.2003 passed in B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993 has been quashed and set aside on the ground that the learned Labour Court has no jurisdiction to pass order under the provision of Jharkhand Shops and Establishment Act since Swarnarekha Multi Purpose Project is not establishment in terms of the definition of “establishment” as contained under Section 2(6) of the Jharkhand Shops and Establishment Act. 3. Brief facts of the case as per the pleadings made in the writ proceedings, which are required to be enumerated herein, read as under. 4. The appellants were working in Swarnarekha Multi Purpose Project from 01.11.1990 as security guard on daily wages of Rs. 24/- per day which was enhanced to Rs. 25.50 per day. They were terminated on 30.03.1993 and being aggrieved with their termination, they filed B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993 before the learned Presiding Officer, Labour Court, Jamshedpur with a prayer for setting aside the order of discharge dated 30.03.1993 and for a further direction to reinstate them in service with all consequential benefits. 5. The respondent appeared before the learned Labour Court and filed show cause denying that the appellants were employees of Swarnarekha Multi Purpose Project, Adityapur Division. 6. It has also been stated that they were purely casual labours during the period from 01.11.1990 to 31.12.1990 under M/s. Industrial Security Agency, Adityapur who used to supply labourers to the respondent under the Agreement dated 01.08.1990. It was also denied that the appellants worked for more than six months. 7. 6. It has also been stated that they were purely casual labours during the period from 01.11.1990 to 31.12.1990 under M/s. Industrial Security Agency, Adityapur who used to supply labourers to the respondent under the Agreement dated 01.08.1990. It was also denied that the appellants worked for more than six months. 7. The learned Labour Court, after hearing the parties, allowed B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993 vide Award dated 13.08.2003 holding the Swarnarekha Multi Purpose Project is an Establishment and the appellants of B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993 have worked for more than six months and therefore they are entitled to protection under section 26 (1) of the Bihar Shop & Establishment Act, 1953 and accordingly their termination order was set aside and the respondent was directed to reinstate the appellants with full back wages and other consequential benefits. 8. It appears from the fact, as referred hereinabove, that the appellants were working as Security Guards but were terminated from service and, as such, they have approached the Labour Court by filing application under Section 26(2) of the Shops and Establishment Act questioning the order of termination with a direction for their reinstatement in service with full back wages and consequential benefits. 9. The cases have been registered as B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993. The learned Labour Court has issued notice to the Swarnarekha Multi Purpose Project, Kharkai Canal Division, Adityapur, Jamshedpur, upon which due appearance was made before the Labour Court wherein the show cause has been filed and the claim of the appellants have been denied on the ground that the appellants were purely casual labours and worked during the period from 01.11.1990 to 31.12.1990 having been outsourced from M/s. Industrial Security Agency, Adityapur by virtue of Agreement dated 01.08.1990. 10. The learned Labour Court has framed following issues:— (a) Whether the Swarnarekha Multipurpose Project is an establishment? (b) Whether the applicants were in service of O.Ps? (c) Whether the applicants work for more than six months in Swarnarekha Multipurpose Project? (d) Whether they are entitled for a relief as prayed? (e) To what relief or reliefs the applicants are entitled for? 11. (b) Whether the applicants were in service of O.Ps? (c) Whether the applicants work for more than six months in Swarnarekha Multipurpose Project? (d) Whether they are entitled for a relief as prayed? (e) To what relief or reliefs the applicants are entitled for? 11. The learned Labour Court has held Swarnarekha Multi Purpose Project to be an “Establishment” and passed order of reinstatement with back wages in favour of the appellants. 12. The State of Jharkhand through Swarnarekha Multi Purpose Project, being aggrieved with the order passed by the Labour Court in B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993, has challenged the same before this court by filing writ petitions wherein the ground has been taken that no evidence have been adduced by the applicants either oral or documentary on the point whether Swarnarekha Multi Purpose Project is an establishment but even then the learned Labour Court has recorded a finding that Swarnarekha Multi Purpose Project is an “Establishment” and, as such, the aforesaid finding is not sustainable in the eye of law. 13. Learned Single Judge, on the aforesaid ground and after considering the provision of Section 2(6) which contains a provision under the Jharkhand Shops and Establishment Act, has considered the aforesaid finding of the learned Labour Court holding Swarnarekha Multi Purpose Project to be an “Establishment” has given a finding to the effect that Swarnarekha Multi Purpose Project cannot be held to be an “Establishment” and, as such, the order passed in B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993 has been held to be without jurisdiction and the order dated 13.08.2003 has been quashed, which is subject matter of the instant intra-court appeals. 14. Mrs. 14. Mrs. Ritu Kumar, learned counsel appearing for the appellants, has taken the ground by referring to the order passed by the learned Labour Court in the context of dealing with the issue as to whether Swarnarekha Multi Purpose Project is an “Establishment”, has submitted that the evidence although was not adduced before the learned Labour Court in order to substantiate that Swarnarekha Multi Purpose Project is an “Establishment” or not but the State since has not denied the same, as would appear from paragraph-9 of the Award, therefore, the learned Labour Court, after considering the admission to that effect that Swarnarekha Multi Purpose Project is an “Establishment” and thereafter the order has been passed reinstating the appellants in service with back wages. 15. Learned counsel for the appellants, therefore, has submitted that the State since has not disputed that Swarnarekha Multi Purpose Project is not an “Establishment” although show cause has been filed wherein the issue of termination was contested on merit and if in that pretext Swarnarekha Multi Purpose Project has been held to be an “Establishment” by the learned Labour Court, the same cannot be said to suffer from an error and it is also not available for the State to take the plea that the appellants have not filed any documents to established that Swarnarekha Multi Purpose Project is an “Establishment.” 16. Learned counsel for the appellants, in that pretext, has submitted that the order passed by learned Single Judge holding the finding recorded by the Labour Court to be erroneous, cannot be said to be proper finding and in that view of the matter, the order passed by the learned Single Judge requires interference by this Court. 17. Mr. Learned counsel for the appellants, in that pretext, has submitted that the order passed by learned Single Judge holding the finding recorded by the Labour Court to be erroneous, cannot be said to be proper finding and in that view of the matter, the order passed by the learned Single Judge requires interference by this Court. 17. Mr. Munna Lal Yadav, learned SC (L&C)-III, appearing for the State of Jharkhand, has submitted that the writ petition was filed solely on the ground that the finding so recorded by learned Labour Court holding Swarnarekha Multi Purpose Project to be an “Establishment” since is based upon no consideration, reason being that no document has been filed on behalf of the appellants in order to substantiate that Swarnarekha Multi Purpose Project is an “Establishment” and, therefore, the order passed by learned Labour Court has been challenged by filing writ petition wherein, after due deliberation by the learned Single Judge and on taking into consideration the definition of “Establishment” as contained under Section 2(6) of the Jharkhand Shops and Establishment Act, the finding if recorded, holding Swarnarekha Multi Purpose Project to be not an “Establishment”, the same cannot be said to suffer from an error. 18. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order. 19. The core issue which requires consideration in this case is as to whether Swarnarekha Multi Purpose Project is an “Establishment” or not within the meaning of Section 2(6) of the Jharkhand Shops and Establishment Act. 20. This Court, in order to answer the aforesaid issue, requires to refer herein the factual aspect of the matter to the extent that the appellants being aggrieved with the order of their termination while working in Swarnarekha Multi Purpose Project as Security Guard has approached the learned Labour Court under Section 26(2) of the Jharkhand Shops and Establishment Act. 21. The show causes were issued in all these cases and there was appearance on behalf of Swarnarekha Multi Purpose Project and due show cause was also filed. 22. 21. The show causes were issued in all these cases and there was appearance on behalf of Swarnarekha Multi Purpose Project and due show cause was also filed. 22. It appears from the abstract of the show cause as has been referred by the learned Labour Court in the order dated 13.08.2003 wherein no reference of issue of maintainability of the applications filed by the appellants has been raised, rather, the issue on merit, i.e., the legality and propriety of the order of termination, has been raised in the said show cause by taking the point that the appellants have never been engaged by Swarnarekha Multi Purpose Project, rather, they have been outsourced from an agency i.e., M/s. Industrial Security Agency, Adityapur and since there is some irregularity in discharge of duties, therefore, they have been disengaged/terminated. 23. Learned Labour Court, while considering the issue of termination, has framed altogether five issues and one of the issues was as to whether Swarnarekha Multi Purpose Project is an “Establishment” or not? The said issue is required to be answered first since the same relates to the question of entertaining or maintaining the application filed on behalf of the appellants wherein the issue of termination was the subject matter. 24. Learned Labour Court has first answered the aforesaid issue holding Swarnarekha Multi Purpose Project to be and “Establishment.” Such finding has been recorded on the basis of consideration of the fact that there was no averment in the show cause questioning the issue of maintainability of the application so filed by the appellants before the learned Labour Court under the provision of Section 26(2) of the Jharkhand Shops and Establishment Act. 25. Learned Labour Court, after considering the aforesaid fact that there is no denial about the fact that the Swarnarekha Multi Purpose Project is an “Establishment” having been raised on behalf of the concerned Project, therefore, the issue has been answered in favour of the appellants holding Swarnarekha Multi Purpose Project to be an “Establishment” for ready reference, the part of the said order passed by the learned Labour Court requires to be referred herein which reads hereunder as:— “In view of the discussions made above and evidence on record I am of the opinion that Swarnarekha Multipurpose Project is an establishment and the applicants of B.S. Case No. 3/1993, 4/1993, 5/1993 and 6/1993 have worked for more than six months. The applicants of aforesaid cases are entitled to protection u/s. 26(I) of Bihar Shops and Establishment Act. Accordingly the termination order in B.S. Case No. 3/1993, 4/1993, 5/1993 & 6/1993 is set aside and the O.Ps are directed to reinstate the applicants with full back wages & other consequential benefits.” 26. The position of law is well settled that the question of maintainability of an application is to be decided first without entering into the merit of the actual claim. 27. It is also equally settled that when an application is being filed before any forum for consideration/adjudication of the claim, the objection is required to be raised on behalf of other side regarding its maintainability. But, as would appear from the finding recorded by the learned Labour Court while answering the issue holding Swarnarekha Multi Purpose Project to be an “Establishment”, there is no denial on the part of the State but when the order was passed in favour of the appellants, then the same has been challenged before this Court in exercise of power conferred under Article 226 of the Constitution of India by taking the ground that the appellants have not filed any document in order to substantiate that Swarnarekha Multi Purpose Project is an “Establishment.” The writ petition has been entertained and the learned Single Judge has come to a finding holding the aforesaid finding recorded by the learned Labour Court to be erroneous on the ground that the Swarnarekha Multi Purpose Project cannot come under the fold of definition of “Establishment” within the meaning of Section 2(6) of the Jharkhand Shops and Establishment Act and reason assigned for coming to such conclusion is that no documents have been adduced by way of evidence before the learned Labour Court by the appellants. 28. There is no dispute about the fact that when a party is choosing a forum, the requirement is to file an application by him which can be a wrong forum but the issue of its maintainability is required to be raised by the other side against which the claim has been sought for. 29. 28. There is no dispute about the fact that when a party is choosing a forum, the requirement is to file an application by him which can be a wrong forum but the issue of its maintainability is required to be raised by the other side against which the claim has been sought for. 29. The matter would have been different if the order has been passed ex-parte but that is not the case herein, rather, after accepting the application filed on behalf of the appellants, the show causes have been issued and the case was contested on its merit without raising the issue of maintainability and the issue of maintainability has been raised before the writ court. 30. There is no dispute about the position of law that the issue of jurisdiction even though has not been raised before the original forum, that can be raised before the higher forum. But, if such issue has been raised before the higher forum on the basis of the fact that the documents have been produced on behalf of either party, the proper course for the higher forum, according to our considered view, is to remand the matter back before the original forum for its due consideration on the basis of appreciation of the relevant documents in order to come to the conclusion about the issue. But, herein, the learned Single Judge has reached to the conclusion that Swarnarekha Multi Purpose Project will not come under the fold of “Establishment” on the ground that the documents have not been placed before the learned Labour Court basis upon which the finding has been held to be erroneous and, accordingly, the order dated 13.08.2003 passed in B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993 has been quashed. 31. 31. Since herein, even accepting the fact that Swarnarekha Multi Purpose Project has not raised the issue before the learned Labour Court but now has taken the plea that it is not an “Establishment” within the meaning of Section 2(6) of the Jharkhand Shops and Establishment Act, hence, in our considered view, the proper course would be that fresh adjudication of the issue about maintainability of the applications filed under Section 26(2) of the Jharkhand Shops and Establishment Act by answering the issue as to whether Swarnarekha Multi Purpose Project is an “Establishment” within the meaning of Section 2(6) of the Jharkhand Shops and Establishment Act, be made. 32. This Court, after having discussed the factual aspect as above, is of the view that the learned Single Judge has not considered this aspect of the matter and the fault which was committed on behalf of Swarnarekha Multi Purpose Project by not adducing any evidence, rather, not a single statement has been made before the learned Labour Court questioning the issue of maintainability of the applications on the ground that the Swarnarekha Multi Purpose Project is not an “Establishment” but even then the order has been quashed for the laches committed on the part of Swarnarekha Multi Purpose Project. 33. Therefore, according to our considered view, the proper course would for the just decision of the issue, that the matter is required to be remanded before the learned Labour Court for the adjudication of the dispute by granting liberty to the parties to adduce evidence to substantiate their rival claims and for coming to the conclusion as to whether Swarnarekha Multi Purpose Project is an “Establishment” within the meaning of Section 2(6) of the Jharkhand Shops and Establishment Act or not. 34. In that view of the matter, the order passed by the learned Single Judge requires interference. 35. Accordingly, the order dated 21.10.2014 passed in W.P. (L) No. 1772 of 2004 and batch cases, is set aside. 36. The B.S. Case No. 03 of 1993, 04 of 1993, 05 of 1993 and 06 of 1993 are hereby restorerd to its original file. 37. The learned Labour Court is directed to proceed afresh. 38. The parties concerned are directed to lead their evidence pertaining to issue as to whether Swarnarekha Multi Purpose Project is an “Establishment” within the meanting of Section 2(6) of the Jharkhand Shops and Establishment Act or not. 37. The learned Labour Court is directed to proceed afresh. 38. The parties concerned are directed to lead their evidence pertaining to issue as to whether Swarnarekha Multi Purpose Project is an “Establishment” within the meanting of Section 2(6) of the Jharkhand Shops and Establishment Act or not. 39. The parties have given undertaking before this Court that they will put their appearance before the learned Labour Court and will not seek unnecessary adjournments therein. 40. The learned Labour Court is directed to conclude the proceeding within a period of three months from the date of receipt/production of copy of this order. 41. Accordingly, the instant appeals are disposed of with the aforesaid observations and directions.