Divisional Forest Officer vs Chamarin Bai and Another

S.K. Agnihotri, J.—The petitioner, Divisional Forest Officer, impugns the legality and validity of the award dated 30.08.1996 (Annexure P/4) passed by the Labour Court, Bilaspur in case No.17/IDA/82(Ref), whereby it was held that the provisions of section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the IDA'') was not complied with and as such, the order of retrenchment passed by the petitioner was illegal, and accordingly, the petitioner was directed to reinstate the respondent No.1 with full back wages.

The facts, as projected by the petitioner, in brief, are that the original respondent No.1 namely Sukaluram was engaged as Chowkidar in the year 1996 as casual labour with the petitioner as per the requirement of work. Sukaluram was muster-roll employee, not appointed in accordance with the constitutional scheme of employment. His service was engaged in the forest depot. Sukaluram was never appointed as a regular employee so asto attract the provisions of Article 311 of the Constitution of India. Sukaluram was never in continuous service.

Shri Thakur, learned Deputy Advocate General appearing for the state/Petitioner would submit that the Labour Court, without considering all the facts held that Sukaluram was the employee of the petitioner for a period of 15 years, thus, completed 240 days. Accordingly, the impugned award directing reinstatement with full back-wages was passed on 30.08.1996 (Annexure P/4), This deserves to be quashed as being perverse and illegal.

Per Contra, Shri Ashish Shrivastava with Shri Harsh Vardhan, learned counsel appearing for the respondent No.1 would submit that the respondent No.1-Sukaluram died during the pendency of the writ petition and her sole legal heir i.e. the wife namely Chamarin Bai was brought on record., Shri Shrivastava would further submit that Sukaluram continued in service till 1995 without any break. Since the Respondent No.1 was working continuously, he had completed 240 days. Thus, the award passed by the Labour Court is just and proper.

On perusal of the award, it is evident that firstly, no issues were framed and secondly, without recording the finding that Sukaluram had worked for 240 days in the preceding year, on the basis of statement of respondent-Sukalurma that he had worked for 15 years, it was held that there was non-compliance of section 25F of the IDA. Thus, reinstatement in service with full back-wages was directed, holding the retrenchment to be illegal. The learned Labour Court has ignored completely the facts and law on the point that respondent-Sukaluram has not even pleaded that he had worked for 240 days in the preceding year. The averments of respondent-Sukaluram in statement of claims reads that he had worked for 15 years and as such, he has completed 240 days of service as required u/s 25B of the IDA. Therefore he may be reinstated in service.

In the written statement filed by the petitioner, it was clearly stated that there was no appointment order appointing Sukaluram as Chowkidar. His services was engaged in the year 1976 for work during the period from November to May as Chowkidar on daily wages basis. The services of the Chowkidar was required in the forest depot only during the period from November to May, when the timbers were brought in and taken out form the forest depot. Therefore, no question of any notice or compliance of provisions of section 25F of the IDA arises.

Upon perusal of the pleadings and documents appended thereto and hearing of the parties, it is evident that the Labour Court has failed to record the finding that respondent-Sukaluram had worked for a period of 240 days in the preceding year. In absence of working of 240 days in a year, the provisions of section 25F of the IDA would not be attracted. There is no other evidence to indicate that respondent-Sukaluram had worked regularly when there is a specific pleading by the petitioner that the services of Sukaluram was engaged only for the period from November to May, when the timbers were brought in and taken out from the forest depot.

The Supreme Court, in Sita Ram and Others Vs. Moti Lal Nehru Farmers Training Institute, , observed as under:

The question asto whether the burden of proof was on the employer or on the workman is no longer res integra. It would be on the workman to prove that he had worked for two hundred and forty days in a year. However, where both the parties have adduced evidences, in most of the case, the question would be academic.

In ONGC Ltd. v. Ilias Abdulrehman it was held:

A perusal of the evidence adduced by the workman himself shows that he want in search of employment to different places and whenever there was a temporary employment available in different departments of the appellant ''Corporation, be it field work or the work in the Chemistry Department, he accepted the employment and worked in these department not in one place but at different places like Baroda and Mehsana. It has come on record that the management did try to accommodate the appellant in a permanent job but could not do so because of lack of qualifications. In such circumstances we think that the Industrial Tribunal was justified in coming to the conclusion that the number of days of work put in by the respondent in broken period, cannot be taken as a continuous employment for the purpose of Section 25-F of the Act, as has been held by this Court in Indian Cable Co Ltd. We are aware that the judgment of this Court in Indian Cable Co. Ltd. Was rendered in the context of section 25-G of the Act, still we are of the opinion that the law for the purpose of counting the days of work in different departments controlled by an apex Corporation will be governed by the principles laid down in Indian Cable Co. Ltd. And the Industrial Tribunal was justified in dismissing the reference.

(See also Range Forest Officer vs. S.T. Hadimani, R.M. Yellatti vs. Asstt. Executive Engineer, State of Maharashtra vs. Dattatraya Dingamber Briajdar (SCC para 8: Scale para 6) and Ganga Kisan Sahkari Chini Mills Ltd. vs. Jaiveer Singh).

Although at one point of time, the burden of proof used to be placed on the employer, in view of a catena of recent decision, it must be held that the burden of proof is on the workman to show that he has completed 240 days in a year.

Section 25F of the IDA provides for continuation of service for not less than one year under the employer, which shall entitle workman to the benefits of retrenchment compensation or one month''s notice in writing and retrenchment compensation payable before retrenchment. Continuous service for not less than one year under provisions of section 25 read with section 25B of the IDA means 240 days in the preceding year. The Labour Court has not calculated the working of 240 days in the preceding year but the total period from 1976 to 01.06.1991 and come to the conclusion that the Sukaluram has worked for more than 240 days. This is contrary to the well established principles of law. Thus, holding retrenchment as illegal, being not in accordance with the provisions of section 25F of the IDA is not proper and deserves to be set aside.

Applying the above well-settled principle of law to the facts of the present case, it cannot be held that it is a case of retrenchment covered u/s 25F of the IDA as the respondent-Sukaluram has failed to prove that he had worked for more than 240 days in the preceding year. Even otherwise, the respondent-Sukaluram was a daily wager, not appointed through open competion in accordance with law and as such, the appointment was de hors the constitutional scheme of public employment. It is well settled law that an employment i.e. daily wager, termporary (sic) hoc etc. made de hors the constitutional scheme of employment is illegal., null and void. Thus, the respondent-Sukaluram has no right to reinstatement, continuation or regularization in service (See Secretary, State of Karnataka and Others Vs. Umadevi and Others, and Official Liquidator Vs. Dayanand and Others, .

Accordingly, for the reasons aforestated, the impugned order dated 30.08.1996 (Annexure P/4) is set aside and the petition is allowed No order asto costs.

However, if any payment has been made to the respondent No.1 either under the provisions of section 17B of the IDA or otherwise, the same shall not be recovered from the respondent No.1.