State of Orissa &
ANR. Vs. Bilash Chandra Ojha [2009] INSC 644 (27 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1966 OF 2009 (Arising
out of SLP (C) No.4166 of 2007) State of Orissa & Anr. ..Appellants Versus
Bilash Chandra Ojha ..Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a learned Single Judge of the Orissa
High Court dismissing the writ petitions filed by the appellants. In the Writ
Petitions filed by the appellants the challenge was to the order passed by the
Presiding Officer, Labour Court in I.D. Case No. 71 of 1988.
3.
Background
facts in a nutshell are as follows:
The industrial
dispute was initiated by the respondent workman, inter alia, challenging the
termination of his service. Conciliation having failed, the State Government in
exercise of the powers conferred upon it under Section 10 read with Section 12
of the Industrial Disputes Act, 1947 (in short the `Act') referred the
following dispute to the Labour Court for adjudication. The reference read as
follows:
"Whether the
termination of Sri Bilash Chandra Ojha, Compositor from service by the
management of M/s. Information and Publication Printing Press, Krushi Sambada
Sarabaraha Sanstha in November, 1981 is legal and/or justified? If not to what
relief Sri Ojha is entitled? The case of the workman before the Labour Court
was that he was engaged as a Compositor by the Management from 14.3.1980 till
10.10.1981. He asserted that as statutory provisions of Section 25 F of the Act
having not been complied with the order of termination of his service was
unjust, illegal and he was entitled to reinstatement in service with full back
wages.
The management appeared
before the Labour Court and filed a written statement admitting the fact that
the workman was engaged under it but then took a stand that he had voluntarily
abandoned his service and, as such, he was not entitled to any relief. It was
also pleaded that the appellant is not an industry and, therefore, the Act had
no application. It was also pleaded that the claim of the workman of having
worked for more than 240 days was without any basis. The workman had appeared
at a test for selection, but was not successful.
The labour court
found that the workman worked continuously for more than 240 days in the
calendar year preceding the date of termination of the service. Therefore, the
mandatory provisions of Section 25-I of the Act were not complied with and, therefore,
the termination was unjust and illegal. Therefore, the Labour court directed
reinstatement but without back wages. The Award was assailed by the appellants
in a writ petition. The High Court dismissed the same holding that the
conclusion of the Labour Court that the workman had worked for more than 240
days, was based on available material. Additionally, the mandatory provisions
of Section 25(F) were not complied with.
3. In support of the
appeal learned counsel for the appellant submitted that various stands taken by
the appellant have not been considered. Basic stand was taken before the Labour
Court that the appellant is not an industry. That question has not been
decided. The Labour Court had directed and held that though the respondent was engaged
on casual basis, he deserves to be regularized. Further stand of the appellants
that he had abandoned the work has not been considered also. It is pointed out
that the Conciliation Officer categorically recorded while holding that there
was failure of conciliation that a test was held in February, 1982 where the
respondent had appeared and was unsuccessful. It was also noted that the
respondent had not worked for more than 240 days in one calendar year, and he
was engaged only as a casual labourer and had abandoned the job and was not
thrown out employment as claimed.
4. Learned counsel
for the respondent on the other hand submitted that the Labour Court and the
High Court have taken note of the relevant aspects and there is no scope for
any interference.
5. We find that
neither the Labour court nor the High Court considered the relevant aspects
like whether the Agricultural Department of the Government of Orissa is an
Industry and that whether there was any scope for being regularised when admittedly
the Labour court found that the respondent was engaged on casual basis. The
other question was whether there was any termination or whether the respondent
had abandoned the work. These factors apparently have not been considered.
Further the question whether the respondent had worked for more than 240 days
in a calendar year has also not been considered in the proper perspective. That
being so, the impugned order cannot be maintained and is set aside. The matter
is remitted to the High Court to consider the relevant aspects afresh.
6. The appeal is
allowed.
................................................J.
(Dr. ARIJIT PASAYAT)
...........................................J.
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