Dismissed

Smt.Bittu Sharma v. State of Chhattisgarh and Ors.

Chhattisgarh HC10 Jan 2017WP/4037/2003

Case brief

AI extract

What is this about?

This petition challenged the Industrial Court order setting aside a Labour Court order classifying a daily wage employee as permanent and ordering reinstatement. The Single Judge dismissed the petition, holding the lower courts were correct.

What did the court decide?

The petitions were dismissed, upholding the order of reinstatement but rejecting the claim for permanent classification.

Smt.Bittu Sharma Vs State of… — Pension and Retirement Benefits | Chhattisgarh HC (2017)

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IN KU^HISH COURT^F JUbICATLfeE ATBILASnX

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(yiW-

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CHHATTIS6ARH

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Wrjt Petition No.±°^-of2003

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PETCTEONER:

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Smt. Bittu Sharma, W/o fiovind Sharma,

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Aged about 41 years.

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^^^ Resident of Ajad Chowk, '^., .».>^""' / Suhaga Mandir Road, Raipur (C.G.) ?<esel".-.--

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Versus

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RESPON&ENTS;

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State of ChhattiS9arh,

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Throuah; The Secretary,

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Depft. of Public Works,

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b.K.S. Building, Raipur (<;.©.)

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Chief Engineer, PWb,

Ndtional Hi9hwoy,

Nalgarh Chowk,

Raipur (C.G.)

Sub Divisional Officer,

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National Highway Sub-

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Division, PWt),

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Pension Bada, Raipur (C.&)

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Industrial Court,

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Chhattisgarh, ftaipur (€.(?.)

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WRFT PFTTTION UN&ER ARTICLE 226/2270F THE

coNSTrrunoN OF IN&IA

l^ j9

NAFR

HIGH COURT OF CHHATTISGARH. BILASPUR

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WP No. 4037 of 2003

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-— Smt. Bittu Sharma Petitioner

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Versus

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State Of Chhattisgarh & Ors. -—Respondents For Petitioner Mr. Bharat Rajput, Advocate For State/Respondents Mr. Chandresh Shriyastava, Panel Lawyer

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And

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WP N0.3868 Of2003

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State OfChhattisgarh & Ors. -—Petitioners
Vs
Smt. Bittu Sharma -—Respondent
For Petitioners/State Mr. Chandresh Shrivastava, Panel Lawyer
For Respondent Mr. Bharat Rajput, Advocate

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Hon'ble Shri Justice Manindra IVIohan Shrivastava

Order On Board

10/01/2017

Heard.

The aforesaid two petitions are being disposed off by this common order as.both the petitions arise out ofsame order dated 05.09.2003 passed in appeal by the Industrial Court.

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The employee Smt. Bittu Sharma moved an application under Section 31(3) of the Madhya Pradesh Industrial Relations Act before the Labour Court raising dispute against the termination. The employee also claimed that she is entitled to be classified as a permanent employee under the Standard Standing Orders applicable and framed in exercise of powers under the Industrial Employment Standing Orders Act. The employer State in its Public Works

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.11

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--^-.^

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Department, denied the claim ofemployee. Both the parties were allowed to lead evidence and the Labour Court vide award dated 12.08.2002 held that the employee was entitled to be classified as permanent employee under the provision of the Standard Standing Order and it was alsb held that termination of services without payment of retrenchment compensation was not in accordance with law. The order passed by the Labour Court was challenged in appeal by the employer State. Vide impugned order dated 05.09.2003, the Industrial Court has partly allowed the appeal. In so far as direction for classification as permanent employee was concerned, the order of the Labour Court has been set aside while affirming the order of reinstatement in service. There is no order of the Labour Court or Industrial Court granting back wages to the employee.

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Assailing correctness and validjty.of the order of the Industrial Court to the extent it has interfered with tKe^EirdemofilClassjfication as permanent employee, learned counsel appearing fOFthe^eniployeefargued that the Industrial Court has committed serious jurisdictionaNllegaljfyiand perversity in interfering with the order of the Labour Court in ffteilraatter vof classification of the employee as permanent employee though it was ffQundthat the petitioner was continuously working from 01.11.89 to 07.10.95 in.theccipying section of the office of SubDivisional Officer, PWD, National .l-llgSway Sub-Division, Raipur. It is submitted that the Labour Court after due scrutiny of evidence on record, found that the petitioner had worked continuously and without any complaint for continuous period of six months as daily wage, therefore, she is entitled to be classified as a permanent employee.

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Learned counsel for the State while opposing the ground raised in the petition filed by the employee, submits that in order to claim classification as permanent employee, the employee was required to prove that she was employed against a regular and sanctioned post on which she worked continuously for six months. The Industrial Court rightly held that in the absence of there being any material and finding on this crucial aspect, no order of classification could be passed. 5. Pressing his petition, learned State counsel submits that the employee failed to prove that she had worked for a period of 240 days in one calender year preceding the date of termination. In the absence of proof of this fact, the employee was not entitled to protection against retrenchment on the ground that at the time of retrenchment, she was entitled to be paid retrenchment compensation and that the termination was illegal on the ground that the

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retrenchment compensation was not paid.

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Replying to this argument, learned counsel for the employee submits that both the Courts below have rightly held that it was the burden ofthe employer to produce before the Court the attendance register and other records to prove that the petitioner had not worked for 240 days in one calender year preceding her termination because the records were available with the respondents and on account of non-production of those documents, without any valid reason, adverse inference was rightly drawn against the employer.

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i^. Wtfiiw-rssg1

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it- r

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-1ES :i:" i'EiS^ ^

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In so far as challenge to the order of reinstatement is concerned, 1 find that both the Courts below have recorded a concurrent finding of fact with regard to the fact that the petitioner employee had worked continuously fpr 240 days and employer did not dispute ;tt]aC'thie:,employee had worked "asdaily wage employee between the periodfron'ifO'I.WiiBiS.lo 07.10.95 till her termination. The employee came out with s'Mear^tsategonc case that she had worked continuously for 240 days. The.reEOrd^lQf attendance are available with the employer. In these circumstances, tHe lai-irelen was on the employer to prove that though, the employee had workeil,^f&talTnumber of days she worked was less than 240 days in one calenderyearipreceding her termination. This having not been done, the learned Courts below tiad rightly drawn adverse inference against the employer that had the record been produced, it would have contained the evidence in favour of the employer. Learned Labour Court and Industrial Court has correctly applied the legal position, relying upon the decision ofthe Supreme Court in the case of Gopal, Krishnaji Ketkarvs IVIahomed Haji Latif & Ors, AIR 1968 SC 1413. Therefore, l do not find any ground to interfere with the order of the Labour Court and the Industrial Court directing reinstatement ofthe petitioner on the ground that reinstatement ofthe employee on the ground that the retrenchment was illegal.

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As far as the claim of classification of the employee is concerned, learned Industrial Court has rightly recorded that unless it is proved that the employee had continuously worked for six months on a vacant post, classification could not be claimed.

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Learned counsel for the petitioner could not bring to the notice of this Court any documentary or oral evidence to prove that the petitioner was working on'a sanctioned vacant post. There is no document or oral evidence admitted placed on record by the employee to prove that she was working against the

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lifflijir""''

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-^.-'~-''w*s! ^f.®'fe^a'sa^^FS?BB'3g(?!

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sanctioned post. In the absence of there being any clinching evidence to prove that the employee was working on a regular vacant and sanctioned post, irrespective of the length of sen/ice, no classification can be claimed under Standard Standing Orders.

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In view of the above consideration, l do not find that the Industrial Court has committed any error of jurisdiction in passing the impugned order, assail both the employer as well as by the employee though on their own grounds.

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In the result, both the petitions fail and are, therefore, dismissed. ,

Sd/——-

Manindra Mohan Shrivastava Judge

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Rekha

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...i!^il.

Smt.Bittu Sharma v. State of Chhattisgarh and Ors.

Case brief

What is this about?

What did the court decide?

Smt.Bittu Sharma v. State of Chhattisgarh and Ors.

Case brief

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