Abdul Shammi Vs Chief Medical and Health Officer

10.2- That the Hon'ble Court may be kind enough to quash the impugned order dt. 08.01.2019 between Abdul Shammi versus Chief Medical and Health Officer in Case no. 203/ID Act/2011/Reference passed by the Ld. Labour Court, Rajnandgaon (C.G.).

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10.3- That the Hon'ble Court may be kind enough to pass a writ of mandamus and to command the respondent to reinstate the

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petitioner on his post with all consequential benefits and back wages.

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10.4- That the Hon'ble Court may be kind enough to pass any appropriate writ, order or direction in the circumstances of the case. ”

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Learned counsel appearing for the petitioner would submit that the petitioner worked under the respondents as a daily-wage employee from the year 1990 till 30.12.2005. He would further submit that the work of the petitioner was satisfactory, but his services were converted into contractual employment on 27.05.2006 and consequently, his services were discontinued on 27.02.2009. He would contend that the petitioner continuously worked for 19 years under the respondents; therefore, the respondent authorities ought to have considered the claim of the petitioner for reinstatement. He would further contend that the respondent authorities, without following the procedure contemplated under Sections 25(F) and 25(G) of the Industrial Disputes Act, 1947, discontinued the services of the petitioner. He would argue that the petitioner adduced sufficient documentary as well as oral evidence before the learned Labour Court, but the statement of claim was dismissed; thus, he prays to allow this petition.

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On the other hand, learned State counsel would oppose the submissions advanced on behalf of the petitioner and submit that the petitioner did not work for 240 days preceding the date of termination as a daily-rated employee; therefore, he has no right to claim reinstatement. He would contend that the petitioner worked as a dailyrated employee from 1990 till 30.12.2005 and thereafter his services were converted into contractual employment; and before termination of his services, he was working as a contractual employee; therefore, the provisions of the Industrial Disputes Act, 1947 are not attracted,

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and thus the statement of claim filed by the petitioner has rightly been rejected by the learned Labour Court.

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I have heard learned counsel for the parties and perused the records.

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Perusal of the statement of claim and the evidence adduced by the petitioner would reveal that the petitioner worked as a daily-wage employee from 1990 till 30.12.2005 and thereafter he was appointed on a contractual basis. Subsequently, his services were terminated by the respondent authorities on 27.02.2009.

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It is well settled legal position that for getting protection of Section 25(f) of the Industrial Disputes Act, it is incumbent on the part of the workman to plead and prove the continuous 240 days service preceding date of termination. Section 25(B) defines continuous service and Section 25(F) provides grant of retrenchment compensation to the workman.

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Sections 25-B and 25-F of the Industrial Dispute Act are extracted below:-

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" 25B. Definition of continuous service . For the purposes of this Chapter,--

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(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

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(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer--

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(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--

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(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

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(ii) two hundred and forty days, in any other case;

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(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-

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(i) ninety- five days, in the case of a workman employed below ground in a mine; and

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(ii) one hundred and twenty days, in any other case.

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25F. Conditions precedent to retrenchment of workmen .-No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--

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(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:

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(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2 for every completed year of continuous service] or any part thereof in excess of six months; and

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(c) notice in the prescribed manner is served on the appropriate Government 3 or such authority as may be specified by the appropriate Government by notification in the Official Gazette].

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In the present case, no documentary evidence has been placed on record to substantiate that petitioner worked for 240 days in a preceding 12 months before the date of termination. The self-serving statement of the petitioner cannot establish that he worked for 240 days in preceding 12 months before the date of termination which is essential requirement for getting protection under Sections 25(f) of the Industrial Dispute Act.

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Hon'ble Supreme Court in case of Municipal Corporation, Faridabad vs. Siri Niwas, reported in 2004(8) SCC 195 has held as under:-

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"14. For the said purpose it is necessary to notice the definition of 'Continuous Service' as contained in Section 25-B of the Act. In terms of sub-Section (2) of Section 25-B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17.5.1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5.8.1994 to 16.5.1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case."

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Learned Labour Court has appreciated documentary as well as oral evidence and thereafter, dismissed the statement of claim.

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Taking into consideration the facts of the case & law laid down by the Hon’ble Supreme Court, it is quite clear that the petitioner has not produced any cogent evidence to demonstrate that he worked for 240 days in a calender year, therefore, there is no illegality or perversity in the

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award dated 08.01.2019 passed by the learned Labour Court warranting interference by this Court exercising power under Article 226 of the Constitution of India. Accordingly, this petition fails and is hereby dismissed . No order as to cost.

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Rakesh Mohan Pandey

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JUDGE

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Nadim

Abdul Shammi v. Chief Medical and Health Officer

Case brief

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Abdul Shammi v. Chief Medical and Health Officer

Case brief

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