Orissa High CourtExecutive Engineer vs Presiding Officer on 5 May, 2010Author:B.K. PatelBench:B.K. PatelHIGH COURT OF ORISSA: CUTTACK.

                                W.P.(C) No. 4805 of 2002

         In the matter of an application underArticles 226and227of the
         Constitution of India.

                                                      ---------

         Executive Engineer,
         Electrical, Jajpur Elec.Division
         At/PO. Jajpur Town                                   ...             Petitioner

                                       -Versus-

         Presiding Officer, Labour Court
         and another                                          ...           Opp. Parties


                      For Petitioner     :           M/s. B.K. Nayak

                      For Opp. Parties :             Mr. B.K.Mohanty (for O.P.2)

                                                 ---------

         PRESENT:

                     THE HONOURABLE SHRI JUSTICE B.K. PATEL

         Date of hearing - 24.2.2010         :       Date of judgment -5.5.2010


B.K. PATEL,J.     The employer has filed this writ application assailing the

         legality of award dated 9th May, 2002               passed by learned Presiding

         Officer, Labour Court, Bhubaneswar (for short the 'Labour Court') in

         I.D. Case No. 107 of 1996 holding the opposite party no. 2-workman

         to be entitled to reinstatement in service with 50% backwages.

         2.       The impugned award was passed in adjudicating the

         following reference made under Section 10(1) read withSection 12 (5)of the Industrial Disputes Act, 1947 (for short 'the Act'):-
                                           2


         "Whether the termination of Sri Bipin Bihari Nayak by the
         Executive Engineer, Jajpur Road Electrical Division, Jajpur
         Road with effect from 26.4.90 is legal and or justified ? If not
         to what relief he is entitled ?

3.       The workman's case, in brief, was that he was working

under the employer from 1988 till 25.4.1990. He was refused

employment from 26.4.1990 by the employer without compliance of

the   provision    under     the   Act.       The   workman     made   several

representations which were not considered by the employer. Even

after refusal of employment to the workman, the employer had

employed 44 persons as NMR workers in the year 1990-91. The

employer did not publish seniority list of NMR workers before refusal

of employment to the workman. Neither notice was issued nor notice

pay or retrenchment compensation was paid to the workman.

Therefore, the workman was entitled to reinstatement with full

backwages and other service benefits.

         The      employer    filed   written       statement   resisting   the

workman's claim. It was pleaded that the claim was not maintainable

in view of delay and latches. It was contended that the workman was

working as casual labour under the management of erstwhile Orissa

State Electricity Board (for short 'O.S.E.B.'). Consequent upon the

operation ofOrissa State Electricity Reform Act1995, all the assets

and activities of O.S.E.B. were transferred to the Grid Corporation of

Orissa Ltd. with effect from 1.4.1996. As the workman was not in the

roll of O.S.E.B. as on 1.4.1996, as per the stipulations in above said

Act of 1995, the Grid Corporation Orissa Ltd. was not liable to
                                            3


entertain the workman's claim. Since the workman was engaged as

casual    labour,        he   had     no   right   of employment.     It        was

specifically   pleaded        that   the   workman    was   engaged        in   the

construction work as a casual employee purely on temporary basis

subject to availability of work and funds. He had worked for 59 days

in 1988, 47 days in 1989 and 15 days in 1990. He had never

rendered continuous service for one year during his employment nor

had he worked for minimum period 240 days during the period

preceeding 12 months from the date of his discontinuance. It was

further pleaded that the employer being an industrial establishment

was liable to preserve the registers and records required to be

maintained under thePayment of Wages Actfor a period of three

years only after the last entries made therein. The workman was

required to adduce strict proof of the period of his engagement. As per

the records, the workman was not engaged after 20.3.1990 due to

nonavailability     of    work.      The   workman    had   not     made        any

representation for his engagement and as such his claim was belated

and stale. There has not been engagement of any fresh NMR worker

in the year 1990-91.

          In order to substantiate his claim workman examined two

witnesses including himself as W.W. No. 1 and relied upon

documents marked Exts. 1 to 10. On the other hand one witness

M.W. No. 1 was examined and no documentary evidence was adduced

by the employer.
                                     4


         On appraisal of the materials on record, it was held by the

Labour   Court   that   the   workman    had completed 240 days of

service between August 1989 to March 1990 and thereby became

eligible for protection underSection 25-Fof the I.D. Act. On the basis

of such finding the impugned award was passed.
                                   5


4.         It was contended by learned counsel for the petitioner

that the workman having raised the dispute in the year 1996 on the

assertion that he was refused employment since 26.4.1990, the

learned Labour Court should not have entertained the dispute due to

delay and latches. It was further argued that there was no basis for

the learned Labour Court to come to the finding that the workman

had completed 240 days of service prior to his disengagement. The

learned Labour court has acted upon vague statements of the

workman and his witnesses in this regard and has ignored the

evidence adduced on behalf of the employer.
                                               6


5.             In reply, it was contended by learned counsel for the

opposite     party no.2 that the workman submitted                               several

representations for his engagement which were favourably forwarded

from the Sub-Divisional Office to the Executive Engineer.                              The

workman had resorted to remedies under the Act only after waiting

for a reasonable period expecting that his representations would be

considered. Ultimately, he resorted to remedy under the Act by filing

application before the Labour Officer. Therefore, there was no delay

in raising the dispute.            It was further contended that evidence

adduced on behalf of the workman to the effect that the workman was

in    continuous          employment     from         1985     to    1990      remained

uncontroverted. M.W.1 also admitted that the workman was engaged

as NMR during different periods between 1.2.1988 to 22.3.1990. No

document was produced on behalf of the employer on the pretext that

the records and documents were burnt and damaged in course of an

agitation.     Nonetheless, it was categorically admitted that the

workman       was     disengaged       with       effect   from     26.4.1990,    which

corroborates        the    assertion    of    the      workman.          Under     such

circumstances, there is absolutely no scope to interfere with the

impugned order. Learned counsel for the opposite party no.2 relying

upon decisions of the Hon'ble Supreme Court in H.D.Singh v.

Reserve Bank of India and others : AIR 1986 Supreme Court 132

and    of    this    Court    in         Executive          Engineer     (Electrical),

Bhubaneswar          City    Distribution          Division,      C.E.S.C.O.     Ltd    v.
                                     7


Presiding Officer, Labour Court : 90 (2000) C.L.T. 687 argued that

as the employer failed to produce any record,                 evidence

adduced on behalf of the workman remained uncontroverted.

Therefore, there is no infirmity in the finding of the learned Labour

Court.

6.       In his statement of claim, the workman pleaded that he filed

         several representations for re-employment.    While deposing

         before the learned Labour Court also, it was testified by him

         that he approached the higher authorities.     W.W.No.2, the

         Secretary of the Workers' Union proved Exts.8, 9 and 10,

         which are letters under which the workman's representations

         were forwarded to higher authorities.   Also W.W.No.2 stated

         that, after his termination, the workman had approached the

         authority time and again till 1995, but as no action was taken

         the dispute was raised. W.W.No.2 has not at all been cross-

         examined on behalf of the employer. Therefore, it is evident

         that the workman submitted representations before the

         dispute was raised on his behalf by the Union. Hence, there is

         no scope to hold that there was   any delay or latches on the

         part of the workman so as to render his claim stale. Under

         the facts and circumstances of the case, delay stands

         explained.

7.           It was pleaded by the employer that the workman did not

render service for 240 days prior to his disengagement. However,
                                   8


M.W. No.1 testified    before the learned Labour Court that the

workman    was   engaged   as   NMR    from 1.2.1988 to 31.3.1988,

1.3.1989to 25.3.1989, 2.7.1989 to 4.7.1989, 8.7.1989 to 13.7.1989,

15.7.1989 to 20.7.1989, 21.7.1989 to 27.7.1989, 15.2.1990 to

18.2.1990, 20.2.1990 to 22.2.1990, 25.2.1990 to 27.2.1990 and

18.3.1990 to 22.3.1990.     According to him, the workman was

disengaged with effect from 26.4.1990 due to want of work. It is not

at all the case of the employer that the workman had not been

engaged during any spell other than the above stated periods. Rather

M.W. No.1 deposed that the records regarding engagement of the

workman during subsequent periods were not available, as the same

were damaged/burnt during Mandal Commission agitation. In course

of his cross-examination, M.W. No.1 admitted that some surplus NMR

employees of Talcher Thermal were engaged in Jajpur Road Electrical

Division after 1990. As against such materials placed before the

Labour Court on behalf of the employer, the workman appears to

have placed unimpeachable documentary evidence in support of his

continuous engagement between 1987 and 1990. It appears that the

workman was engaged as NMR Typist.          In Exts.1 to 7, Junior

Engineer (Electrical) No.1, Jajpur has certified that the workman was

engaged for the periods from 25.7.1987 to 31.7.1989, 1.8.1989 to

3/90, 1.4.1990 to 30.4.1990, 1.5.1990 to 31.5.1990, 1.6.1990 to

30.6.1990, 1.7.1990 to 31.7.1990 and 1.8. 1990 to 31.8.1990

respectively. In Ext.8, while sending the workman's representation to9the Sub-Divisional Officer, it has been mentioned by the Junior

Engineer (Electrical) No.II, Jajpur that the workman had completed

400 days of service in the temporary NMR post between 7.7.1985 to

1.10.1986. In Ext.9, while forwarding the representation of the

workman to Executive Engineer, it has been mentioned by Sub-

Divisional Officer,Electrical No.1, Jajpur that the workman had

worked as NMR in different spells between 1.2.1988 to 22.3.1990

and that record relating to periods between 1.1.1986 to 28.1.1988,

1.4.1990 to 30.4.1990, 1.5.1990 to 31.5.1990, 1.6.1990 to 30.6.1990,

1.7.1990 to 31.7.1990 and 1.8.1990 to 31.8.1990 was not available

as the same might have been destroyed by the mob on 28.8.1990.

Thus, the workman is found to have adduced ample evidence in

support     of     his     continuous       engagement   which      remained

uncontroverted.          Admittedly, neither disengagement notice was

issued nor notice pay or retrenchment compensation has been paid to

the workman.8.              Therefore, there appears no infirmity in the impugned

award warranting interference by this Court in exercise of its writ

jurisdiction.9.              In the result, the writ application is dismissed.......................B.K. Patel, J.High Court, Cuttack,
Dated 5th May,,2010/S.Swain