REPORTABLE

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

J U D G M E N T

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

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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

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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.

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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. (ASOK KUMAR GANGULY)

New Delhi, March 27, 2009                                                            

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