MD. MOINUDDIN Vs. PRESIDING OFFICER, LABOUR COURT

JUDGEMENT

(1.) THE petitioner challenging the order dated 24.03.2008 passed by the Presiding Officer, Labour Court, Bhubaneswar, Orissa in I.D. Case No.28 of 2003 has preferred the present writ application seeking quashing of the said order and for issuing a direction to the opposite party no.2-Management to reinstate/re-engage the petitioner with immediate effect by restoring his position in the merit list and granting him back-wages and other consequential benefits.

(2.) THE facts in brief leading to the present writ application are that the petitioner was an employee of the Utkal University engaged by the authorities of the University, namely, Registrar, on daily wage basis with effect from 06.06.1991. He was placed under the disposal of the Security Department of the University and claimed to have been engaged against a substantive vacant post. The order of engagement of the petitioner was issued from time to time from the Office of the Registrar, Utkal University and, thereafter, the Security Officer used to assign the day to day duties to the petitioner. He claims to have been engaged from 06.06.1991 continuously up to 24.08.1999 without any break, being paid @ Rs.40.00 per day towards remuneration. While working as such, the University authorities prepared a security list of daily wage workers in the University, which was circulated in all Departments prior to finalization of the same, inviting objection from the incumbents or from any of the Departments as the case may be. The said list was finally approved by the authorities of the University and published on 22.06.1996. In the said list, the name of the petitioner found place at Sl. No.165 and against his name, the date of joining was reflected as 06.06.1991 and the place of working was at Security Unit of the University. It is claimed by the petitioner that while working as such on 24.08.1999 when the petitioner was assigned the duty in the night shift, he experienced sudden abdominal pain and under constraint he performed his duty. After completion of the duty hours by informing the Officer-in-Charge, he went on leave. Due permission was granted to him for his medical check up. The petitioner left for his native place and got himself checked up at Balikuda PHC, where the Doctor treating him advised that he should undergo Hernia operation. The petitioner underwent the said surgery and after being completely cured, obtained a fitness certificate from the Doctor and reported back for duty by submitting the joining report along with the fitness certificate on 06.10.1999, but he was refused employment. He claims to be unemployed from the said date and alleges that the refusal of employment is illegal. Under such circumstance, he approached the Labour Officer, Bhubaneswar for redressal of his grievance. The Labour Officer initiated a conciliation between the petitioner and the management. But such conciliation having failed, the failure report was submitted before the State Government. The State Government referred the following question for determination to the Labour Court, Bhubaneswar:

(3.) MR . S.S. Das, learned counsel for the petitioner contended that the learned Presiding Officer has misdirected himself in construing Ext-A/1 to be the complete statement regarding the petitioner's period of service under the opposite party authorities. In fact, Ext-A/1 suggests the absentee statement of the petitioner with effect from January 1999 till 23.07.1999 whereas it is the admitted fact by the parties that the petitioner was engaged as a daily wager at the University with effect from 06.06.1991 and continued up to 24.08.1999. That apart the petitioner was refused engagement with effect from 06.10.1999 on the basis of a circular that was issued almost a month and 20 days after the date on which the authorities did not allow the petitioner to resume his duties. He further contended that the learned Presiding Officer took the date of reference to be 30.10.1999 and calculated the 12 months period with effect from 01.11.1998 and came to a conclusion that the petitioner had rendered only 234 days of work by referring to Ext-A/1 which reflected the days of works the petitioner had rendered till 21.07.1999 but not up to 24.08.1999, whereas the fact remains that the petitioner did render his services till 24.08.1999. Had this aspect been taken into consideration which was available with the learned Presiding Officer through the additional affidavit submitted by the petitioner, the days of service rendered by the petitioner would have been more than 240 days. On the other hand, it was incumbent on the part of the learned Presiding Officer to call for the records from the office of the opposite parties so as to verify the exact position regarding the days for which the petitioner did actually render his services. Moreover, the aspect regarding petitioner's rendering work at the University Ladies Hostel, Gymnasium and the Parija Library becomes abundantly clear through Annexure-6 of the present writ petition. Nevertheless, such fact was also available with the learned Tribunal. Mr. Das also submitted that the learned Presiding Officer should have treated the last working day of the petitioner to be 06.10.1999 and under such circumstances the calculation should have commenced from 07.10.1998 instead of 01.11.1998 (as has been done by the learned Tribunal) and in such event, it would have been held that the petitioner did work for more than 240 days within a year prior to his disengagement. The statement through an affidavit by the claimant having remained un-controverted, there could not have been any other inference than to hold the petitioner to be in continuous service for a year. That apart, fact remains that the petitioner was in continuous engagement since 1991 for more than eight years and, as such, did satisfy the conditions of Section 25-B(1) straight away. Regarding the said aspect, the petitioner also prayed for calling for the records. Without verifying the records, the learned Presiding Officer by erroneous appreciation of section 25-B(2)(a)(ii) notwithstanding the fact that the petitioner did satisfy the condition of 25-B(1) rejected the claim of the petitioner by relying upon a judgment which is not applicable under the facts and circumstances of the instant case.