1 2025:CGHC:10263 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPL No. 33 of 2015 1. State Of Chhattisgarh And Ors. Through - Secretary, Water Resources Department, Mahanadi Bhawan, Naya Mantralaya, Naya Raipur, P.S. Mandir Hasaud Raipur C.G. 2. The Director Hydro Metrology, Civil Lines, P.S. Civil Lines, Raipur C.G., District : Raipur, Chhattisgarh 3. The Deputy Director Hydro Metrology Division No. 4, Irrigation Colony, Shanti Nagar, Civil Lines, P.S. Civil Lines, Raipur C.G., District : Raipur, Chhattisgarh ... Petitioner(s) versus Mohan Lal Patel S/o Shri Bhagbali Patel Ex Helper And Chowkidar, R/o Vilalge Dehri, Post Devkar, Tahsil - Saja, Police Station Devkar District - Bemetara C.G., Chhattisgarh ... Respondent(s) For Petitioners/State : Mr. Vinay Pandey, Dy. A.G. For Respondent : None, though served Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 03/03/2025 1) By way of this petition, the petitioner has challenged the order passed by the learned Labour Court No. 1, Raipur, in Case No. 23/ ID Act/ 2005/ Reference dated 27.11.2014, whereby the workman has been re- instated in service without back-wages. 2) Facts of the present case are that there was a dispute between the respondent-workman and the matter was referred by the State of Chhattisgarh according to provisions of Section 10(1) of the Industrial Disputes Act, 1947 to the learned Labour Court vide order dated Digitally signed by AJINKYA PANSARE Date: 2025.03.05 16:01:29 +0530 2 28.03.2005. The respondent-workman filed a statement of claim inter- alia on the ground that he was appointed under petitioner No. 2 on 20.08.1989 to the post of Helper-cum-Chowkidar and he worked there till 31.01.2000. It was further pleaded that on 31.01.2000, his services were terminated without assigning sufficient reasons. Respondent- workman also pleaded that the termination of his services was contrary to the provisions of Section 25-B and F of the Act, 1947. Respondent No. 3 filed a reply to the statement of claim and denied its averments. It was pleaded that the workman was appointed on a temporary basis and in the absence of necessity of his services, he was ousted. It was further pleaded that instead of one month’s notice, wages of one month of Rs. 1823/- were paid through banker’s cheque No. 395926 dated 31.01.2000 and Rs. 13319/- towards retrenchment compensation was also paid through bank draft No. 396126 on 12.05.2000. It was also pleaded that the workman is not entitled to reinstatement and back-wages. Respondent-workman examined himself as PW/1 and proved the documents P/1 (c) to P/43(c). The petitioners examined DW/1 namely, Rajesh Kumar Sharma, who exhibited document D/1(c). The learned labour Court framed issues and held that (i) despite there being a delay of four years, the application is maintainable and (ii) the termination of services of the workman was bad in law. 3) Learned labour Court while placing reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Ajaib Singh Vs. Sirhind Co-operative Marketing-cum-Processing Service Society Limited & Anr. reported in (1999) 6 SCC 82 held that despite the delay, the claim of the workman would be maintainable but he would 3 not be entitled to back-wages. With regard to the next issue, the learned Court considered the provisions of Sections 25-B and F and came to the conclusion that the termination of services of the petitioner was contrary to these provisions and passed an award of reinstatement without back-wages. 4) Learned counsel appearing on behalf of the petitioners/State would submit that a specific issue with regard to the delay was framed. He further submits that there was an inordinate delay of five years in approaching the learned labour Court and the same was not explained properly by the workman, therefore, the finding recorded by the learned Court below in this regard is perverse. He contends that the respondent-workman was a temporary worker and he failed to prove that he worked continuously under the petitioners for more than 240 days in one calendar year; therefore, the award passed by the learned Court below is liable to be set-aside. 5) No one appears on behalf of the respondent-workman despite service of notice. 6) Heard learned counsel for the petitioners/State and perused the record. 7) A reference was made by the State of Chhattisgarh according to provisions of Section 10(1) of the Act, 1947 vide order dated 28.03.2005. The learned labour Court initiated a proceeding pursuant to the reference dated 28.03.2005. The petitioners herein failed to challenge the order of reference by filing a petition and participated in the proceeding before the learned labour Court. Though a specific issue was framed with regard to the limitation but three-year period of limitation was inserted in Section 10 of the Act, 1947 in the year 2010 whereas a reference was made in the year 2005, therefore, the issue 4 of limitation was rightly decided by the learned Labour Court. 8) Further, the Hon’ble Supreme Court in the matter of Ajaib Singh (supra) held as under:- 10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and hot as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned counsel for the respondent- management on the full bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana, (1999) 1 SCT 141 is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held "neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases." However, it went on further to say that "reasonable time in the cases of labour for demand of reference or dispute by appropriate government to labour tribunals will be five years after which the government can refuse to make a reference on the ground of delay and latches if there is no explanation to the delay." We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 37-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the Legislature in its wisdom had, though if fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding the court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the 5 Legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act. 11. ln the instant case, the respondent- management is not shown to have taken any plea regarding delay as is evident from the issues framed by the labour court. The only plea raised in defence was that the labour court had not jurisdiction to adjudicate the reference and the termination of the services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The findings of facts returned by High Court in writ proceedings, even without pleadings were, therefore, unjustified. The high Court was also not justified in holding that the courts were bound to render an even handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the Act. Even after noticing mat "it is true that a fight between the workman and the management is not a just fight between equals," the court was not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the opinion of the labour court which was not permissible in proceedings under Articles 226/227 of the Constitutiln the instant case, the respondent-management is not shown to have taken any plea regarding delay as is evident from the issues framed by the labour court. The only plea raised in defence was that the labour court had not jurisdiction to adjudicate the reference and the termination of the services of the workman was 6 justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The findings of facts returned by High Court in writ proceedings, even without pleadings were, therefore, unjustified. The high Court was also not justified in holding that the courts were bound to render an even handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the Act. Even after noticing mat "it is true that a fight between the workman and the management is not a just fight between equals," the court was not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the opinion of the labour court which was not permissible in proceedings under Articles 226/227 of the Constitution. 9) Also, with regard to the award of re-instatement, the respondent- workman adduced documentary as well as oral evidence and the petitioner failed to rebut the evidence so adduced by the respondent- workman. The learned labour Court has also considered the provisions of Section 25-B and F of Act, 1947 which are reproduced herein below:- 25-B. Definition of continuous service.- For the purposes of this Chapter,- (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 authorised leave or an accident or a strike which is not illegal, or a lock-out 7 or a cessation of work which is not due to any fault on the part of the workman; (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-(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- (i)one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii)two hundred and forty days, in any other case; (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- (i)ninety-five days, in the case of a workman employed below ground in a mine; and (ii)one hundred and twenty days, in any other case. Explanation .-For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which- (i)he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment; (ii)he has been on leave with full wages, earned in the previous years; (iii)he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv)in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks. 25-F. 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- (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; 8 (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days 'average pay [for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette. From a perusal of the above-mentioned provisions, it is quite vivid that the services of the respondent-workman were terminated without complying with the above-referred mandatory provisions. 10)Taking into consideration the evidence available on the record, provisions of Sections 25-B and F of the Act, 1047 and the law laid down by the Apex Court in the matter of Ajaib Singh (supra), in the opinion of this Court, no case is made out for interference with the order impugned. 11)Consequently, this petition fails and is hereby dismissed. No order as to cost(s). Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya