IMPORTANT POINT
Delay in raising an industrial dispute can bar the claim, and temporary employees have no right to regularization outside constitutional provisions.

ORDER :

Deepak Kumar Tiwari, J

1. This petition has been filed under Article 226/227 of the Constitution of India assailing the legality and validity of the award dated 31st March, 2016 passed by the Labour Court, Janjgir Champa in Case No.04/I.D.A./2015 (Ref.), whereby the respondent/employee was reinstated in service without back wages and it was further directed that the period during which the respondent/employee was out of service shall be computed for all practical purposes.

2. Facts of the case are that the respondent/employee was appointed purely on temporary basis on the post of Roller Helper in the petitioner Department vide order dated 21st May, 1990. However, his services were discontinued from 30th April, 1993. The respondent/ employee raised an industrial dispute after more than 22 years stating that his termination is illegal and bad in law, though he has already completed more than 240 days preceding to his termination in every calender year. Without any payment of retrenchment compensation or legal notice, his services were discontinued, which is in violation of Section 25-F of the Industrial Disputes Act, 1947 (henceforth ‘the Act, 1947’). The said reference was allowed by the impugned award. Hence this petition.

3. Learned counsel for the petitioners would submit that the industrial dispute has been raised after the considerable lapse of time and the respondent/employee slept over the matter for number of years and, therefore, it can be presumed that he has accepted the factum of his termination. He further submits that in Section 2A of the Act, 1947, an amendment has been made by the Act No.24 of 2010 with effect from 15th September, 2010. A workman may make an application direct to the Labour Court for adjudication of the dispute after the expiry of forty-five days from the date he has made the application to the concerned officer of the appropriate Government. The application referred to in sub-section (2) shall be made to the Labour Court before the expiry of three years from the date of dismissal or retrenchment. In the instant case, the respondent/employee was terminated on 30th April, 1993, whereas reference was preferred before the Labour Court in the year 2015. Therefore, on the ground of delay and laches, his claim itself was not maintainable. Reliance is placed in the matter of Prabhakar Vs. Joint Director, Sericulture Department and Another, (2015) 15 SCC 1.

4. Learned counsel for the petitioner further submits that the respondent/employee was appointed purely on temporary basis and in view of the judgment of the Hon’ble Supreme Court in the mater of Secretary, State of Karnataka & Others Vs. Umadevi (2006) 4 SCC 1, the respondent/employee could not claim for regularization of his services dehors the constitutional scheme, inasmuch as the respondent/employee has failed to prove that he has already worked for more than 240 days in the preceding calender year from the date of alleged retrenchment and the burden of proving the same lies on the employee. This proposition has been reiterated in the matter of Bhavnagar Municipal Corporation and Others Vs. Jadeja Govubha Chhanubha and Another, (2014) 16 SCC 130 wherein at para-7 the following has been observed:-

“7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T. Hadimani (2002) 3 SCC 25, Municipal Corporation, Faridabad v. Siri Niwas (2004) 8 SCC 195, M.P