JUDGMENT :

Sujit Narayan Prasad, J.

I.A. No.165 of 2021:

1. This interlocutory application has been filed for condoning the delay of 702 days, which has occurred in preferring this appeal.

2. Heard learned counsel for the appellant.

3. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.

4. Accordingly, I.A. No.165 of 2021 is allowed and the delay of 702 days in preferring the appeal is condoned.

L.P.A. No.94 of 2019:

5. The instant appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 02.02.2017 passed by the learned Single Judge of this Court in W.P.(L) No.1025 of 2008 whereby and whereunder the order dated 27.01.2005 passed by the Labour Court, Hazaribagh in M.J. Case No.5/02, filed under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, 1947), has been quashed and set aside.

6. The brief facts of the lis which is required to be enumerated read as hereunder:

The workman was appointed on the post of Helper Category-II on 18.01.1959 as daily rated worker. He was promoted as Operator Grade-I w.e.f. 19.12.1959 and thereafter to the post of Charge-man in the Wage Board Scale of Rs.245-440 w.e.f. 01.03.1973 by the office order dated 20.03.1973.

The workman has filed application under Section 33-C (2) of the Act, 1947 claiming therein leave encashment of 180 days. The Labour Court allowed the application and directed the management to release the leave encashment of 180 days treating him to have been appointed or to have come within the monthly cadre between 01.10.1956 to 14.08.1967.

The aforesaid order passed by the Labour Court under Section 33-C (2) of the Act, 1947 has been questioned by the management-CCL by filing a writ petition being W.P.(L) No.1025 of 2008 under Article 226 of the Constitution of India wherein the order dated 27.01.2005 passed by the Labour Court, Hazaribagh in M.J. Case No.5/02 has been quashed and set aside, which is the subject matter of the present intracourt appeal.

7. Mr. Bhaiya Vishwajeet Kumar, learned counsel for the appellant has submitted that there is no dispute in the claim of the workman in view of the fact that his appointment was made on the post of Helper Category-II on 18.01.1959 as daily rated worker but was promoted as Operator Grade-I w.e.f. 19.12.1959, which suggests and clarifies that the workman was promoted as Grade-I w.e.f. 19.12.1959, therefore, he has to be treated under the regular establishment of the erstwhile company and in view thereof, he became entitled for leave encashment and after considering the aforesaid aspect of the matter the Labour Court has passed an order directing the claim to be undisputed, as such, direction upon the respondent management to disburse the amount of leave encashment of 180 days has been passed but the learned Single Judge has not considered the fact about the promotion of the workman as Operator Grade-I w.e.f. 19.12.1959 rather the learned Single Judge has considered the fact about the claim of the writ petitioner of leave encashment admissible from the date when he has been brought under the Wage Board Scale of Rs.245-440 w.e.f. 01.03.1973 by office order dated 20.03.1973, therefore, serious illegality has been committed and hence, the order passed by the learned Single Judge is not sustainable in the eye of law.

8. Per contra, Mr. A. K. Mehta, learned counsel for the respondent-management has submitted by defending the order passed by the learned Single Judge that there is no error since the learned Single Judge has considered the scope of the provision of Section 33-C (2) of the Act, 1947, scope of which is to compute the claim in terms of money if the claim has already been adjudicated but herein the claim of leave encashment is seriously in dispute in view of the fact that the workman was appointed on 18.01.1959 under daily rated capacity and