- (1.)CHALLENGING an award dated 23.8.2001 passed by the Labour Court, Shahdol in I.D. Case No.35/1999, finding the termination of service of respondent to be retrenchment and terming it to be illegal due to non-compliance of the mandatory provision of Section 25-F and directing for his reinstatement, the writ petition is filed by the State Government.
(2.)RECORDS indicate that respondent employee was engaged as a daily wage employee in a nursery run under the administrative control of the Forest Department. He was engaged on 11.5.1992 and continued to work upto October 1997, when his services were orally brought to an end. On a dispute being raised, the justification or otherwise of the termination was referred to the Labour Court and the Labour Court while answering the reference has passed the aforesaid impugned award.
Shri Samdarshi Tiwari, learned Government Advocate, argued that in the present case the burden of proving that the employee has worked continuously for a period of one year has been shifted upon the employer and in doing so, it is argued that the Labour Court has committed an error. That apart, it is stated that the establishment where the respondent/employee was working has been closed down and, therefore, reinstatement and grant of benefit is not permissible. Finally, it was argued that the establishment where the respondent employee was working was not an 'industry' within the meaning of section 2(j) of the Industrial Disputes Act and, therefore, the reference itself was illegal. Shri Vivek Rusia, learned counsel for the respondent, refutes each and every contention as has been advanced and submits that the respondent workman entered the witness box, gave his own statement alongwith certain documents to show that he had worked continuously for the period in question and in rebuttal the petitioner's examined a witness who only gave an oral statement with regard to working of the workman. However, the witness of the petitioner did not bring the documents namely - the attendance register, the payment voucher and the muster-roll to substantiate his oral contentions, and in that view of the matter the Labour Court took adverse inference with regard to non-production of documents by the employer and in doing so, it is stated that the Labour Court has not committed any error.

As far as closing down of the establishment and the inability of the employer to engage the respondent/employee is concerned, Shri Vivek Rusia submits that even if the establishment is wound up, the respondent employee is entitled to retrenchment compensation and the same having not been paid, the retrenchment/termination is illegal and in holding so it is argued by Shri Vivek Rusia that the Labour Court has not committed any error. As far as the last submission with regard to the department being not an 'industry' is concerned, Shri Vivek Rusia submits that no such objection was raised either before the Conciliation Officer when the conciliation took place or before the Labour Court where the reference was made and as the question of the department being an 'industry' or not is a mixed question of law and fact, it is argued that for the first time the said objection cannot be raised now in this writ petition. We have heard learned counsel for the parties and perused the records.

(3.)ON a perusal of the records, it is seen that the workman concerned entered the witness box and gave his detailed statement with regard to his working for various periods. It was established by him by way of his evidence that he has worked for 240 days in a calendar year and has, therefore, completed the requisite criteria required to come within the purview of having worked for a continuous period of one year as contemplated under section 25-B of the Industrial Disputes Act, 1947. However, in rebuttal the respondents examined one witness, who gave certain dates with regard to employment of the workman concerned, but when he was asked as to on what basis he was making the statement, it was indicated by him that the records are available, they are in the office, but he did not produce the same. According to the witness of the petitioner, the records pertain to muster-roll, payment vouchers and attendance register. When the records were available with regard to working of the employee concerned and were not produced, the Labour Court took adverse inference as the statement of their witness was not supported by documentary evidence, which were available with them. In that view of the matter, we are of the considered view that the Labour Court has not committed any error in holding that the non-production of the records available has to be viewed seriously and an adverse inference drawn. The finding in this regard with regard to working of the employee for a period of one year continuously is a finding of fact recorded by the Labour court after due appreciation of the material available on record and when the employer - namely the petitioner herein, did not produce the original documents available with them in support of their contentions, they cannot now blame the Labour Court for having taken an adverse inference. Accordingly, the first ground canvassed by Shri Samdarshi Tiwari is found to be unsustainable. As far as the second ground is concerned, if the establishment where the workman was working is closed down, still the workman would be entitled to retrenchment compensation and as the retrenchment compensation was not paid, the Labour Court has not committed any error in holding the retrenchment to be illegal. Payment of retrenchment compensation as contemplated under section 25-F of the ID Act is a condition precedent for retrenchment of an employee and if the statutory precedent is not followed, it is a settled principle of law that the retrenchment is illegal. In that view of the matter, we find no error in the order passed by the Labour Court holding the retrenchment to be illegal. If the petitioner's feel that due to closing down of the department they are unable to employ the workman, it is for them to proceed in accordance with law and terminate the service on such grounds after following the requirements of law. However, in the present case as the requirement of law was not followed before bringing the services of the employee concerned to an end, we see no reason to interfere into the matter.
As far as the last ground with regard to the establishment being an 'industry' or not is concerned, Shri Vivek Rusia is right in contending that it is a mixed question of law and fact. The question of an establishment being an 'industry' or not has to be decided depending upon the nature of work performed by the establishment and various other factual aspects of the matter and once the petitioner admitted to the jurisdiction of the Labour court and did not lead any evidence or object to the jurisdiction of the Labour Court, on the grounds as canvassed, we are of the considered view that the petitioner's cannot be permitted to raise this ground, which is a mixed question of law and fact, for the first time in this petition under Article 226/227 of the Constitution. Accordingly, the third ground urged by Shri Samdarshi Tiwari is also found to be unsustainable.