L. mohapatra, J.
1. The petitioner in this writ application has challenged the award of the Labour Court. Bhubanesvvar dated July I, 1997 holding that the termination of the services of the opposite party No. 2 is illegal and unjustified and further directing the petitioner to reinstate the opposite party No. 2 with 50% back wages.
2. Case of the opposite party No. 2 is that he was given appointment in the post of N.M.R. in the year 1984. He continued in the said post without break till April 30, 1987. On May 1, 1987 when he had gone to attend to his duties the petitioner refused to allot any work to him and thereafter in spite of repeated requests also the opposite party No. 2 was not given any work. He had made representations to the higher authorities and having failed everywhere a dispute was raised. After failure during conciliation a reference was made to the Labour Court. The Reference runs as follows:
'Whether the action of the Management of Bhubaneswar City Distribution Division (O.S.E.B.) Bhubaneswar in terminating the services of Sri Amiya Ranjan Satpathy, the N.M.R. with effect from May 1, 1987 is legal/is justified? If not what relief Sri Satpathy is entitled to?'
3. The petitioner-management filed its written statement stating that the claim of the opposite party No. 2 is stale one having been raised seven years after disengagement. The claim of the opposite party No. 2 never worked from 1984 to 1987. According to the petitioner-Management the opposite party No. 2 was engaged as N.M.R. with effect from February 1, 1987 till April 30, 1987 except April 1, 1987 to April 10, 1987 for a specified work for physical verification of the consumers. The total period of working days of opposite party No. 2 was 79 days and he never completed continuous service of 240 days. After May. 1987 the opposite party No. 2 did not turn up for duty and as such voluntarily abandoned the job. Therefore refusal by the management to allow any work to the opposite party No. 2 does not arise. Since opposite party No. 2 had only served for 79 days and abandoned job voluntarily the question of notice or pay in lieu of notice as well as retrenchment compensation do not arise.
4. Labour Court, Bhubaneswar framed two issues, such as whether termination of the services of the opposite party No. 2 with effect from May 1, 1987 is legal and justified and what relief the opposite party No. 2 entitled to. On consideration of evidence on record the Labour Court held that the opposite party No. 2 was working under the petitioner from 1984 to 1987 and said period of service was a continuous one. The Labour Court further held that Section 25F of the Industrial Disputes Act having not been complied with, the termination was illegal and therefore directed reinstatement of opposite party No. 2 into service with 50% back wages.
5. Shri B.K. Nayak, learned counsel for the petitioner submitted that the evidence on record would indicate that the opposite party No. 2 worked only for 79 days i.e. from February 1, 1987 to April 30, 1987 except the period from April 1, 1987 to April 10, 1987. The evidence of witnesses examined on behalf of the management will also clearly indicate that the opposite party No. 2 had not completed 240 working days in a year and therefore question of payment of any retrenchment compensation under Section 25F of the I.D. Act does not arise. He further submitted that there is no material on record to show that the opposite party No. 2 was engaged from 1984 to 1987. No documents were produced by the opposite party No. 2 in support of such statement, rather the documents filed on behalf of the petitioner clearly indicate that the opposite party No. 2 was only engaged as N.M.R. in the year 1987 for the period stated above for a specified job and was disengaged after completion of the same and such disengagement will not come within the purview of retrenchment and is covered under Section 2(oo)(bb) of the I.D. Act. Shri Nayak also submits that claim of the opposite party No. 2 is a stale one since he was disengaged in the year 1987 and raised a claim after a lapse of seven years during the year 1993.
6. Shri Somnath Mishra, learned counsel for the opposite party No. 2 submitted that the evidence on record clearly shows that the opposite party No. 2 was engaged from 1984 to 1987 continuously and therefore had completed 240 days in a year. In view of such evidence and in view of the admitted fact that the opposite party No. 2 was not paid any retrenchment compensation and there was no compliance of Section 25F of the I.D. Act such retrenchment was illegal and therefore the Labour Court rightly answered reference in favour of the opposite party No. 2. He further submitted that after disengagement in the year 1987 several representations were made by the opposite party No. 2 to different authorities and having failed everywhere the opposite party No. 2 raised a dispute and after failure in conciliation a reference was made. Therefore, it cannot be said that the claim of the opposite party No. 2 is a stale one.
7. First question to be decided is whether the opposite party No. 2 was engaged from 1984 to 1987 or he was engaged for the period from February 1, 1987 to April 30, 1987 except ten days of disengagement as stated in the written statement. Opposite party No. 2 in his evidence has stated that he joined in the City Distribution Division, Bhubaneswar on May 1, 1984 as N.M.R and performing official work till April 30, 1987. He was working in Laxmisagar Electrical Section and since joining till April 30, 1987 he was continuously doing work without any break. He has further stated that no written appointment order was issued to him and he was refused work by the management with effect from May 2, 1987. In cross-examination no question has been put to the opposite party No. 2 with regard to his claim of engagement from 1984 to 1987. Only question that was put is whether any retrenchment order was issued to him or not. Therefore, statement of opposite party No. 2was (sic) that he was working as N.M.R. continuously without any break from April 1, 1984 to April 30, 1987. Only question that was put is whether any retrenchment order was issued to him or not. Therefore, statement of opposite party No. 2 that he was working as N.M.R continuously without any break from April 1, 1984 to April 30, 1987 remained uncontroverted. On the other hand, witness No. 1 examined on behalf of the management-petitioner has specifically stated in cross-examination that at the time of appointment of opposite party No. 2 as N.M.R. no interview was conducted and on his: approach only opposite party No. 2 was taken as N.M.R. Nowhere in his evidence he has stated that appointment letters were issued to such N.M.Rs. The management witness No. 2 also in his cross-examination stated that as per suitability the second party workman was engaged and he does not remember if any written order was given or not for his engagement. It appears from the evidence of both witnesses that no seniority list of N.M.R. engaged in the year 1987 was maintained. Therefore, in absence of any appointment order or order of disengagement, it could not be possible on the part of the opposite party No. 2 to produce any record in support of his claim that he was engaged continuously from 1984 to 1987. If the said statement was refuted by the management it was the duty of the management to produce the records or atleast cross-examine opposite party No. 2 with regard to claim of his engagement from 1984 to 1987. Neither the opposite party No. 2 cross examined in that regard nor any records were produced to show that from 1984 to 1987 the opposite party No. 2 had been engaged as N.M.R. Therefore, there is no option left for the Court except accepting the statement of the opposite party No. 2, that he had been engaged as N.M.R. from May 1, 1984 to April 30, 1987. Admittedly, Section 25F of the I.D. Act. has not been complied with. In the written statement filed by the petitioner specific stand was taken that the opposite party No. 2 did not work more than 240 days continuously in a calender year and he was only engaged for a period of 79 days. In course of argument Sri Nayak submitted that since the petitioner was engaged for a period of 79 days question of compliance of Section 25F of the I.D. Act does not arise. Since I have held that the claim of the opposite party No. 2 that he was engaged as N.M.R on May 1, 1984 till April 30, 1987 is accepted, non-compliance of Section 25F of the I.D. Act makes termination illegal and therefore I do not find any justification to interfere with the finding of the Labour Court.
8. So far as the question of stale claim is concerned, learned counsel for the petitioner has relied upon a decision reported in The Nedungadi Bank Ltd. v. K. P. Madhavankutty and Ors. AIR 2000 SC 839 : 2000-I-LLJ-561. The Apex Court in the said decision held that law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. In the aforesaid decision the delinquent-employee was dismissed from service after enquiry. Appeal filed by the said employee was also rejected. Seven years thereafter, the employee complained of discrimination on the ground that two other dismissed employees were reinstated. Under what circumstances they were dismissed and subsequently reinstated were not mentioned. In those circumstances, the Apex Court held that complaint made after lapse of 7 years giving rise to industrial dispute was bad. In the present case, as it appears from the evidence of opposite party No. 2 that he was refused employment with effect from May 2, 1987 and after refusal of employment to him two of his Juniors Radhu Maharana and Banamali Mantri were taken into service. He has brought the matter to the notice of the Executive Engineer through letter sent by certificate of posting. He also made several representations and the postal receipts were marked as Exts. 1 to 1/i. Since the Executive Engineer did not listen he raised the dispute in the Labour Office. After conciliation failed, a reference was made to the Labour Court. Under such circumstances, it cannot be held that the claim of the petitioner was a stale one and could not have been referred for adjudication.
9. I do not find any merit in the writ application and the same is dismissed.