Madhya Pradesh High Court
Lochan Singh Sanodiya vs The State Of Madhya Pradesh on 17 July, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No.&Parties Name W.P.No. 6722 of 2017.
Lochan Singh Sanodiya
Vs.
State of M.P. and others
Date of Judgment 17/07/18
Bench Constituted Justice Sujoy Paul
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting No.
Name of counsels for parties Petitioner : Shri Ravindra Bisen, Adv.
Respondents :Shri Rajesh Tiwari, GA
Law laid down -
Significant paragraph numbers -
(ORDER)
(17.07.2018)
In this petition, petitioner has challenged the order dated 27.03.2017 whereby the claim of the petitioner for regularization was declined by the respondents stating that (i) the petitioner has never worked as daily rated employee; (ii) after order of the court, he never submitted his joining.
2. Shri Bisen, criticized this order by taking this court to the judgment of the Labour court dated 08.1.2010 whereby Labour court gave a finding that petitioner has worked for more than 240 days in a calender year and his termination without following the legislative mandate of Section 25-F of Industrial Disputes Act, 1947 is bad in law. Petitioner was directed to be reinstated by the Labour Court without back wages. In turn, petitioner submitted his joining on 19.03.2010 (Annexure P/2). This document was received by the office of the respondents which can be gathered from the seal and signature mentioned in the said document.
3. Shri Rajesh Tiwari, GA supported the impugned order and contended that the petitioner never submitted the joining and in this regard he drew
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W.P.No.6722/17.
attention of this court on para-19 of the reply. He submits that if Labour Court's order was not complied with by the employer, the petitioner could have filed the execution proceedings but his petition, at this stage, cannot be entertained.
4. No other point is pressed by learned counsel for the parties.
5. I have heard the parties at length and perused the record.
6. The first reason given in the rejection order is that petitioner has never worked with the department. This argument is devoid of substance in view of categorical finding of the Labour court that the petitioner has worked from 01.04.1987 to 31.12.2000 without their being any break. Thus, the first reason pales into insignificance. Moreso, when order of Labour Court dated 08.01.2010 has attained finality in absence of any challenge to it. The second contention of Shri Tiwari, GA needs to be rejected for the simple reason that if an employer was required to reinstate the petitioner and it has failed to comply with the said order, it cannot take benefit of its own wrong or inaction. There is a legal maxim which reads as under :-
"commodum ex injuria sua nemo habere debet" (no party can take undue advantage of his own wrong).
The Apex Court in (2007) 11 SCC 447 (Kusheshwar Prasad Singh Vs. State of Bihar) considered the said legal maxim and opined as under :-
"It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, " a wrongdoer ought not to be permitted to make a profit out of his own wrong."
It the opinion of this Court, the said legal principle will apply in this matter also with full force and Gwalior Development Authority cannot be
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permitted to take advantage of their inaction or belated action in reinstating the petitioner. (See also: Pradeep Jain and Ors. Vs. State of M.P. and Ors. 2012 SCC Online MP 1757). The joining letter of the petitioner dated 19.03.2010 contains seal and signature of the receiving authority. No doubts are created on the genuineness of seal and signature of Annexure P/2 in the return. A bald statement is made in the return that this document Annexure P/2 is not available on the record with the respondents. I do not see any merit in the said contention. The petitioner has submitted his joining and if that joining letter is not kept properly or is thrown in dustbin by the respondents, the petitioner cannot be denied the benefits. Putting it differently, a terminated employee, on his success from the court can at best submit his joining before the competent authority. It is for the competent authority to act on the said joining and keep the joining letter on record. If employer is not getting it in the record, no presumption can be drawn that joining itself was not submitted. At the cost of repetition, the petitioner's case is supported by pleadings and the evidence Annexure P/2 which contains the seal and signature of the department. Thus, I find no reason to disbelieve the said contention. Resultantly, the twin reasons assigned by the respondents cannot sustain judicial scrutiny. Accordingly, the impugned order dated 27.03.2017 is set aside. The respondents shall consider the case of the petitioner afresh by taking into account the observations made hereinabove. Respondents shall take a fresh decision in accordance with law within sixty days from the date of communication of this order.
7. Petition is allowed to the extent indicated above.
(Sujoy Paul) Judge MKL Digitally signed by MANOJ KUMAR LALWANI Date: 2018.07.17 17:24:23 +05'30'