Madhya Pradesh High Court
Bhagwat Singh Thakur vs The State Of Madhya Pradesh on 5 December, 2012
Author: M.A.Siddiqui
Bench: M.A.Siddiqui
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W.A.No.1036/11
HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR
(M.P.)
Writ Appeal No.1036/2011
Bhagwat Singh Thakur S/o Shri Shivdas Singh Thakur
aged about 48 years, Conductor Piparia Depot R/o Behind
R.N.A. School, Sardar Ward Piparia, Tehsil Piparia,
District Hoshangabad M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through Principal Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
O/o Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.276/2012
Prathvi Vallabh Singh S/o late Kunwar Singh, aged about 53 years,
R/o House No.1396, Wright Town, Jabalpur M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, M.P. Road Transport Corporation,
Head Office, Habibganj, Bhopal M.P.
......Respondents
Writ Appeal No.277/2012
Ravi Sarathe S/o Javar Singh, aged about 52 years,
R/o Main Road, Kalayani Mandir, Gulabra, Chhindwara M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, M.P. Road Transport Corporation,
Head Office, Habibganj, Bhopal M.P.
......Respondents
Writ Appeal No.279/2012
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W.A.No.1036/11
Ashok Pathak S/o late Girjashankar Pathak, aged about 50 years,
R/o 519 Shiv Nagar, Damoh Road, Jabalpur M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through Principal Secretary
Ministry of Transport Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
O/o Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.284/2012
Mohd.Sagir S/o Shri Mohd.Yusuf, aged about 49 years,
Ex-Conductor MPRTC, Jabalpur R/o House No.776/480,
Gurandi Bazar, Darshan Chowk (Tilak Ward) Jabalpur,
District Jabalpur M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, M.P. Road Transport Corporation,
Head Office, Habibganj, Bhopal M.P.
......Respondents
Writ Appeal No.285/2012
Heeralal Singh, S/o late Mirra Prasad, aged about 50 years,
Ex-Conductor MPRTC, R/o Village Salhai, Post Nandanpur,
Tehsil Ajaygarh, District Panna M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, M.P. Road Transport Corporation,
Head Office, Habibganj, Bhopal M.P.
3. Divisional Manager, M.P. Road Transport Corporation,
Civil Lines, Jabalpur M.P.
4. Assistant Labour & Personnel Officer, Habibganj, Bhopal M.P.
......Respondents
Writ Appeal No.287/2012
Onkar Nath Tiwari S/o Shri Sudama Prasad Tiwari,
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W.A.No.1036/11
aged about 51 years, Conductor MPRTC,
R/o Jagdeesh Mandir Garha Phatak, Jabalpur M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through Principal Secretary
Ministry of Transport Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
O/o Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.334/2012
Vijay Singh S/o Shri B.S.Thakur, aged about 48 years,
Occupation-Ex.Conductor, MPRTC, Jabalpur R/o
Hathital Colony, Gorakhpur Jabalpur, District Jabalpur (MP)
........Appellant
Vs.
1. State of Madhya Pradesh, through Principal Secretary
Ministry of Transport Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Head Office Habibganj, Bhopal (MP)
......Respondents
Writ Appeal No.1119/2011
Hariram Sahu S/o Shri M.Sahu, aged about 50 years,
R/o Sardar Patel Ward, Edarn Garden Colony, Mandla (M.P.)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1120/2011
Harnarayan Ahirwar S/o Shri P.L.Ahirwar, aged about 51 years,
R/o C/o Sakina Bi, Jama Maszid, Kachari Mohalla, Mandla (M.P.)
........Appellant
Vs.
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W.A.No.1036/11
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1121/2011
Shrikant Tiwari S/o Shri S.P.Tiwari, aged about 51 years,
R/o Mahatma Gandhi Ward, Infront of Saikripa, Mandla (M.P.)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1122/2011
Rajesh Kumar Sharma S/o Shri D.R.Sharma, aged about 48 years,
R/o C/o Munni Namdeo, Singh Wahini Ward Mandla (M.P.)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1123/2011
Ramakant Dubey S/o Shri Sitaram Dubey, aged about 49 years,
R/o C/o Surendra Singh Baghel, Lalipur Chouraha, Mandla (M.P.)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1124/2011
Maqsood Ali S/o Sayeed Mansoor Ali, aged about 49 years,
R/o C/o Sakina Bi, Jama Maszid, Kachari Mohalla, Mandla (M.P.)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
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W.A.No.1036/11
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1128/2011
D.S.Parihar S/o Shri V.S.Pariha, aged about 49 years,
Occupation-LDC, MPRTC, Head Office, Habibganj, Bhopal
........Appellant
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1132/2011
J.P.Sharma S/o Shri H.R.Sharma, aged about 55 years,
Occupation-UDC, MPRTC, Head Office, Habibganj, Bhopal M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1134/2011
Sudama Prasad Shairola S/o Shri G.P.Shairola, aged about 47 years,
Occupation-UDC, MPRTC, R/o MIG 1/9, Saraswati Nagar, Bhopal M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1135/2011
K.B.Sharma S/o late Shri P.K.Sharma, aged about 51 years,
Occupation-LDC, MPRTC, R/o LIG 289-B Sector Rajeev Nagar,
Bhopal M.P.
........Appellant
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W.A.No.1036/11
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1136/2011
Rajaram Fadtade S/o Shri Janardan Fadtade, aged about 47 years,
Occupation-Helper, MPRTC, R/o EWS-488, Saraswati Nagar, Bhopal M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1173/2011
Kamlesh Jain S/o R.D.Jain,
aged about 51 years, R/o Rajamandi, Kila Gate, Gwalior MP
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.1177/2011
Ramesh Kumar Laharia S/o Matadin,
aged about 53 years, R/o Indra Nagar, 34 Murad, Gwalior MP
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
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W.A.No.1036/11
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.1125/2011
Umashankar Lodhi S/o Shri H.Lodhi, aged about 52 years,
R/o C/o Shri Panchu Chakarvarti, Leelapur, Mandla (M.P.)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1126/2011
Brijendra Kumar Tiwari S/o late Ram Milan Tiwari, aged about 50 years,
R/o Badi Khairi, Old Dindori Road, Near Christian Missionary,
Narmada Ghat, Mandla (M.P.)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Bhopal (MP)
......Respondents
Writ Appeal No.1127/2011
Ashutosh Panday S/o Shri C.P.Panday, aged about 49 years,
Occupation-Steno Typist, R/o G 95/12 Tulsi Nagar, Bhopal M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1129/2011
Bhagat Singh Rawat S/o Shri Dharam Singh Rawat, aged about 46 years,
Occupation-LDC, MPRTC, R/o EWS, 496, Saraswati Nagar, Bhopal M.P.
........Appellant
Vs.
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W.A.No.1036/11
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1130/2011
A.L.Gaur S/o Shri Sitaram Gaur, aged about 52 years,
Occupation-UDC, MPRTC R/o J-590 Kotra Sultanabad, Bhopal M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1131/2011
V.S.Sisodia S/o late Shri B.S.Sisodia, aged about 52 years,
Occupation-T.S. 1st M.P. Road Transport Corporation,
Head Office, Habibganj, Bhopal M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Principal Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport Corporation,
Head Quarter Habibganj, Bhopal, through its Managing Director.
......Respondents
Writ Appeal No.1174/2011
Hira Singh Narvaria S/o Gangaram Narwariya
aged about 55 years, R/o village Khidarpura,
PO Pipari, District Bhind MP
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
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W.A.No.1036/11
......Respondents
Writ Appeal No.1175/2011
Ranvir Singh S/o Shri Amar Singh, aged about 49 years,
R/o Village Ajanar, Tahsil Lahar, District Bhind MP
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.17/2012
Raj Kumar Mishra S/o Shri Ambika Prasad Mishra
aged about 48 years, Occupation-Traffic Supervisor-I,
MPRTC, Head Office, Bhopal R/o MIG 20 Kanishka
Apartment, Shivaji Nagar 5 No.Bus Stop Bhopal (MP)
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Head Office, Habibganj, Bhopal (MP)
......Respondents
Writ Appeal No.272/2012
Pawan Tiwari S/o Shri K.N.Tiwari, aged about 49 years,
R/o Near Jain Kirana, Wright Town, Jabalpur MP
........Appellant
Vs.
1. State of Madhya Pradesh, through Principal Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Habibganj, Bhopal (M.P.)
......Respondents
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W.A.No.1036/11
Writ Appeal No.273/2012
Harishankar Tantaway S/o Shri Bhagwandas Tantaway
aged about 50 years, R/o Ward No.15 Post & Tehsil
Rahli, District Sagar M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Head Office, Habibganj, Bhopal (MP)
......Respondents
Writ Appeal No.274/2012
Rishabh Kumar Jain S/o late Anandi Lal Jain, aged about 43 years,
R/o P-572, Shiv Nagar Colony, Damoh Road, Jabalpur MP
........Appellant
Vs.
1. State of Madhya Pradesh, through Principal Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.275/2012
Gangaram Rao S/o Shri Ganesh Rao,
aged about 54 years, R/o Near Jain Kirana, Wright Town,
Wright Town, Jabalpur M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Head Office, Habibganj, Bhopal (MP)
......Respondents
Writ Appeal No.1210/2011
Jawaharlal Sahu S/o Shri Mangilal Sahu
aged about 54 years, R/o Mali Ka Mandir,
Khilchipur, Distt. Rajgarh M.P.
........Appellant
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W.A.No.1036/11
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.1211/2011
K.G.Bairagi S/o Shri Ishwar Lal,
aged about 54 years, R/o Village Amkhedi,
Distt. Rajgarh M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
Writ Appeal No.1212/2011
Roop Singh Raghuwansi S/o Shri Anant Singh,
aged about 47 years, R/o Bada Bazar, Chhoti Ganesh Mandir,
Madhi, Vidisa M.P.
........Appellant
Vs.
1. State of Madhya Pradesh, through its Secretary
Ministry of Transport, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Madhya Pradesh Road Transport
Corporation, Through, Managing Director
Habibganj, Bhopal (MP)
3. Assistant Labour and Personnel Officer,
Madhya Pradesh Road Transport Corporation,
Head Office, Habibganj, Bhopal (M.P.)
......Respondents
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Writ Appeal No.1284/2011
Brijendra Rathore S/o Shri Kandhi Lal Rathore
aged about 48 years, Ex-Tin Smith, M.P.R.T.C.
Jabalpur, R/o Flat No-4, Anjani Apartment,
Sanjivani Nagar, Garha, Jabalpur District Jabalpur (MP)
Vs.
1. State of Madhya Pradesh, through its Secretary
Transport Department, Mantralaya, Vallabh Bhawan, Bhopal M.P.
2. Managing Director, Madhya Pradesh Road Transport
Corporation, Head Office, Habibganj, Bhopal (MP)
......Respondents
PRESENT: Hon'ble Shri Justice Krishn Kumar Lahoti
Hon'ble Shri Justice M.A.Siddiqui
Shri Sanjay Verma, Shri Shekhar Sharma, Shri Ashish Trivedi, Shri D.K.Tripathi,
Shri V.Tripathi, Shri A.K.Gupta, Shri P.Jain, Shri D.K.Khare, Shri G.P.Dubey,
Shri D.S.Chouhan, Shri Anand Shukla, Advocates for appellants/employees.
Shri P.C.Chandak, Counsel for respondents/M.P. Road Transport Corporation.
ORDER
(Passed on 5/12/2012) Krishn Kumar Lahoti J.
This batch of appeals is being decided by this common order arising out of common order passed by the Single Bench in W.P.No.12645/10(s) and other connected matters.
2. The controversy involved in these appeals are in respect of non-payment of back wages to the appellants who were compulsorily retired by the respondents after completion of 20 years of service or 50 years of age, in public interest.
3. The learned Single Judge has considered this aspect at length and found that the provision for premature retirement except by way of punishment has not been provided in the M.P. State Road Transport Corporation Employees' Service Regulations, 1950 (hereinafter referred to as 'Regulations of 1950') Such provision is also not provided under the M.P. Industrial Employment (Standing Orders) Act, 1961 and in absence of specific provision in the aforesaid Regulations or Act, such recourse was not available to the respondents for ..13..
W.A.No.1036/11retiring compulsorily the appellants in public interest. The writ Court allowed the writ petition partially, quashed the order of compulsory retirement, directed reinstatement of appellants but without back wages. This part of the order has been challenged by the appellants in these appeals.
4. So far as question in respect of compulsory retirement is concerned, M.P. State Road Transport Corporation and others had filed writ appeals before this Court. All the writ appeals were heard and decided by a common order in Writ Appeal No.1075 of 2011-M.P. Road Transport Corporation Vs. Bhagwat Singh Thakur and connected matters on 21.9.2012 and the aforesaid writ appeals have been dismissed. In these appeals, the only question remains in respect of grant of back wages to the appellants which have been denied by the learned Single Judge by the impugned orders.
5. Learned counsel appearing for appellants submitted that the grievance in these appeals is a short one i.e. in respect of non-grant of back wages to the appellants who were compulsorily retired on 7.8.2010, though the order has been held to be void ab initio. It was further submitted that the Division Bench of this Court at Gwalior considering this aspect, in Writ Appeal No.643/2011- Umesh Kumar Verma Vs. M.P. Road Transport Corporation & another, on 20.3.2012, allowed the writ appeal and directed payment of 50% of back wages from the date of compulsory retirement till date of order. That an SLP, preferred against the order of the Division Bench, bearing SLP (Civil) No.18125-18126 of 2012 has already been dismissed by the Apex Court vide order dated 4.7.2012 and this appeal may be allowed accordingly.
6. Shri P.C.Chandak and Shri Uttam Maheshwari, learned counsel appearing for respondents submitted that the Division Bench of this Court at Gwalior has not considered the provisions as contained in Section 34(2) of the Road Transport Corporation Act, 1950 because the State Government was empowered to issue directions to the Corporation and the Corporation in compliance of the aforesaid directions had retired compulsorily to the appellant. It was submitted that this aspect may be examined in this appeal.
7. We have perused the record. We find that the Single Bench has considered this aspect in paras 9 & 13 of the impugned order. The Single Bench considered the provisions of Road Transport Corporation Act which provides for issuance of general instructions by the State Government, while the provision as ..14..
W.A.No.1036/11contained in the Standard Standing Order under the Act of 1961 does not provide any such provision and held that the aforesaid instructions were contrary to the Standard Standing Order under the Act of 1961 and were not applicable in the establishment of the respondents. We have considered rival contentions of the parties and find that the Division Bench of this Court at Gwalior considering the similar controversy held in Umesh Kumar Verma (supra) in paras 6, 10,11, 12 and 13 thus:-
6. The General Administration Department vide a letter dated 13th of August 2009 directed the Managing Director, M.P. State Road Transport Corporation to consider the compulsory retirement of employees after completing 20 years of service or attaining the age of 50 years. Thereafter, the Under Secretary vide letter dated 31.08.2009 directed the Managing Director to initiate proceedings in regard to premature retirement of employees in accordance with letter of the General Administration Department dated 13th of August 2009. Consequently, a screening committee was constituted on the basis of the recommendations and the screening committee retired the appellant compulsorily w.e.f. 24.02.2012. The appellant challenged the order of compulsory retirement in the writ petition and the learned Single Judge allowed the writ petition on the basis of an order passed by the learned Single Judge in Writ Petition No.13483/2010(s) decided on 26.08.2011 and the other connected matters at the Main Seat at Jabalpur. The learned Single Judge has held that the Corporation had no power and authority to retire its employees prematurely and allowed the petition. The learned Single Judge denied the back wages. The employees filed the appeals in regard to denial of back wages and the Corporation also filed appeals against the order of learned Single Judge in regard to questioning the findings of the learned Single Judge that the Corporation had no power and authority to retire its employees prematurely.
10. The General Administration Department vide letter dated th
13 of August 2009 directed the Managing Director, M.P. State Road Transport Corporation to consider the cases for compulsory retirement of its employees after completing 20 years of service or attaining the age of 50 years and thereafter the under Secretary vide letter dated 31.08.2009 directed the Managing Director to initiate proceedings in this regard. These letters are in contravention to the statutory regulars framed by the Corporation. It is well settled principle of law that the executive instructions may supplement the statutory provisions but they can not supplant the statutory provisions. The Hon'ble Supreme Court in State of Maharashtra vs. Jagannath Achyut Karandikar, reported in AIR 1989 SC Page 1133 has held as under:-
"The circular is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Article 309 of the Constitution. The Government could not have restricted the operation of the statutory rules by issuing the executive instructions. The executive instructions may ..15..W.A.No.1036/11
supplement but not supplant statutory rules . The High Court was in error in ignoring this well accepted principle."
11. Apart from this, Five Judges Bench of this Court in the case of Madhya Pradesh State Road Transport Corporation Vs. Heeralal Oghhelal and others, reported in 1980 MPLJ 8, has held that the regulations made under Section 45(2)(c) of the Road Transport Corporation Act, 1950 are to be subordinated to Standard Standing Orders on matters specified in the schedule to the Standard Standing Orders Act. The relevant findings of the Five Judges Bench are as under:-
"13. Before parting with the case we desire to point out that in Ramchandra's case the conflict between the regulations made under the Road Transport Corporations Act, 1950 and the Standard Standing Orders made under the Madhya Pradesh Standing Orders Act was solved by recourse to Article 254 of the Constitution. It was held in that case that the Road Transport Corporations Act was enacted by Parliament in exercise of its powers under Entries 43 and 44 of the Union List and the Standing Orders Act by the State Legislature under entry 24 of the Concurrent List. The conclusion that one of the competing legislations pertained to a matter in the Union List, made Article 254 wholly inapplicable for now it is well settled that that Article applies only when the competing legislations, one made by Parliament and the other made by the State Legislature, both pertain to a subject in the Concurrent List. Article 254 (2) is in terms limited to matters in the Concurrent List and although in Article 254(1) the language while referring to a law made by Parliament is not that specific, judicial decisions have confined its application to Concurrent List. In A.S.Krishna v. State of Madras, AIR 1957 SC 297, p.300 while dealing with section 107(1) of the Government of India Act, 1935 which was identically worded as Article 254(1) of the Constitution, the Supreme Court observed, "For this section to apply, two conditions must be fulfilled: (1) Provisions of the provincial law and those of the Central legislation must both be in respect of a matter which is enumerated in the concurrent list and (2) they must be repugnant to each other." These observations were adopted as correct exposition of Article 254 (1) Premnath v. State of J & K AIR 1959 SC 749 p. 763 and Kerala State Electricity Board vs. Indian Aluminium Co., AIR 1975 SC 1031, p. 1039. Further, in M.Karunnadhi v. Union of India, AIR 1979 SC 898, p.902, the Supreme Court again read Article 254(1) as confined to matters in the concurrent list. If a legislation made by Parliament, which is pith and substance is under the Union List, incidentally trenches upon a subject in the concurrent list or State list covered by a State Legislation, the legislation made by Parliament whether before or after the State legislation will prevail in case of conflict not because of something contained in Article 254 but because of inherent supremacy of Parliament's power of legislation in respect of a matter in the Union List conferred by clause (1) of Article 245 of the ..16..W.A.No.1036/11
Constitution which operates "notwithstanding anything contained in clauses (2) and (3)" which deal with legislations in the Concurrent and State lists and which clearly provide that the power of the State Legislature to legislate in matters contained in those lists is "subject to" Parliament's power of legislation in the Union List. A conflict of this nature is conceivable and can arise because of the doctrine of pith and substance which permits incidental encroachment in the domain of the rival Legislature. However, such a conflict must be inferred only as a matter of last resort when it is impossible to reconcile the competing legislations by recourse to the rules of harmonious construction which include the rule that a general provision is not intended to come in the way of or to supersede a special provision. We may only add that it is on this principle that regulations made under section 45(2)(c) of the Road Transport Corporation Act are to be subordinated to Standard Standing Orders on matters specified in the schedule to the Standard Standing Orders Act unless the regulations are notified under section 2(2) or certified as Standing Orders in accordance with the procedure laid down in the said Act."
12. The State Government has also framed Standard Standing Orders under Section 3(b) and Section 6(3) of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 and Clause 14- A was inserted in the Standing Orders and the aforesaid clause prescribes the age of retirement of an employee from service as 58 years. There is no provision of premature retirement in Standard Standing Orders. It is not in dispute that these orders are applicable in the establishment of the Road Transport Corporation Act, hence, the order of compulsory retirement of the employee is beyond the power of the Corporation. The reasoning put forth by the learned Single Judge in this regard is in accordance with law.
13. In regard to grant of back wages, as held earlier, the order of compulsory retirement was passed without any power and authority. It is also a fact that the Corporation was in huge loss. It has accumulated loss as on 31.03.2004 of Rs.735 crore, which was increased subsequently. However, the fact remains that the employee had been retired prematurely without any power and authority. In regard to grant of back wages, Hon'ble the Supreme Court in General Manager, Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591, has held , as under:-
"8.There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important facts, which has to be taken into consideration, is the ..17..W.A.No.1036/11
length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important fact, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year."
8. The Division Bench considering the aforesaid and the applicability of the provisions as contained in the Standard Standing Order under the Act of 1961 held that in absence of any provisions in the aforesaid Act for compulsory retirement, the instructions issued by the State Government for retiring the employees were void ab initio and affirmed the order passed by the Single Bench. The Division Bench have further directed for payment of 50% back wages to the employees.
The aforesaid order was subject matter of an SLP (Civil) No.18125-18126/2012 before the Apex Court. The Apex Court in the SLP held thus:-
"These petitions are directed against order dated 20.3.2012 of the Division bench of the Madhya Pradesh High Court whereby the writ appeals filed by the petitioners were dismissed and the declaration of invalidity granted by the learned Single Judge qua their decision to prematurely retire the respondents was upheld. The petitioners have also questioned the direction given by the Division Bench for payment of 50% back wages to the respondents.
Learned counsel for the petitioners fairly stated that there is no provision in the Madhya Pradesh State Road Transport Corporation Employees Service Regulations, which were enforced with effect from 1st June, 1970 and the Madhya Pradesh State Road Transport Corporation Employees Conduct, Discipline and Appeal Regulations, 1975 for retirement of the employees after completing 20 years service or on attaining the age of 50 years but argued that the High Court was not justified in interfering with the exercise undertaken for premature retirement of the respondents because the Corporation was facing acute financial crisis. She further argued that the Division Bench committed serious error by partly allowing the appeals filed by the respondents and directing payment of 50% back wages to the respondents.
In our view there is no merit in the arguments of the learned counsel. Since the regulation under Section 45(1) of the Road ..18..W.A.No.1036/11
Transport Corporation Act, 1950, which are statutory in nature, do not postulate pre-mature retirement of the employees on completion of 20 years service or on attaining the age of 50 years, the action taken by the petitioner to retire the respondents was ex- facie without jurisdiction and the High Court did not commit any error by quashing the same and directing reinstatement of the respondents with 50% back wages.
The special leave petitions are accordingly dismissed. The petitioners are directed to implement the orders passed by the learned Single Judge and the Division Bench of the High Court within a period of four weeks from today."
9. As the order passed by the Gwalior Bench directing back wages has been affirmed by the Apex Court by a detailed order, we find that the appellants are entitled for 50% back wages from the date of their compulsory retirement till the order passed by the Single Bench and thereafter full wages till their reinstatement or attending the age of superannuation.
10. So far as contention of the respondents that under Section 34(2) of the Road Transport Corporation Act, 1950, the State Government was empowered to issue general instructions is concerned, this question was already considered by the Division Bench, referred hereinabove, and was repelled. Even for the sake of arguments, it is found that the specific provisions as contained in Section 34 (2) were not considered then it was duty of the respondents to raise this issue before the Apex Court while assailing the order passed in Umesh Kumar Verma, but the aforesaid ground was not raised or pressed before the Apex Court then the respondents cannot be permitted to raise this issue in this appeal.
11. In view of the aforesaid, these appeals are allowed with following directions:-
(1) The respondents are directed to make payment of 50% back wages to the appellants from the date of their compulsory retirement till the date of order passed by the Writ Court.
(2) Aforesaid amount be paid to the appellants by the respondents within a period of 90 days from today, failing which the appellants shall be entitled for interest at the rate of 6% p.a. from today till its payment to the appellants. (3) From the date of the order passed by the writ Court, the appellants shall be entitled for full wages till reinstatement or till the date of attending the age of superannuation, whichever is applicable.
There shall be no order as to costs.
(Krishn Kumar Lahoti) (M.A.Siddiqui ) C. Judge Judge