Madhya Pradesh High Court
The Municipal Council Damoh vs Shri Bharat Dubey on 2 May, 2016
Writ Petition No. 7831/2014
2.5.2016
Shri Anshuman Singh, learned counsel for the petitioner.
Shri Pradeep Kumar Dwivedi, learned counsel for respondent
No. 1.
With consent of learned counsel for the parties the matter is heard finally.
Solitary issue raised in this petition is as to the competency of Labour Court to direct reinstatement.
Respondent workman engaged with the petitioner from 6.6.1990 was dispensed with from his services on 30.6.1995 which resulted in raising of industrial dispute before the competent authority. With the failure of conciliation before Assistant Labour Commissioner the dispute was referred for adjudication to Labour Court as to whether the removal of workman is valid and if not the relief he is entitled for?
Claim and counter-claim were filed before the Labour Court and respective parties led their evidence. Labour Court on a finding that the workman having worked for more than 240 days was retrenched without adhering to the stipulations contained under Section 25-F of Industrial Disputes Act, 1947 and found the retrenchment to be bad, directed for reinstatement. While returning a finding of violation of Section 25 F of Act, 1947 the Labour Court observed:
"bl okn iz'u ds laca/k esa izFke i{k jkts'k dqekj lkgw ¼ih-MCyq-1½ us Lo;a ds dFku 'kiFk iwoZd U;k;ky; esa ntZ djk;s gSa ,oa mlds }kjk f}rh; i{k laLFkku esa fd;s x;s dk;Z ds laca/k esa nLrkost izn'kZ ih@1 ls yxk;r izn'kZ ih@16 izLrqr fd;s gSa] blds vykok izFke i{k us U;k;ky; ds ek/;e ls f}rh; i{k ls izFKe i{k ds dk;Z ds laca/k esa fnukad 6-6-90 ls yxk;r 30-6-95 rd ds eLVj jksy izdj.k esa vkgwr fd;s Fks ijarq U;k;ky; }kjk funsZf'kr fd;s tkus ds ckotwn Hkh f}rh; i{k us izFke i{k dh lsok ls lEcaf/kr mDr vof/k ds eLVj jksy izdj.k esa izLrqr ugha fd;s x;s gSa ,slh fLFkfr esa f}rh; i{k ds fo:) foijhr fu"d"kZ dh mi/kkj.kk dh tkrh gS ,oa ;g vo/kkj.kk dh tkrh gS fd] izFke i{k us f}rh; i{k laLFkku esa 6-6-90 ls 30-6-90 dh vof/k esa yxkrkj dk;Z fd;k gSA"
The Labour Court further found "blds vykok f}rh; i{k dh vksj ls izFke i{k ds dk;Z ds laca/k esa is fcy okÅpj izn'kZ Mh@2 ls yxk;r izn'kZ Mh@60 izLrqr fd;s gSa ftlls Hkh ;g izekf.kr gksrk gS fd] izFke i{k us lsok i`Fkdhdj.k dh fnukad ls iwoZ ds ,d dSys.Mj o"kZ esa 240 fnol yxkrkj dk;Z fd;k gS ,oa izFke i{k dk dk;Z /kkjk 2 ¼,l½ vkS-fo-vf/k- ds rgr ^^dkexkj** dh ifjHkk"kk esa lekfgr gksrk gS ,oa izFke i{k us /kkjk 25 ¼ch½ vkS-fo-vf/k- ds rgr f}rh; i{k laLFkku esa yxkrkj dk;Z fd;k gS ,slh fLFkfr esa og fuf'pr :i ls /kkjk 25 ¼,Q½ vkS-fo-vf/k- ds izko/kkuksa dk laj{k.k izkIr djus dk vf/kdkjh gS bl fu"d"kZ ds lkFk okn iz'u Øekad 2 dk fujkdj.k fd;k tkrk gS "
In paragraph 9, Labour Court found:
"bl okn iz'u ds laca/k esa ;g vfookfnr rF; gS fd] fnukad 30-6-95 dks izFke i{k dh lsok lekIr fd;s tkus ds iwoZ f}rh; i{k }kjk /kkjk 25 ¼,Q½ vkS-fo-vf/k- ds izko/kkuksa dk ikyu ugha fd;k x;k gS] vFkkZr~ bu izko/kkuksa ds rgr izFke i{k dks lsok i`Fkdhdj.k ds iwoZ u&rks dksbZ uksfVl fn;k x;k vkSj u&gh uksfVl ds ,ot esa ,d ekg dk osru ,oa NVuh eqvkotk jkf'k dk Hkqxrku fd;k x;k gS] ,oa NVuh ds i'pkr~ mfpr ljdkj dks lwfpr Hkh ugha fd;k x;k gS rFkk f}rh; i{k ds }kjk /kkjk 25 ¼th½ vkS-fo-vf/k- ds rgr ^^ykLV de iLV xks** ds fl)kUr dk Hkh ikyu ugha fd;k x;k gS tcfd izFke i{k us f}rh; i{k laLFkku esa /kkjk 25 ¼ch½ vkS-fo- vf/k- ds rgr lsok i`Fkdhdj.k dh fnukad ls iwoZ ds ,d dSys.Mj o"kZ esa yxkrkj dk;Z fd;k gS] ,slh fLFkfr esa f}rh; i{k ds }kjk /kkjk 25 ¼,Q½ ,oa /kkjk 25 ¼th½ vkS-fo-vf/k- dk ikyu ugha fd;s tkus ls izFke i{k dh NVuh fuf'pr :i ls voS/k NVuh gSA"
Relying upon the decision in Bharat Sanchar Nigam Limited v. Man Singh [(2012) 1 SCC 558], Assistant Engineer, Rajasthan Development Corporation and another v. Gitam Singh [(2013) 5 SCC 136], it is submitted on behalf of the petitioner that the Labour Court grossly erred in law in directing reinstatement with 25 % back- wages.
Learned counsel appearing for respondent workman; however, contradicts the same. It is submitted that since the termination of the respondent-workman was held invalid being in violation to Section 25-F of the Industrial Disputes Act, 1947 it was within the power of Labour Court to have directed for reinstatement with 25% back- wages. Counsel for the respondent-workman has placed reliance on the decision in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others [(2013) 10 SCC 324] and Tapash Kumar Paul v. Bharat Sanchar Nigam Limited and another [(2014) 15 SCC 313] to bring home the submission that once the termination is held to be bad reinstatement is the normal rule.
In Deepali Gundu Surwase (supra) it was held by their Lordships:
38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3...... ...... .....
38.4......... .... .....
38.5........ .... .....
38.6....... .... .....
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Kagrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.
Similarly in Tapash Kumar Paul (supra) it is held by their Lordships:
"11. Therefore, in the light of the decision of this Court in Deepali Gundu case (supra) which has correctly relied upon higher Bench decision of this Court in Surendra Kumar Verma case and Hindustan Tin Works (P) Ltd., I am of the opinion that the appellant herein is entitled to reinstatement with full back wages since in the absence of full back wages, the employee will be distressed and will suffer punishment for no fault of his own."
As to the ground raised by the petitioner management regarding delay, a cogent finding has been returned by the Labour Court while entertaining the industrial dispute. These findings are not shown to be perverse. The Labour Court found that earlier the workman had raised a dispute against non-regularization which was a subject matter of Case No. 33/ID Act/94 (Reference). The claim was turned down vide award dated 30.7.2001. It was during pendency of said reference that services of workman were terminated on 30.6.1995. That, though the termination order was not questioned by the workman in the pending reference, a fresh dispute was raised by him before the Conciliation Officer on 14.8.2009 which having failed the matter was referred by the Appropriate Government for adjudication before Labour Court.
True it is that against the award dated 30.7.2001, the petitioner had preferred a Writ Petition No. 4586/2002 which was withdrawn on 5.10.2012. But in the considered opinion of this Court and as rightly observed by the Labour Court that the same cannot be treated to be a bar for raising a dispute against the termination.
Considered thus, the contention raised on behalf of petitioner that the award suffers from vice of perversity as it has ignored the aspect that the Labour Court has entertained a delayed claim. On the contrary the Labour Court taking into consideration raising of dispute at a belated stage has not granted any back-wages to the respondent workman.
In the case at hand the award under challenge when is tested on the anvil of law laid down by Supreme Court in Deepali Gundu (supra) and Tapash Kumar Paul (supra) and the above analysis the order for reinstatement cannot be faulted with as would warrant any interference in a petition under Article 227 of the Constitution of India.
Consequently petition fails and is dismissed.
(SANJAY YADAV) JUDGE VIVEK