Madhya Pradesh High Court
Vishwanath Jagdish Prasad And Company ... vs Munnalal Pandey @ Munnailal on 26 September, 2022
Author: Maninder S Bhatti
Bench: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 26th OF SEPTEMBER, 2022
WP-08975-2012
BETWEEN:-
VISHWANATH JAGDISH PRASAD AND
COMPANY THR. PARTNER SANSWARLAL
CHAMADIA (DEAD) THROUGH LRS. JAGDISH
PRASAD CHAMADIA S/O LATE SHRI
SANWARLAL CHAMADIA MAHATMA GANDHI
ROAD NEAR GREEN TALKIES (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI UTTAM MAHESHWARI, ADVOCATE)
AND
1. ARUN KUMAR DWIVEDI @ RAJU S/O SHRI RAM
KHILAWAN GRAM GUNHAR POST UHIKVARA
(MADHYA PRADESH)
2. BHARAT PETROLEUM CORPORATION LTD.
[BHARAT PETROLEUM COMPANY] THR.
MANAGER STATION ROAD SATNA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI P.K. MISHRA, ADVOCATE)
WRIT PETITION No. 8847 of 2012
BETWEEN:-
VISHWANATH JAGDISH PRASAD AND
COMPANY THORUGH PARTNER LATE
SANWARLAL CHAMADIA (DEAD) THORUGH
LRS. JAGDISH PRASAD CHAMADIA S/O LATE
SHRI RAMKUMAR CHAMADIA, AGED ABOUT 82
YE A R S , MAHATMA GANDHI ROAD NEAR
GREEN TALKIES SATNA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI UTTAM MAHESHWARI, ADVOCATE)
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 9/30/2022
5:27:11 PM
2
AND
1. MUNNALAL PANDEY @ MUNNAILAL S/O SHRI
GAYASHARAN PANDEY GRAM ANS POST
BARUDHA (MADHYA PRADESH)
2. BHARAT PETROLEUM THR. MANAGER
STATION ROAD SATNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI P.K. MISHRA, ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This order also govern disposal of WP No.8847/2012.
For the sake of convenience facts of WP No. 8975/2012 are being taken note of.
The respondent/workman was employed with the petitioner firm which is a partner ship firm on purely temporary basis. The respondent/workman was required to operate the petrol pump, however, as the dealership of the petrol pump was suspended on 29/09/2005 and subsequently terminated on 10/03/2006, thus, the said premises was not utilized for any purposes and therefore, there was no operation of the petrol pump after 29/09/2005 the services of workman were dispensed with. Yet, the respondent/workman raised a dispute as regards termination of services and in terms of reference, the Labour Court, Satna proceeded to try the claim of the workman which ensued in passing of the award dated 29/11/2011 which is being assailed in the present petition.
Learned counsel for the petitioner/employer submits that the Labour Court has grossly erred in passing the impugned award inasmuch as the dealership of the petrol pump suspended w.e.f. 29/09/2005 and eventually Signature Not Verified Signed by: ASTHA SEN Signing time: 9/30/2022 5:27:11 PM 3 terminated on 10/03/2006, therefore, the workman was no more employed with the petitioner after 29/09/2005, hence, the Labour Court could not have awarded the compensation to the respondent/workman to the tune of Rs.50,000/-.
Learned counsel for the petitioner submis that the legislature has taken this eventuality into consideration and the provisions have been stipulated in Section 25FFF of the Industrial Dispute Act, 1947. The same deals with the eventualities where the undertakings are closed down on account of reasons beyond the control of employer. In the present case, since the dealership of petrol pump was terminated by the company and the said reason was beyond the control of the petitioner/employer in terms of proviso contained under Section 25 FFF of the Industrial Dispute Act, 1947, the respondent/workman could not have been awarded the compensation exceeding his average pay for three months. Therefore, the award of compensation to the tune of Rs.50,000/- by the Labour Court was nullity and the Labour Court exceeded its jurisdiction while passing the award in violation of the Statutory Provisions contained under Section 25 FFF of the Industrial Dispute Act, 1947. The, learned counsel also submits that the factum as regards the suspension of dealership of petrol pump on 29/09/2005 has not been taken into consideration by the Labour Court, thus, submits that the award impugned be set aside.
Per contra, learned counsel for the respondent/workman submits that the employer in reply to statement of claim in paragraph 6 (b) submitted that the dealership of petrol pump was suspended on 29/09/2005 and terminated on 10/03/2006 but the said pleadings were not supported by the evidence of the witness of the employer. Learned counsel while taking this Court to the examination-in-chief filed under Order 18 Rule 4 of Code of Civil Procedure by Signature Not Verified Signed by: ASTHA SEN Signing time: 9/30/2022 5:27:11 PM 4 Shri Sawaramal chamadia who while claiming himself to be a proprietor of the petitioner's firm, submitted an affidavit that the dealership of the petrol pump was terminated on 10/03/2006, however, in the entire affidavit, there is no averment as regards suspension of dealership of petrol pump on 29/09/2005. Therefore, submits that the Labour Court while taking into consideration the fact that though the services of the respondent/workman were terminated on 30/09/2005 but the dealership of petrol pump was terminated on 10/03/2006, thus impugned award requires no interference.
Heard rival submissions of the parties and perused the record. A perusal of the impugned award reflect that the Labour Court observed that since the workman/respondent worked from April, 2001 to 30/09/2005. thus. completed more than 240 days in a calendar year. It is further observed by the Labour Court that the services of the respondent/workman were terminated on 30/09/2005 and the petitioner/employer did not produce any evidence to demonstrate that the petrol pump of the petitioner was seized and dealership of the petrol pump was placed under suspension. This findings are evident from the perusal of paragraph 21 of the award. The, Labour Court thus, while taking into consideration the aforesaid findings, came to a conclusion that the services of the respondent/workman terminated on 30/09/2005 and as the dealership of the petrol pump was later on terminated on 10/03/2006 thus the respondent/workman was not entitled for reinstatement but was entitled for the compensation to the tune of Rs.50,000/-.
The Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh ( 2013) 5 SCC 136 held in paragraphs- 27 and 29 as under:-
"27. In our view, Harjinder Singh and Devinder Singh do not lay down the Signature Not Verified Signed by: ASTHA SEN Signing time: 9/30/2022 5:27:11 PM 5 proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.
29. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/- by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum"
The aforesaid facts make it crystal clear while awarding a compensation, the Labour Court is required to take into consideration the tenure of services rendered by the respondent/employer with the petitioner. In the present case, as per the findings as arrived by the Labour Court in paragraph 20, the respondent/workman worked with the petitioner from April, 2001 till 30/09/2005, therefore, the award of compensation, commensurate with the tenure of the services rendered by the employee with the employer.
Signature Not Verified Signed by: ASTHA SEN Signing time: 9/30/2022 5:27:11 PM 6The stand of the employer that as per Section 25FFF of Industrial Disputes Act, 1947, the compensation ought to have been assessed while taking into consideration the closure of undertaking was beyond control of the employer, is misconceived. The Labour Court has taken into consideration the facts that prior to termination of petrol pump dealership on 10/03/2006, services of the petitioner terminated on 29/09/2005. Hence, the petitioner/employer failed to establish that reason behind the termination of services of workman was closure of undertaking.
In the considered view of this Court, as the Labour Court has clearly observed that the petitioner/employer failed to establish that the dealership of petrol pump was suspended on 30/09/2005, thus, while taking into consideration the tenure of the services renderd by the respondent/workman, has passed the impugned award which requires no interference.
Accordingly, the award impugned dated 29/11/2011 requires no interference, hence, the petitions stand dismissed.
Resultantly, the interim order dated 09/09/2022 also stands vacated.
(MANINDER S BHATTI) JUDGE Astha Signature Not Verified Signed by: ASTHA SEN Signing time: 9/30/2022 5:27:11 PM