Madhya Pradesh High Court
Nav Bharat And M.P. Chronicle Group Of ... vs Krishna Sharan Shrivastava And Anr. on 10 February, 1988
Equivalent citations: (1990)ILLJ398MP
ORDER Dr. T.N. Singh, J.
1. Against two orders passed on 28th November 1984 and 29th April 1986 by Labour Court No. 1, Gwalior, this writ petition is preferred by the employer.
2. The first order (Annexure-P/21 is an ex parte award which was passed in favour of the first respondent (hereinafter refered to as 'the respondent') on 28th November 1984 allowing his claim for reinstatement and back wages, upon holding his retrenchment illegal and void. By the second order, Annexure-P/1, rendered on 29th April 1986, the application of the employer to set aside the award has been rejected upon holding that no sufficient cause was either pleaded or proved for non-participation in the hearing of the dispute which had been referred for adjudication.
3. We propose first to deal with the petitioner's contention pressed in respect of the second order. Although two decisions are cited at the Bar in support of the challenge to the order dated 29th April 1986, we have no doubt that the decisions do not support the petitioner in any way. The decision in the case of Grindlays Bank, (1981-I-LLJ-327) has been considered by their Lordships subsequently in Satnam Verma, 1985-I-LLJ-79), and the view expressed earlier was buttressed. In our opinion, there can be no dispute today about the settled law that an application lies before the Labour Court for setting aside an ex parte award. However, it is also settled law that in disposing of such application, the Labour Court shall be well within its jurisdiction to reject the same if the applicant fails to make out sufficient cause for his default. In Grindlays Bank (supra), it has been categorically held that even after an ex parte award is published in the Official Gazette, an application to set aside the same would lie to the Labour Court and on sufficient cause being shown for his default the award could be set aside. In Satnam Verma (supra), it was contended before their Lordships that the High Court and the Tribunal had rightly held that on merit no case was made out for setting aside the ex parte award as no sufficient cause for doing so was shown, the contention did not prevail and it was held that the Labour Court was in error in rejecting the request promptly made for setting aside the award; or, in other words, no reasonable opportunity was granted to the applicant/petitioner to show sufficient cause for his default in as much as the Tribunal was "overwhelmed by its erroneous approach that it had no jurisdiction to entertain the application".
4. In the instant case, the position is entirely different. We have looked at Annexure-P/9 which is petitioner's application made on 11th February 1985 for setting aside the ex parte award. We have read the application very carefully and we have no reason to differ from the view taken by the Labour Court in the impugned order that "sufficient cause" was not even pleaded by the petitioner in the said application. The application comprised of three short paragraphs and only one sentence in a single paragraph contains averment that may be regarded as an attempt to show cause for default. It runs thus: "PRAKARAN SUCHANA BHI DWITIYA PAKSHA NIYOKTA KO SAMUCHIT RUP SE NAHIN HUI HAIN" In the course of hearing on the application, no effort was made by the applicant/employer to improve his position by leading evidence in support of either the facts stated of improper service or other fact or greater substance to sustain the prayer made in the application for setting aside the ex parte award, In the impugned order, the Labour Court has made a detailed discussion of the contention pressed before it in reaching the finding on available material that even the alleged "improper service" had not been established because notices had been served by registered post and acknowledgment receipts in respect thereof were placed on record. The other finding of Labour Court which is also unassailable is that the employer/applicant had failed to adduce any evidence to show cause why despite service the employer could not appear and take pan in the proceedings. Indeed, from Annexure-6, it appears that the employer had taken part in the conciliation proceedings at the earlier stage and by his order passed on 8th December 1983, the Conciliation Officer had to record that the conciliation failed on account of employer's absence on that date though the date was fixed with his consent.
5. We feel satisfied that the impugned order dated 29th April 1986 is a perfectly legal and valid order and the finding arrived therein being based on record, the order does not suffer from any error of law apparent on the face of record so as to call for our interference on the Writ Side.
6. The second contention is on the merit of the claim which was allowed. It is not disputed that the provisions of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, for short, "the W.J. Act", are applicable in this case. Indeed, the contention rather is that Section 4 of the said Act is attracted to the instant case that overrides the provisions of the Industrial Disputes Act, 1947, for short, 'the I.D. Act'. The admitted position on facts is that the Labour Court accepted the claim of the respondent that he had been retrenched from service (as per order Annexure P-5) on and from 1st March, 1980. The order indeed is bald and barren and clearly manifests that the services of the respondent had not been terminated for any misconduct.
6-A. It is true that in the said order, which is captioned as "Notice" said to have been published in the newspaper and was, therefore, a general notice, the respondent's status is shown as "representative", but that position is not established on materials placed before us. Although the petitioner had not filed written statement as he did not appear and the award was passed ex parte, on perusal of the order aforesaid of the Conciliation Officer, it does not appear that at any stage, the stand manifested in the "Notice" was taken in the conciliation proceedings. True, in his application Annexure P/9, for the first time on 11th February 1985, the employer stated that the respondent was never a full time employee under him. Unfortunately, even that stand would not avail the petitioner because of what is to be read in Section 2(f) of the W.J. Act. It is contemplated therein that a "working journalist" may be in either whole time or part time employment and a "correspondent" is expressly embraced in the definition of the term.
6-B. In the instant case, the respondent's case has been that he was a "correspondent" of the petitioner's newspapers and his case was accepted by the Conciliation Officer as also the Labour Court. Before us, in this matter, are placed credentials of the respondent which support his case that he was a correspondent of the newspaper Nav Bharat owned by the petitioner. Annexure R/12 is the employer's certificate manifesting this position and Annexure R/13 shows that he had been accredited with the State Government till 31st December 1979 as the correspondent of Dainik Nav Bharat. Indeed, the respondent admits that the employer, the petitioner, had entrusted him with some additional responsibilities of collecting advertisements and running the local office, but his contention, which cannot be rejected, is that thereby his status as "correspondent" was not changed.
7. Reliance on Section 4 of the W.J. Act would not avail the petitioner in any manner because it contains special provision in respect of certain cases of retrenchment made between 14th July, 1954 and 12th March, 1955. The provision evidently does not cover the case of the respondent whose retrenchment took place in 1980. We, rather, feel it safe and confident in accepting the contention of Shri Upadhyaya, appearing for the respondent, that Section 3 of the said Act covers respondent's case because thereunder the provisions of I.D. Act are made applicable to a working journalist except to the extent modified wider Sub-section (2) thereof. However, the modification, as is rightly admitted, merely makes substitution in Section 25F of I.D. Act in respect of notice period. Section 3(2)(b) contemplates three months' notice in case of working journalist to be given in the case of his retrenchment.
8. Because provisions of I.D. Act are made applicable to respondent's case in virtue of Section 3(1) of W.J. Act, we can legitimately look at Section 2(oo) of the I.D. Act which defines the term "retrenchment" to mean "termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action". Accordingly, in the instant case, no exception can be taken to the finding of the Labour Court on the material available to it that respondent had been retrenched from service on and from 1st March, 1980. Indeed, before us, in this Court, even at this late stage, no case has been made out by the petitioner to enable us to take the view that respondent's case is not covered by Section 2(oo) of I.D. Act, in any manner. Evidently, the petitioner is not able to take that stand in as much as it had never been his case that for any misconduct the respondent was "removed". Before the Conciliation Officer as also the Labour Court, it was respondent's case that his services had been terminated by the petitioner to avoid the financial burden imposed on him under Palekar Tribunal.
9. Shri Mittal laboured hard to persuade us to accept his submissions that in any view of the matter, the services of the respondent could only be said to have been terminated in accordance with the Standing Order applicable to him and as such, his case could not be one of retrenchment. However, for this new plea set up for the first time in this Court, no foundational facts are placed to sustain the plea. We have not been shown what Standing Orders are applicable to the petitioner, and how his services were terminated thereunder. On the other hand, neither in the petition any reference to any Standing Order is made, nor any such reference finds place in "Notice", Annexure P/5. Counsel has cited several decisions in support of his contention, but in the absence of foundational facts, we do not think that it is at all necessary to refer to those decisions on which reliance must be regarded as misconceived and futile.
10. We have, on the other hand, found ample substance in the reliance of Shri Upadhyaya on the decisions cited by him to support his contention that when a retrenchment is made without due compliance with the conditions prescribed in Section 25, then it would be case of illegal termination of service and justifying an award for reinstatement and back wages. We also have no hesitiation to accept his contention that on the facts of the case in hand, it is established that the conditions prescribed in Section 25F have not been complied with. In the instant case, it had not been disputed that three months' notice to the respondent with reference to his status Working journalist has not been given in violation of the provisions of Section 25F of the I.D. Act read with Section 3(2) of the W.I. Act although the respondent had put in much more than the required one year's service. That the respondent had not been paid retrenchment compensation in terms of the provisions of Section 25F is also not disputed.
11. Reliance is placed by Shri Upadhyaya on at D.B. decision of this Court in the case of Factory Manager, Central India Machinery Manufacturing Co. Ltd., v. Naresh Chandra Saksena reported in 1984 MPLJ 402, wherein several decisions of the Apex Court have been catalogued and considered. This Court has taken the view that by now law has been settled firmly by the Supreme Court that termination of service for any reason whatsoever otherwise than punishment by way of disciplinary action or voluntary retirement or on reaching the age of superannuation or on medical grounds amounts to retrenchment under Section 2(oo) of the I.D. Act. It has been further held that termination of service under Standing Order 11 of the Industrial Employment (Standing Orders) Rules, 1963, framed under M.P. Industrial Employment (Standing Orders) Act, 1960 will come under the mischief of retrenchment as defined under Section 2(oo) of the I.D. Act and that unless the conditions prescribed in Section 25F are fulfilled, the termination ill be void. We have carefully gone through the decision and are satisfied that it is not necessary for us to reconsider the law laid down by the Supreme Court and read again the decisions of their Lordships which have been considered by this Court. (Mohanlal, (1981-II-LLJ-70); L.Robert D'Souza, (1982-I-LLJ-330); K.S.R.T.C., (1984-I-LLJ-110); Gammon India Ltd., (1984-I-LLJ-233), and indeed, the leading case of N.S. Money, (1976-I-LLJ-478).
12. A huge mass of case-law, Shri Mittal has also cited in reply to Shri Upadhyaya's contention. We have looked to the decision and we have no hesitation to say that it was a futile exercise on his part to do so in as much as the decisions have hardly any relevance or compelling force that would meet the weight of authorities cited by Shri Upadhyaya. Some decisions are on Article 311(2) and Services Rules reliance whereon must be deemed wholly misconceived. We may merely record those citations - O.N.G.C. (1980- II-LLJ-155); Raj Kumar, (AIR) 1975 SC 1116; Virendia Kumar, 1977 (2) MPWN 46; Sheikh Babu, 1977 (2) MPWN 457; State of Nagaland, (AIR) 1970 SC 537; State of U.P., (1977-I-LLJ-200); Union of India, (1985-II-LLJ-206); Bachi Ram, (1985-I-LLJ-294); A.G. Benjamin, 15 FLR 347; Delhi Transport Undertaking, (1970-II-LLJ-20) and State of Bihar, (1970-II-LLJ-440).
13. However, we may look also at the other decisions which Shri Mittal has cited. Although Tata Engineering, 19 FLR 150 is cited, the decision, in our view, supports respondent's case. It was held in that case that the order of "discharge" was not conclusive and the substance of the matter could be enquired into by the Industrial Tribunal to consider its real character. It was further held that Company had two alternatives and, therefore, instead of taking disciplinary action, the workman concerned could be discharged if so provided by the Standing Orders. True, in almost same vein another Bench of the Supreme Court spoke in the case of Bombay Municipality, (AIR) 1978 SC 380 holding the case to be one of termination simpliciter and not by way of punishment. Santosh Gupta, (1980-II-LLJ-72) does not speak anything out of tune of Sections 2(oo) and 25F, I.D. Act and states rather the settled law that the expression "termination of service for any reason whatsoever" covers any kind of termination of service except those expressly excluded in Section 25F, Ravindra Kumar's case, (1988-I-LLJ-73) is one of a temporary employee and in that view of the matter, the innocuous order of termination was held valid though as compensation Rs. 25,000/- was awarded still to the employee in that case. The Full Bench decision of this Court in Central Cooperative Bank, 1988 I CLR 173 (M.P.H.C.) is on the general law of Master and Servant and deals with the case of a temporary employee whose termination of service without payment of one month's salary was held valid.
14. To sum up, we need to say very little now. We have no option except to accept Shri Upadhyaya's contention that the impugned order rendered by the Labour Court on 28th November, 1984 holding the respondent to have been illegally retrenched is not liable to interference in our hands. We are satisfied that the impugned order does not suffer any infirmity despite the fact that it was an ex parte order.
15. In the result, the petition fails and is dismissed. Both orders dated 28th November, 1984 and 29th April, 1986. Annexures P/2 and P/1 respectively, are upheld. No costs in the facts and circumstances of the case.