Madhya Pradesh High Court
M/S Birla Corporation Limited vs Algoo Rai on 23 April, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 23 rd OF APRIL, 2024
MISC. PETITION No. 992 of 2018
BETWEEN:-
M/S BIRLA CORPORATION LIMITED THR. ITS
AUTHORIZED SIGNATORY LT. COL. ANIL DUHOON S/O
LT. COL. SHRI S.S. DUHOON A/A 52 YEARS HEAD AND A
P.O. BIRLA VIKAS SATNA, (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.B. TIWARI-ADVOCATE)
AND
ALGOO RAI S/O SHRI SINGHASAN RAI, AGED ABOUT 59
YEAR S , MAHUA BASTI SATNA, P.O. BIRLA VIKAS
SATNA, TEH. RAGHURAJNAGAR, (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SIDDHARTH VERMA-ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
In the instant petition, the petitioner/employer has assailed the order dated 31.10.2017 passed in Case No.11/2015/I.D.Act passed by the presiding Officer, Labour Court, Satna whereby the learned labour court allowed the application filed by the respondent/employee under Section 33 & 33 (A) of the Industrial Disputes Act, 1947 (for short, 'the ID Act') wherein the employee challenged the discontinuation of services on the ground that he has attained 58 years of age of superannuation and he was not extended the benefit of amendment in Standing Order issued by the State Government by notification Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 2 dated 28.6.2014 and 25.10.2014 by which the age of superannuation was enhanced in private industries from 58 years to 60 years.
2. The employer has assailed the order on the ground that employee who was working as Badli worker had already filed a case before the labour court registered as Case No.14/2012 for classification as permanent employee and the same was pending, however, during the pendency of the case, his services were discontinued and respondent/employee filed another Case No.18/2014 for reinstatement which was referred to Mega Lok Adalat wherein dispute was settled between the parties and the respondent/employee was permitted to continue in service till the age of superannuation and as the employee has attained the age of superannuation on 15.7.2014, his services were terminated w.e.f. 1.2.2015 by the petitioner/employer.
3. The respondent/employee challenged the termination of services due to superannuation by preferring an application before the labour court under Section 33 and 33(A) of the ID Act mainly on the ground that no notice was issued to him before terminating his services and the benefit of the amendment notified by the State Govt. in Standing Order in respect of private industries dated 28.6.2014 and 25.10.2014 by which the age of superannuation was enhanced by 58 to 60 year was not extended to the respondent/employee which amounts to change in service condition during the pendency of the proceedings before the labour court as Case No.14/2012 was pending.
4. Learned labour court after securing reply of application and affording the opportunity to parties to lead oral evidence by impugned order dated 31.10.2017 allowed the application preferred by the respondent/employee and passed the award by which the petitioner/employer was directed to pay all monetary benefits to respondent/employee on the basis of average working Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 3 days from 1.2.2015 till attaining the age of 60 years considering the average working days calculated on the basis of work done by employee.
5. The petitioner/employer has assailed the order of labour court mainly on three grounds; firstly on the ground that notification issued by State Govt. for amending standing order were already challenged by employer before this Court in W.P.Nos.786/2015, 19596/2015 and 15299/2017 wherein interim relief was granted by the coordinate benches to the employer, therefore, the labour court was not justified in passing the order considering the notification issued by State Government enhancing the age of superannuation. The second ground raised by petitioner/employer is that no case of change in the service condition was made out therefore, the application preferred under Sections 33 and 33A of ID Act was not maintainable and; thirdly the order is assailed on the ground that learned labour court has awarded entire monetary benefits to respondent/employee which could not have been awarded.
6. Learned counsel for the petitioner submits that the labour court has exceeded its jurisdiction by entertaining application filed under Section 33 and 33-A of the ID Act considering the age of superannuation as 60 years, whereas notification issued for amending Standing Orders was under challenge before this Court. He further submits that coordinate Bench in M.P.No.993/2018 (M/s Birla Corporation Ltd. Vs. Rudra Prasad Tiwari) decided the issue of payment of back-wages in the similar circumstances by order dated 20.12.2023 and has held that granting of 50% of back-wages was justified in a case where organization superannuated employees on attaining age of 58 years and the labour court has held that he was entitled to continue up to the age of 60 years. Learned counsel for the petitioner prays for setting aside Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 4 the impugned order passed by the labour court.
7. Per contra, learned counsel appearing on behalf of respondent/employee supported the order passed by labour court and submits that the case was pending before the labour court in respect of the classification as permanent employee registered as case No.14/2012 and during the pendency of the case, the state government has issued a notification and the employer without obtaining any permission from the court changed the service condition amended by State Government through notification and terminated the services of the respondent/employee without issuance of notice or without passing any order. The action of petitioner/employer was not only in violation of principle of natural justice but was unjust and improper. He further submits that learned labour court has passed the impugned order in accordance with law and there is not reason to interfere in the order passed by the labour court. He relied on the judgment of Apex Court reported in (2013) 10 SCC 324 (Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors.)
8. I have heard learned counsel for the rival parties and perused the documents available on record.
9. The respondent/employee was working in the petitioner's organization as Badli worker and he moved an application registered as Case No.14/2012 for classification as permanent employee, however, during pendency of that application, his services were discontinued and consequently, he moved another application registered as Case no.18/2014 which was settled in Mega Lok Adalat and employee was permitted to continue in service in terms of the settlement. However, his services were terminated w.e.f. 1.2.2015 without issuance of any notice and without passing any order on the ground that he has already attained the age of superannuation on 15.7.2014 therefore, he cannot Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 5 continue in service.
10. It is not in dispute that notification issued by the State Government in Standing Order 14-A of annexure appended to M.P. Industrial Employement (Standing Order) Rules 1963 on 28th and 30th June, 2014 by which the age of retirement of employees employed in private industries was enhanced from 58 to 60 years. In view of the aforesaid amendment which came into force before attaining the age of 58 years by the respondent/employee, he was entitled to continue in service till 60 years of age. So far as the legality of the amendment is concerned, the same was challenged before the division bench in W.P.No.4979/2024 which was dismissed by order dated 15.7.20214 and the Division Bench declared the amendment as intra vires and according to law. The said order was passed even prior to termination of respondent/employee w.e.f.1.2.2015 therefore, the contention raised by the learned counsel for the petitioner that as the petitions were pending before this Court, the benefit of notification could not be extended to respondent/employee, is not accepted.
11. So far as maintainability of the application under Section 33 and 33 A of the respondent/employee is concerned, it is apparent that Case No.14/2012 was pending before labour court and during pendency of the case without obtaining any permission from the Court before whom the case was pending, the petitioner/employer has terminated the services of the respondent/employee. Therefore, the respondent/employee was having right to approach to the labour court by preferring application under Section 33 and 33- A of the ID Act complaining that service condition has been changed without obtaining leave or permission of the Court and consequently, the labour court Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 6 has power to entertain and decide the same. The objection raised in respect of the maintainability is concerned is also not acceptable. The proceedings were maintainable before the labour court and the labour court has not exceeded its jurisdiction by entertaining the application moved by the respondent/employee under Section 33 and 33-A of the Industrial Disputes Act. The petitioner has also assailed the order on the ground that labour court has wrongly awarded the monetary benefits in its entirety and the same ought to have been awarded up to 50% only as decided in MP No.993/2018 by the coordinate bench. So far as deciding the issue of back-wages and monetary benefits are concerned, the Apex Court in the matter of Deepali Gundu Surwase (supra) has summarized the issue as under:
"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. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 7 employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame.
Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] . 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] 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 [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] 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."
12. In the matter of Birla Corporation (supra) which has been relied upon by learned counsel for the petitioner, the labour court itself has awarded 50% of back-wages and considering the fact that labour court is having discretion to decide regarding payment of back wages and in view of the decisions of Supreme Court in case of Ishwarlal Mohanlal Thakkar Vs. Pashchim Gujrat Vij Company & Anr. (2014) 6 SCC 437 and Shalini Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 8 Shyma Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329, the coordinate bench of this Court refused to interfere in the order passed by labour court by exercising the power under Article 226 and 227 of the Constitution of India however, it was not decided in that case that what should be the criteria for awarding the back wages or monetary benefits.
13. As per the law summarised by Apex Court in the matter of Deepali Gundu Surwase (surpa), the employee is under obligation to plead that he was not gainfully employed from the date of his termination and he cannot be expected to prove the negative. He has to atleast assert on oath that he was neither employed nor engaged in any gainful business or venture and therefore, he did not have any income, then the burden will shift to employer and in the absence of any evidence on behalf of the employer, the employee is entitled for the full back- wages.
14. Considering the case at hand in the light of law laid down by the Apex Court in the case of Deepali Gundu (supra), the respondent employee in his affidavit of chief examination in para 5 has specifically stated that he is unemployed from the date of termination and there is no source of income available to him. This fact has not been challenged during the cross examination of the respondent/employee and in the absence of any challenge to the said fact and any evidence by the petitioner/employer that after the termination, the employee was working somewhere else or getting some income, the labour court has not committed any error in awarding full back-wages to respondent/employee. The discretion lies with the labour court to decide the quantum of back-wages and when the discretion has been exercised judiciously, the same cannot be interfered by this Court in the absence of any cogent material to demonstrate that the findings of the labour court are perverse.
Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM 915. Consequently, the order passed by the labour court appears to be just and proper and does not suffer from any illegality or jurisdictional error.
16. Resultantly, the petition is dismissed without any order as to costs.
(VINAY SARAF) JUDGE P/-
Signature Not Verified Signed by: PREETI TIWARI Signing time: 4/30/2024 7:16:43 PM