Madhya Pradesh High Court
The Municipal Council Damoh vs Shri Bharat Dubey on 2 May, 2016
Writ Petition No. 7839/2014
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 and grant back-wages.
Respondent workman engaged with the petitioner from 1.5.2008 was dispensed with from his services on 1.8.2010 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 with 25 % back- wages. While returning a finding of violation of Section 25 F of Act, 1947 the Labour Court observed:
lh- vks- lh- ,- 58@11 vkbZ- Mh- ,DV fjQjsal] esa izFke i{k us bl U;k;ky; dks lanfHkZr vuqlwph ds lanHkZ esas Lo;a ds dFku 'kiFk iwoZd U;k;ky; esa ntZ djk;s gSa ,oa f}rh; i{k us izFke i{k ds dk;Z ds laca/k esa eLVj izn'kZ Mh@2 ls yxk;r izn'kZ Mh@64 izLrqr fd;s gSa ftlls ;g lkfcr gksrk gS fd] izFke i{k us f}rh; i{k laLFkku esa fnukad 1-05-08 ls yxk;r 31-03-10 rd f}rh; i{k laLFkku esas yxkrkj dk;Z fd;k gS] ,oa f}rh; i{k lk{kh ftrsUnz dqekj jk; ¼Mh- MCY;w- 1½ ds U;k;ky;hu dFku ls ;g lkfcr gksrk gS fd] f}rh; i{k laLFkku esa dk;Z dh vko';drk u gksus ds dkj.k izFke i{k dks lsok ls i`Fkd dj fn;k x;k gS ,oa f}rh; i{k }kjk izLrqr eLVj jksy ls ;g lkfcr gksrk gS fd] izFke i{k us f}rh; i{k laLFkku esa lsok i`Fkdhdj.k dh fnukad ls iwoZ ds ,d dSys.Mj o"kZ esas 240 fnol yxkrkj dk;Z fd;k gS] vFkkZr~ izFke i{k dk dk;Z /kkjk 25¼ch½ vkS- fo- vf/k- ds rgr ^^yxkrkj** Js.kh dk dk;Z gksus ls og lsok i`Fkdhdj.k ds iwoZ /kkjk 25¼,Q½ vkS- fo- vf/k- ds izko/kkuksa dk laj{k.k izkIr djus dk vf/kdkjh gS ,oa ;g vfookfnr rF; gS fd] f}rh; i{k laLFkku ,d ^^m|ksx** gS] ftls vkS- fo- vf/k- ds izko/kku ykxw gksrs gSa ,oa izFke i{k dk lsok i`Fkdhdj.k /kkjk 2¼vks- vks-½ vkS- fo- vf/k- ds rgr NVuh dh ifjHkk"kk esa lekfgr gksrk gS ,oa ;g vfookfnr rF; gS fd] izFke i{k dh NVuh fd;s tkus ds iwoZ f}rh; i{k ds }kjk uk rks dksbZ uksfVl fn;k x;k gS] vkSj uk gh NVuh eqvkotk jkf'k dk Hkqxrku fd;k x;k gS] ,slh fLFkfr esa izFke i{k dk lsok i`Fkdhdj.k fuf'pr :i ls voS/k NVuh gS] ,oa izFke i{k f}rh; i{k laLFkku esa iwoZor lsok esa cgky gksus dk vf/kdkjh 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."
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 the direction for reinstatement with 25 % back-wages 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