Supreme Court - Daily Orders
M.P. State Agro-Indt. Devel. Corp. Ltd. vs Jai Prakash Gautam on 9 February, 2022
Bench: Ajay Rastogi, Abhay S. Oka
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7087 OF 2011
M.P. STATE AGROINDUSTRIES
DEVELOPMENT CORPORATION LIMITED ……APPELLANT(S)
VERSUS
JAI PRAKASH GAUTAM ….RESPONDENT(S)
ORDER
The present appeal takes an exception to the order passed by the High Court dated 04.05.2010 while upholding the award partially dated 05.10.2001 as regards reinstatement, denied back wages to the respondentworkman from the period of termination till the passing of the award.
Brief facts which manifest from the record and relevant for the purpose are that respondentworkman was engaged as a Tractor Helper in the first instance on daily wages on 28.06.1989 and had Signature Not Verified worked for a period of two months up to 25.08.1989 and thereafter he Digitally signed by SATISH KUMAR YADAV Date: 2022.02.10 17:52:35 IST Reason: was engaged in different spells, details of which are available on record at Page B of the instant appeal, which are reproduced as under: 2 “The respondent was appointed on contingency to work as Tractor Helper on daily wages on 28.06.89. The respondent was simply on contingency as daily wager and that his work has not satisfactory and his appointment was temporary for the period 26.06.89 to 25.08.89 (2 months) and thereafter he was appointed from 29.08.89 to 26.10.89 (2 months), from 30.10.89 to 23.12.89 (1 month 14 days), from 31.12.89 to 27.02.90 (1 month 28 days), from 03.03.90 to 01.05.90 (2 months), from 05.05.90 to 02.07.90 (2 months) and from 06.07.90 to 20.07.90 (15 days). Since the respondent being contingency paid employee on daily wages working as Tractor Helper, he was removed from service from 20.07.90.” His services were later terminated orally on 20.07.1990. In regard to the alleged termination, a reference was made by the appropriate Government under Section 10 of the Industrial Disputes Act, 1947(for short “Act 1947”). The terms of the reference are as follows: “ Whether the termination of service of Shri Jai Prakash Gautam, S/o Radhey Shyam Gautam is legal and proper? If not so, to what relief he is entitled and in this regard what directions should be given to the employer?” After the matter been heard, the learned Labour Court under its Award although has taken note of the narration of facts been referred to by the contesting parties while arriving to the conclusion that the appellantemployer has failed to comply with chapter 5A and 5B of the Act 1947, which according to the Tribunal, the appellant has failed to comply with the mandatory requirements of Section 25F of the Act 1947.
It may be relevant to note at this stage that after going through 3 the Award dated 05.10.2001, we are unable to find out any finding being recorded that the respondentworkman has continuously served for 240 days in one year, which is a precondition for invoking section 25F of the Act 1947 read with Section 25B of the Act 1947 and the conclusion in paragraph 7 of the Award appears to be not supported by the material available on record.
Thus, we are of the view that the finding which was recorded by the Tribunal in its Award regarding noncompliance of Chapter 5A and 5B of the Act 1947 is not supported by any material on record. Although, the final directions in terms of which reference have been answered by the Tribunal are in affirmative terms while setting aside the termination with direction for reinstatement along with back wages.
We are sorry to say that the Division Bench of the High Court in Writ Petition No. 1417 of 2006(S) while examining the impugned Award at Page 2 has recorded, as alleged, the admitted facts regarding the finding of 240 days of continuous service preceded to the date of termination and as a consequence violation of Section 25F of the 1947 Act, which was the precondition for passing order of termination not been complied with, but what being reflected from the admitted facts recorded by the Division Bench of the High Court under the impugned 4 order is not supported from the Award of the Tribunal.
This fact is not in dispute that the respondentworkman was initially engaged on 28.06.1989 and his services were orally terminated w.e.f. 20.07.1990. If we go from two dates, this may construe working for period of 240 days in the preceding twelve months from the date of alleged termination, but if we look into the statement of the working period of respondentworkman, he had worked in different spells and it is not a continuous working from the date of engagement of 28.06.1989 until his termination on 20.07.1990. In the given facts and circumstances, it is difficult to hold that he has served continuously for not less than one year required for making compliance of Section 25F of the Act 1947.
The High Court under the order impugned dated 04.05.2010, after hearing the parties, upheld the order of reinstatement and to the extent of back wages, the award of the Labour Court was set aside and that is the subject matter of challenge in the appeal before us.
It is informed to this Court that the respondentworkman was reinstated by an order dated 29.10.2010, copy of which has been placed on record and it indicates that copy of the order was sent for information to the respondentworkman as well, but this Court has been informed that in compliance of the order of reinstatement dated 5 29.10.2010, the respondentworkman has not turned up and the fact is that he has not joined the service thereafter. It is although disputed by the learned Counsel for the respondentworkman, but no counter affidavit has been filed and this Court has proceeded on the basis that pursuant to order of reinstatement dated 29.10.2010, the respondent workman has failed to respond and has not joined service in compliance thereof.
After we have heard the learned Counsel for the parties, in our considered view, the respondentworkman had not responded even after offer of reinstatement was made by an order dated 29.10.2010 and that apart, he had served for the very short period of time during the period in 19891990. At the same time, his total period of service even as per his own statement, in different spells is from June 1989 to July 1990 as a daily wager, and no evidence has been placed on record by the respondentworkman to justify that he was not gainfully employed in the intervening period that entitles him from claiming back wages which was stayed by this Court by an interim order dated 06.08.2010. The relevant part of the Order is as under: “Issue notice confined to the question of payment of back wages from the date of award till the date of reinstatement. The execution of the award to that extent shall remain stayed.” Consequently, the appeal deserves to succeed and is accordingly allowed. The award of back wages from the date of Award dated 6 05.10.2001 passed by the High Court under the impugned judgment is set aside. No costs.
Pending application(s), if any, shall stand disposed of.
…………………………...J. (AJAY RASTOGI) ……………………………J. (ABHAY S. OKA) NEW DELHI;
FEBRUARY 09, 2022.
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ITEM NO.103 Court 13 (Video Conferencing) SECTION IV-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(S). 7087/2011
M.P. STATE AGRO-INDUSTRIES DEVELOPMENT
CORPORATION LIMITED APPELLANT(S)
VERSUS
JAI PRAKASH GAUTAM RESPONDENT(S)
Date : 09-02-2022 This appeal was called on for hearing today. CORAM : HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE ABHAY S. OKA For Appellant(s) Mr. Sudhir Kulshreshtha, AOR Mr Sameer Kulshreshtha - Advocate For Respondent(s) Mr. B. K. Satija, AOR UPON hearing the counsel the Court made the following O R D E R The appeal stands allowed in terms of the signed order. Pending application(s), if any, shall stand disposed of.
(POOJA SHARMA) (BEENA JOLLY)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed order is placed on the file.)