Madhya Pradesh High Court
The State Of Madhya Pradesh vs Mishri Lal on 21 April, 2011
Author: Sushma Shrivastava
Bench: Sushma Shrivastava
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
D.B. : Hon. Shri Krishn Kumar Lahoti & Hon. Smt. Sushma Shrivastava J.J.)
Writ Petition No.10337/2006
State of M.P. & another
Vs.
Mishri Lal
---------------------------------------------------------------------------------------------------
Shri P.K. Kaurav, Dy. Advocate General for the petitioners.
Shri S.K. Tiwari, Advocate for the respondent.
---------------------------------------------------------------------------------------------------
ORDER
Per Smt. Sushma Shrivastava, J.
An award dated 16.2.2006 passed by the Presiding Officer, Labour Court, Betul in Case No.38/I.D.A./03Ref. has been assailed in this writ petition.
2. Following dispute was referred to the Labour Court, Betul for adjudication by the Assistant Labour Commissioner, Bhopal vide letter dated 05.03.2003:-
ßD;k Jh feJhyky vk- Jh jkeizdk'k frokjh dk lsok i`Fkdhdj.k oS/k ,oa mfpr gS \ ;fn ugha rks og fdl lgk;rk dk ik= gS rFkk laca/k esa fu;kstd dks D;k funsZ'k fn;s tkuk pkfg;s \Þ
3. Respondent/workman Mishrilal was engaged as daily rated employee as Chowkidar in the office of the petitioners in the year 1984. He continuously worked as Chowkidar till 05.11.98 in the Forest Dept. His services were terminated by the petitioners on 05.11.98. The workman/respondent contended that he had continuously worked for more than 240 days in a calender year preceding his termination and had obtained the status of a regular employee, but his services were terminated by the petitioners without paying any retrenchment compensation as required by Section 25 (F) of the Industrial Dispute Act, 1947. His disengagement from service was thus illegal and he was entitled to reinstatement with full back wages and also entitled to regularization.
4. The department/petitioners, on the other hand, contended before the Labour Court that the respondent/workman was engaged as a 2 daily rated employee on the basis of job requirement and budgetary provisions from 1985 to 1996, but he did not work continuously in the department. He was employed for temporary work according to the availability of the work and was not appointed against any sanctioned post. The department/employer also contended that the respondent did not continuously work for more than 240 days in a calender year and his disengagement from service was not illegal and he was not entitled to reinstatement or back wages.
5. The labour court, after hearing the parties and analyzing the evidence of both the parties, came to hold that the respondent/workman had worked in the Forest Department with the petitioners continuously from 1984 to 5.11.98 as a daily rated employee and he had continuously worked for more than 240 days in a calender year. His termination from service without any notice and without any retrenchment compensation was illegal. The labour court also held that the respondent was not in regular and gainful employment after termination of his service, therefore, directed reinstatement of his services with 40% back wages from 5.03.03 by the impugned award. Being aggrieved, the employer/department has preferred the instant writ petition.
6. Learned counsel for the petitioners submitted that the labour court erroneously held that the respondent/workman continuously worked with the petitioners from 1984 to 1998 and worked continuously for 240 days in a calender year. Placing reliance on the decisions of the Apex Court rendered in the case of Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and another reported in (2004)8 Supreme Court Cases page 161 and Municipal Corporation, Faridabad Vs. Siriniwas reported in (2004)8 Supreme Court Cases page 195 learned counsel for the petitioners submitted that the burden was on the claimant/ workman to show that he had in fact continuously worked for 240 days in the year preceding his termination and a mere statement in this regard on the part of the workman was not enough and non-production of the muster roll for a particular part of the period concerned was not sufficient to hold that the workman worked for 240 days as claimed. Learned counsel for the petitioners also submitted that the respondent/workman was a casual worker and was not entitled to any notice or retrenchment compensation; he had no right for reinstatement and back wages, as there was no 3 evidence that he remained out of employment after his termination from service.
7. Learned counsel for the respondent/workman, on the other hand, submitted that his termination being illegal, he was entitled to reinstatement and was also entitled to more than 50% of back wages.
8. We have considered the rival submissions of the learned counsel for the parties and have gone through the record.
9. Be it noted that vide order dated 28.7.06 passed by this Court, this writ petition has been admitted only on the question of award of back wages to the respondent and not against his reinstatement. Moreover, the labour court, after discussing and analyzing the evidence of both the parties, has recorded a finding of fact that the respondent/workman continuously worked with the petitioners for more than 240 days in a year and he was disengaged from work by an oral order without any notice and retrenchment compensation in violation of Section 25 (F) of the Industrial Dispute Act, 1947.
10. The aforesaid finding of fact that the respondent/workman continuously worked for a period of 240 days in a year, does not appear to be incorrect or perverse, particularly in view of the statement of the petitioners' witness made in para 5 of his cross-examination and discussed in para 15 of the impugned award. The labour court has discussed the evidence of both the parties in para 13 to 16 of the impugned award and has given sound reasons for arriving at such a finding.
11. In view of aforesaid fact, when the respondent/workman had continuously worked for more than 240 days in a calender year with the petitioners, his disengagement from service by the department without any notice and without payment of any retrenchment compensation, as required by Section 25(F) of Industrial Dispute Act, was patently illegal and therefore, the order of his reinstatement was wholly justified.
12. As regards the question of back wages, the Apex Court in its three Judges' Bench decision rendered in the case of General Manager, Haryana Roadways Vs. Rudhan Singh reported in AIR 2005 Supreme Court page 3966 has held as under:-
"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination 4 of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment."
13. In the instant case, there was no cogent evidence that the respondent/workman was not gainfully employed after his discontinuance from service. On the other hand, it was averred that he was doing the work of "iafMrkbZ" with certain nominal income. However, looking to the length of his service with the petitioners from 1984 to 5.11.98 as a daily wager, as found by the labour court, and the nature of his job etc. in the peculiar facts and circumstances of the case, we find it appropriate that the respondent should be awarded 25% of back wages from the date of reference.
14. We according modify the award passed by the labour court as to the payment of back wages. The respondent shall be entitled to only 25% of back wages from the date of reference, i.e. 5.3.2003 till his reinstatement.
The writ petition is accordingly disposed of. No costs.
(Krishn Kumar Lahoti) (Smt. Sushma Shrivastava)
Judge Judge
21/04/2011 21/04/2011