Madhya Pradesh High Court
St Puals School vs Smt Mithlesh on 8 November, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:19451
1 MP-4368-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 8 th OF NOVEMBER, 2024
MISC. PETITION No. 4368 of 2024
ST PUALS SCHOOL
Versus
SMT MITHLESH
Appearance:
Ms. Chitra Bais - Advocate for the petitioner.
Shri Purushottam Lal Sharma - Advocate for respondent.
ORDER
This petition under Article 227 of the Constitution of India is directed against the order dated 03.05.2024 (Annexure P/1) passed by learned Presiding Officer, Labour Court No.1, Gwalior whereby the application of the petitioner to call the Bank account passbook of the respondent in which her full and final payment was made has been rejected. Further the petitioner is aggrieved by the order dated 15.03.2024 (Annexure P/2) whereby the petitioner has been directed to submit the attendance and month-wise wages register of all the employees for the period from 1994 till December, 2006 and also attendance and wages registers for preceding one year alongwith all the documents related to the service period of the respondent prior to 31.07.2021.
2. In brief, the facts of the case are that the petitioner is running a School namely, St. Paul's School at Morar. The respondent was working as Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 2 MP-4368-2024 an employee with the petitioner school and she had submitted her resignation on 23.07.2021 which was accepted on 29.07.2021. Thereafter, her full and final payment was made. The respondent raised an Industrial Dispute under section 2-A and 10 of the Industrial Disputes Act, 1947 stating that she has been orally terminated on 31.07.2021 and she prayed that her resignation be declared as illegal and she be reinstated with back-wages. The petitioner submitted the reply/written-statement wherein it has been specifically stated that the services of the respondent have not been terminated on 31.07.2021 but she has resigned on 23.07.2021 on her own accord which was accepted by the petitioner on 29.07.2021. It was further stated by the petitioner that the provisions of the retrenchment are not applicable in the case of the respondent.
3. The respondent thereafter filed an application dated 09.11.2023 before the learned Labour Court for calling certain records for the period from January, 1994 to 31.07.2021, which was duly replied by the petitioner vide reply dated 11.01.2024 whereby the petitioner stated that such an old record from January, 1994 is not available nor the record of the other employees are relevant with the individual dispute raised by the respondent. The application dated 09.11.2023 Annexure- P/5 was allowed by the Learned Labour Court vide order dated 03.05.2024, whereby the petitioner has been directed to submit list of all the employees and the attendance record month- wise, wages register of all the employees for the period from 1994 till December, 2006 and also attendance and wages registers for preceding one year alongwith all the documents related to the service period of the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 3 MP-4368-2024 respondent prior to 31.07.2021. The petitioner had submitted an application dated 13.02.2024 before the Labour Court for calling the Bank pass-book of the respondent for establishing that the full and final payment has been made by the petitioner to the respondent as a consequence of resignation submitted by her but the said application was arbitrarily rejected by the learned Labour Court vide order Annexure - P/1. Hence, being aggrieved by the orders Annexure - P/1and P/2, the present petition has been filed.
4. Learned counsel for the petitioner submits that the impugned orders Annexure - P/1 and P/2 have been passed in an arbitrary manner and a gross illegality has been committed by the learned Labour Court while passing the said orders. Hence, both the orders deserve to be quashed.
5. It has further submitted that the respondent has stated in para 7 of the Statement of Claim (Annexure - P/3) that she has worked for 240 days and she has been terminated in violation of section 25(F) of the Industrial Dispute Act. Section 25(F) prescribes that no workman employed in an industry, who has been in continuous service for not less than one year under an employment, shall be retrenched by that employer until the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to 15 day's average pay (for every completed year of continuous service). The word "continuous service" has been defined in section 25-B(2)
(a), according to which, for the purpose of this chapter, a workman shall be said to be in continuous service for a period of one year, if a workman, during a period of 12 calendar month preceding the date with reference to which calculation is to be made, has actually worked under the employer for Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 4 MP-4368-2024 not less than 240 days. Thus, it is crystal clear that the relevant period for deciding the dispute is the preceding 12 months from the date of so called termination and not beyond that. However, the learned Labour Court had directed the petitioner to submit not only the record of the respondent for the period preceding 12 months from the date of so called termination but also has directed the petitioner to submit all the records of all the employees who worked since 1994 to 2006. Thus, the said direction has been passed against the mandatory provisions of law, hence, a manifest legal error has been committed by the learned Labour Court while passing the impugned direction.
6. It is further submitted that the Hon'ble Apex Court in catena of cases has held that in regard with the dispute of termination as a result of retrenchment, the period of only preceding 12 months is relevant and not the entire period of service of an employee. However, the learned Presiding Officer of Labour Court No. 1, Gwalior has committed a gross illegality in passing the said direction.
7. It is further submitted that the learned Labour Court has erred in law while rejecting the application of the petitioner for calling the pass-book of the respondent to show that the full and final payment has been made by the petitioner in the bank account of the respondent. The application dated 13.02.2024 (Annexure P/7) has been rejected by the learned Labour Court in an arbitrary and illegal manner, hence, the said order Annexure- P/2 deserves to be quashed. To bolster her submissions, learned counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court rendered in Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 5 MP-4368-2024 the case of Surendranagar District Panchyat Vs. Dahyabhai Amarsinh reported in (2005) 8 SCC 750.
8. Per contra, learned counsel for the respondent has submitted that in the statement of claim filed by the respondent, it has been averred that the respondent had been appointed by the petitioner on the post of Safaikarmi/Supporting Staff in the year 1994. Since the respondent did not had any document with regard to her appointment, therefore, the application for calling certain records was filed by her, which was allowed by learned Lower Court vide impugned order dated 03.05.2024 (Annexure P/2). It is further submitted that for attracting of provision of Section 25-F, a workman has to work for 240 days in one calendar year but for determining the amount of compensation payable to a retrenched workman, the length of his past service had to be taken into account. Hence, no illegality has been committed by learned Lower Court in passing the impugned orders, therefore, the present petition deserves to be dismissed. To bolster his submissions, learned counsel for the petitioner has relied upon the decision rendered by the Hon'ble Apex Court in the case of Director, Fisheries Terminal Department Vs. Bhikubhai Meghajibhai Chavda reported in 2010 (2) MPLJ 30.
9. Heard learned counsel for the parties and perused the record.
10. For ready reference, Section 25B and 25F of Industrial Disputes Act is reproduced below:-
Section 25B: Definition of Continuous Service: - For the purposes of this Chapter -
(1) a workman shall be said to be in continuous service for a Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 6 MP-4368-2024 period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or as strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer --
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than --
(i) one hundred and ninety days in the case of a workman employed below ground in a mine ; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer not less than --
(i) ninety five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty five days, in any other case. Explanation-For the purposes of clause (2), the number of days on which a workman has actually worked under an employer Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 7 MP-4368-2024 shall Include the days on which --
(i) he has been laid-off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years ;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment ; and
(iv) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave does not exceed twelve weeks.
Section 25F - Conditions precedent to retrenchment of workmen: - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until --
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice ;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 8 MP-4368-2024 thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
11. The Hon'ble Apex Court in the case of Surendranagar District Panchyat Vs. Dahyabhai Amarsinh reported in (2005) 8 SCC 750, while dealing with a case, wherein the workman, who had more than 10 years of service with the District Panchayat, was terminated from service by an order dated 15.08.1985. An application was moved before the Labour Court for direction to the employer (District Panchayat) to produce muster roll and salary register from the year 1976 to 1986. The stand of the employer was that the workman was never engaged permanently and he was employed for miscellaneous work i.e. whenever there was work he was called for it. It was alleged that the workman had not completed 240 days of continuous service in the 12 months preceding the date of termination of his services and, therefore, the provision of Section 25-F of the Industrial Disputes Act was not required to be followed. The Hon'ble Supreme Court ,in the said case, while considering the provisions of Section 2 (oo) (bb) , Section 25-B a n d Section 25-F of the Industrial Disputes Act, had, in para 8 and 10, observed as follows:-
8. To attract the provisions of Section 25F, one of the condition required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 9 MP-4368-2024 uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period.
Thus the workmen shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in Sub-Section (1). The workmen must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of Sub Section(1) of Section 25B is that the workmen should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clause
(a) and (b) of Sub-s(2). By the legal fiction of Sub-s2(a) (i), the workmen shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workmen has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.
10. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 10 MP-4368-2024 period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non- compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non- compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have be proved.
12. In the aforesaid judgment, the Hon'ble Supreme Court Court was pleased to hold that the scope of enquiry before the Labour Court is confined to only 12 months preceding to the date of termination to decide the question of continuation of service for the purpose of Section 25-F.
13. In the present case, the learned Labour Court has placed the onus on the petitioner by issuing directions to submit the attendance and month- wise wages register of all the employees for the period from 1994 till Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 11 MP-4368-2024 December, 2006 and also the attendence and wages registeres for preceding one year alongwith all the documents related to the service period of the respondent prior to 31.07.2021, which is very old record and without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding her termination calling for aforesaid record was not proper, as it was the case of the respondent/claimant that she had so worked but her claim was denied by the petitioner, thus it was for the respondent/claimant to had lead evidence to show that she had in fact worked for 240 days in the year preceding her termination.
14. So far as the judgment rendered by the Hon'ble Apex Court in the case of Director, Fisheries Terminal Department (supra) which has been relied upon by respondent is concerned, in the said case directions were issued to the employer/ Director, Fisheries Terminal Department to produce the complete records and muster roll of the respondent/workman but the said order was not challenged by the employer/Director, i.e. Fisheries Terminal Department but herein case the order by which direction has been issued to the petitioner/employer to submit the attendance and month-wise wages register of all the employees for the period from 1994 till December, 2006 and also the attendence and wages registeres for preceding one year alongwith all the documents related to the service period of the respondent prior to 31.07.2021, has been challenged in the present case. Hence, the said judgment is not applicable in the present case.
14. In view of above, this Court is of the considered opinion that learned Labour Court has committed illegality in passing the orders dated Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:19451 12 MP-4368-2024 15.03.2024 and 03.05.2024 (Annexure P/1 and P/2). Consequently, the present petition is allowed. The orders dated dated 15.03.2024 so far as it relates to calling the entire recod of petitioner from 1994 till December, 2006 and 03.05.2024 (Annexure P/1 and P/2) are hereby set-aside.
(MILIND RAMESH PHADKE) JUDGE ojha Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 26-11-2024 12:28:00 PM