Madhya Pradesh High Court
Ram Swaroop Vishwakarma vs Presiding Officer, Labour Court, ... on 15 June, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No. 4847/2001
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 15th OF JUNE, 2023
WRIT PETITION No. 4847 of 2001
BETWEEN:-
RAM SWAROOP VISHWAKARMA, S/O SHRI
BALLU RAM, R/O 55/1, SOUTH T.T. NAGAR,
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHOK SHRIVASTAVA- ADVOCATE)
AND
1. PRESIDING OFFICER, LABOUR COURT,
NO.-1, BHOPAL (MADHYA PRADESH)
2. REGISTRAR, FARMS AND SANSTHAN,
PURANA SACHIWALAYA, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(NONE)
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This petition coming on for hearing this day, the court passed the
following:
2 W.P. No. 4847/2001
ORDER
This petition under Article 227 of the Constitution of India has been filed against the order dated 25.05.2001 passed by the Presiding Officer, Labour Court No.-I, Bhopal in Case No. 27/97 I.D. Reference.
2. The facts necessary for disposal of the present petition, in short, are that the petitioner raised a dispute under Section 10 of Industrial Disputes Act on the ground that on 01.06.1991 the petitioner was employed by the respondent No. 2 on the post of Waterman on the monthly Honorarium/Salary of Rs.900/-. The petitioner worked up to 21.05.1995 and thereafter, his services were discontinued. The reference was made under Section 14 of the Industrial Disputes Act. The petitioner submitted his statements of his claim before the Labour Court. According to which the petitioner had worked w.e.f. 30.07.1990 to 31.01.1995 on the post of Waterman on the monthly salary of Rs.900/-. The petitioner had worked continuously and his services were discontinued by order dated 31.07.1995 passed in Order No. F.2860/94. The discontinuation of the services of the petitioner was in violation of Section 25 (F) of Industrial Disputes Act. No retrenchment compensation was paid. Further, it was claimed that the respondents have violated the principle of first come last go and thus, it was claimed that the discontinuation of services of the petitioner was contrary to the law.
3. The respondents filed their written statement and claimed that the provisions of Industrial Disputes Act was not applicable. The petitioner was appointed only for a period of 60 days and his appointment was not against any sanctioned/vacant post. The petitioner was given appointment for a period of 89 days with regular breaks. It was denied 3 W.P. No. 4847/2001 that the petitioner was entitled for retrenchment compensation. It was further claimed that the Scrutiny Committee had submitted its recommendation dated 21.12.1994, according to which the appointment of the petitioner was not in accordance with law, therefore, his services were discontinued w.e.f. 31.01.1995. It appears that thereafter the respondent No. 2 was proceeded ex parte and neither any document was filed nor any witness was examined by the respondent No. 2.
4. The Labour Court after considering the evidence led by the petitioner, dismissed his statement of claims on the ground that the petitioner has failed to prove that he was in a continuous service and the petitioner has not examined any officer or colleagues in this regard.
5. Challenging the order passed by the Labour Court, it is submitted by the counsel for the petitioner that all the documents were with the respondent No. 2. The respondent No. 2 had admitted that the petitioner was employed but their case was that he was employed for a period of 89 days with regular breaks. No document whatsoever was filed by the respondents. Thus, it is clear that in absence of any rebuttal to the evidence led by the petitioner, the Labour Court should not have rejected the claim of the petitioner.
6. To buttress his contention the counsel for the petitioner has also relied upon the judgment passed by this Court in the case of Rupendra Joshi Vs. Municipal Corporation, Gwalior, reported in AIR Online 2021 MP118.
7. Heard learned counsel for the petitioner.
8. The undisputed fact is that respondent No. 2 in its written statement had admitted that the petitioner was employed on the post of Waterman but its contention was that he was employed for 89 days with 4 W.P. No. 4847/2001 regular breaks. Thus, the only question for consideration that whether the petitioner had worked continuously for 240 days in the calendar period or not?
9. This Court in the case of Nagar Palik Nigam Sagar Vs. Sachin Sharma decided on 30th of January, 2023 in M.P. No. 204/2020 has held as under:-
"So far as the finding given by the Court below that the termination of the respondent was illegal on account of non-payment of retrenchment compensation is concerned, the petitioner being the employer was in possession of every document to show that the respondent had not worked for more than 240 days. Admittedly, the petitioner did not bring any evidence on record to rebut the claim of the respondent that he has worked for more than 240 days. It is well established principle of law that if a party is in possession of best evidence and fails to produce the same, then an adverse inference can be drawn. Under these circumstances, this Court is of the considered opinion that the Court below did not commit any mistake by holding that the respondent has worked for more than 240 days."
10. Since, the respondent No. 2 was in possession of all the documents and did not choose to file the same before the Court, therefore, this Court has every right to draw an adverse inference. It is true that the petitioner did not move an application for production of the documents but still it would not absolve the respondent No. 2 for rebutting the claim of the petitioner specifically when it was already admitted by the respondent No. 2 that the petitioner was employed but claimed that his services were taken for 89 days with multiple breaks. Thus, the only question for consideration is as to whether there was any break between two orders of employment for 89 days or not?
5 W.P. No. 4847/200111. It is the case of the petitioner that he had worked continuously and thus the respondents could have very well proved by producing the documents and examining the witnesses that he had not worked continuously for 240 days. Therefore, this Court is of the considered opinion that after having admitted that the petitioner was employed by the respondent No. 2 as well as the respondent No. 2 is in possession of the best evidence and having failed to do so, the Court below should not have non-suited the petitioner. Thus, it is held that the petitioner has successfully established that he had worked for 240 days continuously in the calendar year.
12. Now the only question for consideration is as to whether the petitioner can be directed for reinstatement or not?
13. It is the case of the petitioner that he was appointed on 30.07.1990 and continued till 31.01.1995. 28 long years have passed after the discontinuation of the services of the petitioner.
14. The Supreme Court in the case of Nagar Palika Nigam (supra) has held as under:-
"7. So far as the question of reinstatement with back wages with compensation of 10% amount is concerned, the Supreme Court in the case of Bharat Sanchar Nigam Limited Vs.Bhurumal, reported in (2014) 7 SCC 177 has held as under:-
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when 6 W.P. No. 4847/2001 it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious."
8. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017)11 SCC 244 has upheld the grant of compensation in lieu of reinstatement as the respondent had merely worked for a period of one year.
9. The Supreme Court in the case of Hari Nandan Prasad Vs. Food Corporation of India, reported in (2014) 7 SCC 190 has held as under:-
''19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement: (BSNL case, SCC pp. 187-88, paras 29-30) "29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many 7 W.P. No. 4847/2001 years ago, the recent trend was to grant compensation in lieu of reinstatement.
30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4) '2. Should an order of reinstatement automatically follow in a case where the engagement of a daily-wager has been brought to an end in violation of Section 25-
F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows: (Jagbir Singh case, SCC pp. 330 & 335, paras 7 &
14) "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the 8 W.P. No. 4847/2001 termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
***
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily-wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily-wager who does not hold a post and a permanent employee."
4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, wherein this Court stated: (SCC p. 777, para 11)
11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily-wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.'"
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21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, Appellant 1 would not be entitled to reinstatement...........'' 9 W.P. No. 4847/2001
10. The Supreme Court in the case of O.P.Bhandari Vs. Indian Tourism Development Corporation Limited and others (1986) 4 SCC 337 has held as under :-
"6. Time is now ripe to turn to the next question as to whether it is obligatory to direct reinstatement when the concerned regulation is found to be void. In the sphere of employer-employee relations in public sector undertakings, to which Article 12 of the Constitution of India is attracted, it cannot be posited that reinstatement must invariably follow as a consequence of holding that an order of termination of service of an employee is void. No doubt in regard to "blue collar" workmen and "white collar" employees other than those belonging to the managerial or similar high level cadre, reinstatement would be a rule, and compensation in lieu thereof a rare exception. Insofar as the high level managerial cadre is concerned, the matter deserves to be viewed from an altogether different perspective -- a larger perspective which must take into account the demands of National Interest and the resultant compulsion to ensure the success of the public sector in its competitive co-existence with the private sector. The public sector can never fulfil its life aim or successfully vie with the private sector if it is not managed by capable and efficient personnel with unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of the "policy-makers" of such undertakings. Then and then only can the public sector undertaking achieve the goals of 10 W.P. No. 4847/2001 (1) maximum production for the benefit of the community, (2) social justice for workers, consumers and the people, and (3) reasonable return on the public funds invested in the undertaking.
7. It is in public interest that such undertakings or their Boards of Directors are not compelled and obliged to entrust their managements to personnel in whom, on reasonable grounds, they have no trust or faith and with whom they are in a bona fide manner unable to function harmoniously as a team working arm-in-
arm with success in the aforesaid three- dimensional sense as their common goal. These factors have to be taken into account by the court at the time of passing the consequential order, for the court has full discretion in the matter of granting relief, and the court can sculpture the relief to suit the needs of the matter at hand. The court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the court."
11. So far as the judgment relied upon by the counsel for the respondent in the case of Jeetubha Khansangji Jadeja (supra) is concerned, in the said case the juniors were retained. However in the present case, it is not the case of the respondent that any junior was retained. Therefore, the law laid down by the Supreme Court in the case of Bhurumal (supra) would apply. Even otherwise, the termination of the respondent was held to be illegal on account of non-payment of retrenchment 11 W.P. No. 4847/2001 compensation. Even after reinstatement of the respondent, the petitioner can again terminate his services after making payment of retrenchment compensation. Therefore, this Court is of the considered opinion that the Court below should have directed for payment of monetary compensation in lieu of reinstatement."
15. This Court in the case of Rupendra Joshi (supra) has held as under:-
"Thus, it is clear that, where the employee has failed to prove that his appointment was legal and was not illegal, then this Court cannot perpetuate the illegality by directing the reinstatement of the petitioner. So far as the question of payment of compensation in lieu of reinstatement is concerned, no fault can be found with the direction of the Labour Court. Admittedly, the petitioner has worked for less than a year. His initial appointment was not in accordance with law. Under these circumstances, directing for reinstatement would be nothing but would be perpetuating the illegality, which cannot be done. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017) 11 SCC 244 :
(AIR 2017 SC 335) has upheld the grant of compensation in lieu of reinstatement as the respondent had merely worked for a period of one year."
16. Under these circumstances, it is held that since the services of the petitioner were terminated without making payment of retrenchment compensation, therefore, the termination of services of the petitioner was bad in law. However, 28 long years have passed after the termination of the services of the petitioner, therefore, no useful purpose would be served by directing for reinstatement.
12 W.P. No. 4847/200117. Since, the services of the petitioner were terminated in the year 1995, therefore, it is directed that the petitioner shall be entitled for a compensation of Rs.25,000/- in lieu of the reinstatement.
18. Ex-consequenci, the order dated 25.05.2001 passed by Presiding Officer, Labour Court No.-1, Bhopal in case No. 27/97 I.D. Reference is hereby set aside.
19. It is held that the termination of the services of the petitioner was bad-in-law on account of non-payment of retrenchment compensation. However, in lieu of the reinstatement, the petitioner is held to be entitled for compensation of Rs.25,000/- payable by the respondent No. 2 within a period of two months from today.
20. With aforesaid observation, the petition is allowed.
21. No order as to costs.
(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.06.22 18:27:27 +05'30'