Madhya Pradesh High Court
The State Of Madhya Pradesh vs Arif Khan on 27 August, 2018
HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
Writ Petition No.3886 of 2017.
(State of M.P. and others v/s Aarif Khan s/o Jahoor Khan)
Indore, Dated : 27.08.2018:-
Shri Rahul Sethi, learned Government Advocate for
the petitioners/State.
Shri Dharmendra Chelawat, learned counsel for the
Respondent.
Heard on the question of admission.
O R D E R THE petitioners have filed the present petition being aggrieved by the order dated 30.07.2015 passed by the Labour Court, Bhopal in Case No.35/2012/ID Act and also against the order dated 22.04.2016 by which application under Order IX Rule 13 of the CPC has been rejected.
[2] The Respondent approached the Labour Court by way of reference made under Section 10 of the Industrial Disputes Act. According to the Respondent he was appointed in the year 2003 as a driver on daily wages and he continued up to July, 2012. By way of oral order his services has been terminated. After reference the case was registered by the Labour Court and notices were issued to the petitioners. The petitioners appeared through counsel and despite several opportunities when written-statement was not filed, the Labour Court closed the right of defence. Thereafter the Respondent examined himself and the witnesses and they were cross-examined by the present petitioners. After the evidence, the Labour Court passed the Award on 30.07.2015 of reinstatement without back wages in favour of the Respondent. Being aggrieved by the aforesaid award, the present petitioners filed an application under Order IX Rule 13 of the CPC seeking setting-aside the ex-parte award. It is important to mention here that the Labour Court did not pass the ex-parte award because the present petitioners participated in the said proceedings till final arguments and there is no specific order by which the petitioners were proceeded ex-parte. Only by order dated 29.09.2014 the right to file written-statement was closed and that order has not been challenged by the petitioner so far. The petitioners participated in the proceedings and the final award was passed. Therefore, there is no ex-parte award, hence question of filing application under Order IX Rule 13 of the CPC does not arise. The Labour Court has rightly rejected the application.
[3] By way of this petition, the petitioners have also assailed the award dated 30.07.2015 on merit. Shri Rahul Sethi, learned Government Advocate appearing for the petitioners submits that the Respondent was appointed by way of oral order and for which the prescribed procedure for appointment was not followed, therefore, in the light of the judgment passed by the Apex Court in the case of Secretary, State of Karnataka v/s Umadevi [(2006) 4 SCC 1] he is not entitled for reinstatement into the service.
[4] Shri Dharmendra Chelawat, learned counsel appearing for the Respondent argued in support of the award by submitting that before termination, the provisions of Section 25-F of the Act were not followed, therefore, the Labour Court has rightly awarded reinstatement.
[5] The Respondent raised an industrial dispute being aggrieved by his termination from service. According to the Respondent he was appointed in the year 2003 against the vacant post of the driver and he worked up to July, 2012 and before termination no show-cause notice, charge-sheet and warning letters were issued to him. In rebuttal the petitioners did not file either documentary or oral evidence. The Respondent got exhibited as many as 12 documents by which he was posted time to time at various places and assigned the work of driver. Therefore, there is no dispute about the appointment of the Respondent and his working till July, 2012 in the establishment. Under the Industrial Disputes Act the Respondent is required to establish 240 continuous working in one calendar year which has been successfully established by the Respondent. Once 240 days in one calendar year has been established, then the liability cast on the employer to prove compliance of the provisions of Section 25-F of the Industrial Disputes Act. Admittedly before terminating the services of the Respondent, the provisions of Section 25-F were not followed. Therefore, the Labour Court has rightly set-aside the order of termination and directed for reinstatement. So far as the applicability of Uma Devi's case is concerned, it is for the regularization of the employee working on daily rated wages. By award dated 30.07.2015 the Labour Court has directed for reinstatement in the same capacity which was there at the time of termination of the Respondent. Hence, no interference is called for with the impugned order.
[6] The petition is accordingly dismissed.
No order as to costs.
[ VIVEK RUSIA ] JUDGE (AKS) Digitally signed by Anl Kumar Sharma Date: 2018.08.28 12:02:51 +05'30'