Madhya Pradesh High Court
Municipal Corporation Gwalior Thr. vs Surendra Singh Yadav on 5 April, 2019
THE HIGH COURT OF MADHYA PRADESH
WA.559.2019
[Municipal Corporation, Gwalior Vs. Surendra Singh Yadav]
1
Gwalior, Dated:- 05.04.2019
Shri Vivek Khedkar, learned counsel for the appellants.
Challenge is to an order dated 05.02.2019 passed in
WP.5359.2017.
The Writ Petition was directed against the award dated
07.03.2017 passed by Labour Court No.1. Gwalior in Case No.COC-
22/A/I.D.Act/2016 (Ref). The reference before Labour Court was
against the oral termination order dated 01.12.2012 which was
questioned on the ground that having been engaged in March, 2010
and having continuously worked for over 240 days without any break,
the termination of service without holding any enquiry and
establishing misconduct and without adhering to the mandatory
stipulations contained under Section 25F of Industrial Disputes Act,
1947 (for brevity "1947 Act") is illegal, void ab initio.
The Labour Court after considering the rival contentions and
the material evidence on record returned the findings that the
termination of workman without subjecting him to an enquiry and
without adhering to the stipulations contained in Section 25F(a) & (b)
of 1947 Act, held the retrenchment illegal; accordingly, directed for
reinstatement without backwages vide award dated 07.03.2017.
The appellant/management filed the writ petition on two counts;
firstly, that the finding that workman continuously, without any break
THE HIGH COURT OF MADHYA PRADESH
WA.559.2019
[Municipal Corporation, Gwalior Vs. Surendra Singh Yadav]
2
worked for 240 days by drawing adverse inference is bad, and
secondly, the Labour Court ought to have directed for compensation
instead of reinstatement.
Learned Single Judge vide impugned order negatived both these
contentions.
As regard to working period of the workman, learned single
Judge recorded the finding that it has been admitted by the
Corporation that the pass book of the workman shows payment of
salary on regular basis without any break.
"Considered the submissions made by the Counsel for the
Petitioner. In the present case, it is an admitted position that
the Corporation did not produce the documents pertaining
to the service period of the respondent. Thus, under these
circumstances, this Court is of the considered opinion, that the payment of compensation in lieu of reinstatement would not be sufficient.
It is further submitted by the Counsel for the petitioner, that mere failure on the part of the Corporation to produce the document would not be sufficient to draw an adverse inference against the employer. To buttress his contentions, the Counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of Bhavnagar Municipal Corporation and others Vs. Jadeja Govubha Chhanubha and another reported in (2014) 16 SCC 130. However, during arguments it was fairly conceded by the Counsel for the petitioner that in the case of Bhavnagar Municipal Corporation (Supra), no order was ever issued to produce the documents. Thus, the facts of the present case are distinguishable."
These findings as evident are in consonance with the findings recorded by Labour Court on the basis of material evidence on record.
THE HIGH COURT OF MADHYA PRADESH WA.559.2019 [Municipal Corporation, Gwalior Vs. Surendra Singh Yadav] 3 The Labour Court found:
^^9& mDr lk{; ls Li"V gS fd izFkei{k us bl izdj.k esa mldh lsok lekfIr dks bl vk/kkj ij fookfnr fd;k gS fd mlus f}rh;i{k laLFkku esa ekpZ 2010 ls fnukad 01&12&12 rd dk;Z fd;k gSA lsok lekfIr ds iwoZ 240 fnu ls vf/kd dk;Z fd;k fdUrq f}rh;i{k }kjk fcuk dksbZ oS/kkfud izfØ;k viuk, izFkei{k dh voS/k lsok lekfIr dh xbZ gS rFkk f}rh;i{k dk ;g vk/kkj gS fd izFkei{k nS-os-Hkks- deZpkjh Fkk mls 89&89 fnol ds fy, dk;Z ij j[kk tkrk FkkA ,sls nS-os-Hkks- deZpkjh ds fy, NVuh laca/kh izko/kkuksa dk ikyu fd;k tkuk vko';d ugha Fkk rFkk dksbZ vkjksi i= nsuk rFkk foHkkxh; tkap fd, tkus dk Hkh dksbZ izko/kku ugha Fkk fdUrq f}rh;i{k lk{kh dk dwV ijh{k.k ns[kk tk, rks dwV ijh{k.k esa f}rh;i{k lk{kh us ;g Li"V :i ls Lohdkj fd;k gS fd ;g lgh gS fd izFkei{k dks 89&89 fnu ds fy, ukSdjh esa j[ks tkus rFkk vof/k lekIr gksus ij gVk, tkus dk dksbZ vkns'k esjs }kjk izdj.k if=dk esa is'k ugha fd;k x;k gSA mDrkuqlkj ;g fopkj.kh; gS fd fuf'pr vof/k ds fy, fu;qfDr fd, tkus dk vk/kkj mlh n'kk esa ekU; fd, tkus ;ksX; gS tcfd fuf'pr vof/k dh fu;qfDr dk fyf[kr vkns'k fjdkMZ ij gS tks f}rh;i{k dh vksj ls izLrqr ugha fd;k x;k gS] vr% dsoy ekSf[kd dFku ds vk/kkj ij ;g izekf.kr ekus tkus ;ksX; ugha gS fd izFkei{k dh fu;qfDr 89 fnol ds fy, dh xbZ Fkh rFkk izdj.k esa ;g mYys[kuh; gS fd izFkei{k dh vksj ls tks nLrkosth izek.k izLrqr fd;k x;k gS mu nLrkostksa ds laca/k esa f}rh;i{k lk{kh us dwV ijh{k.k esa ;g Li"V :i ls Lohdkj fd;k gS fd gekjs ;gka enk[kyr foHkkx Hkh gksrk gS] ;g ckr lgh gS fd iz-ih-@1 gekjs enk[kyr vf/kdkjh dk i= gS] iz-ih-@2 gekjs fuxe ls izFkei{k ds deZpkjh Hkfo"; fuf/k dh tkudkjh gS] iz-ih-@3 izFkei{k dh deZpkjh Hkfo"; fuf/k dh iphZ gSA iz-ih-@1 ds nLrkost dks ns[kk tk, rks iz-ih-@1 dk i= Lo;a f}rh;i{k fuxe ds enk[kyr vf/kdkjh }kjk lgk;d Jek;qDr dks fy[kk x;k gS ftlesa ;g Li"V :i ls tkudkjh nh xbZ fd Jh lqjsUnz ;kno uxj fuxe ds Xokfy;j ds enk[kyr foHkkx esa o"kZ 2010 ls 2012 rd dk;Zjr FkkA mDr i= ls gh ;g Li"V gS fd izFkei{k us tks mldh lsok vof/k crkbZ gS ml lsok vof/k esa izFkei{k us f}rh;i{k fuxe esa dke fd;k gS rFkk ekpZ 2010 ls 01&12&12 rd dh vof/k esa izFkei{k dh lsok esa dksbZ czsd fn;k x;k gks ,slk dksbZ Li"V izek.k fjdkMZ ij ugha gS rFkk izdj.k esa ;g Hkh fopkj.kh; gS fd izFkei{k us mldh lsok ls lacaf/kr fjdkMZ f}rh;i{k ls U;k;ky; esa izLrqr djk, tkus gsrq fof/kor~ vkosnu izLrqr fd;k Fkk ftl ij mHk;i{k dh lquokbZ i'pkr~ f}rh;i{k dks U;k;ky; esa nLrkost izLrqr djus dk vkns'k fn;k x;k Fkk fdUrq izdj.k esa f}rh;i{k dh vksj ls dksbZ nLrkost izLrqr ugha fd, x, gS tcfd f}rh;i{k lk{kh us gh vius dwV ijh{k.k esa ;g Li"V :i ls Lohdkj fd;k gS fd ;g ckr lgh gS fd izFkei{k dh mifLFkfr ,oa osru dk fjdkMZ j[k tkrk gS] ;g ckr lgh gS fd izFkei{k dks osru mldh mifLFkfr ds vk/kkj ij gh fn;k tkrk Fkk] izFkei{k ds osru i=d esa gh mldh mifLFkfr ,oa vuqifLFkfr ntZ dh tkrh gS] ;g ckr lgh gS fd U;k;ky; ds vkns'k fnukad 20&10&16 ds ikyu esa pkgs x, nLrkost fuxe }kjk izdj.k if=dk esa is'k ugha fd, x, gSaA f}rh;i{k lk{kh ds mDr dFku ls gh ;g Li"V gS fd muds }kjk fjdkMZ miyC/k gksrs gq, Hkh U;k;ky; }kjk vkns'k fn, tkus ij Hkh izdj.k esa izFkei{k dh mifLFkfr o Hkqxrku dk fjdkMZ izLrqr THE HIGH COURT OF MADHYA PRADESH WA.559.2019 [Municipal Corporation, Gwalior Vs. Surendra Singh Yadav] 4 ugha fd;k x;k gS] ,slh fLFkfr esa U;k; n`"Vkar 2010 ¼1½ ,e-ih-,y-ts- 212 uohu flag HknkSfj;k fo:) LVsV vkWQ ,e-ih- esa izfrikfnr U;k;
fl)karks ds izdk'k esa f}rh;i{k ds fo:) foijhr fu"d"kZ fudkys tkus ;ksX; gSa rFkk iz-ih-@1 ds vuqlkj izFkei{k dk o"kZ 2010 ls 2012 rd dk;Zjr gksuk f}rh;i{k dh vksj ls Hkh Lohdkj fd;k x;k gS] vr% mijksDr lk{; ,oa foospu ds vuqlkj ;g izekf.kr gS fd izFkei{k us lsok lekfIr ds iwoZ ds o"kZ esa 240 fnu ls vf/kd dk;Z fd;k gSA^^ Evidently, the workman discharged his burden in establishing of having continuously worked for 240 days preceding his termination. The onus was, therefore, on the appellants/Management to have discharged the burden by producing cogent material evidence that the workman had not completed 240 days preceding the date of termination. In view whereof, the decision in "Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195]" and in "Manager, Reserve Bank of India, Bangalore Vs. S. Mani and others [(2005) 5 SCC 100]" is of no assistance to the appellants. This will be evident from the observation by their Lordships in paragraph 19 of the judgment in S. Mani and others (supra) that the workman had not discharged his initial burden that he completed 240 days. In the case at hand as noted supra the workman discharged his burden that he worked for 240 days. The first contention, therefore, fails.
The next contention is that the Labour Court ought to have granted compensation in lieu of reinstatement. Appellant has relied on the decisions in "Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195]", "Bhavnagar Municipal Corporation and others Vs. Jadeja Govubha Chhanubha and another [(2014) 16 THE HIGH COURT OF MADHYA PRADESH WA.559.2019 [Municipal Corporation, Gwalior Vs. Surendra Singh Yadav] 5 SCC 130]" "Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh [(2013) 5 SCC 136]", "Bharat Sanchar Nigam Limited Vs. Man Singh [(2012) 1 SCC 558]", "Bharat Sanchar Nigam Limited Vs. Bhurumal [(2014) 7 SCC 177]", "Bharat Sanchar Nigam Limited And others Vs. Kailash Narayan Sharma [(2014) 16 SCC 440]" to bring home submission that the compensation is a rule and the reinstatement is an exception.
Section 25F of the Act of 1947 envisages:-
"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 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. "
Dwelling on the aspect of clauses (a) and (b) being mandatory in nature, it is observed by learned Author in Principles of Statutory Interpretation:-
"Considerations of general inconvenience, which would THE HIGH COURT OF MADHYA PRADESH WA.559.2019 [Municipal Corporation, Gwalior Vs. Surendra Singh Yadav] 6 have resulted in holding these enactments mandatory, appear to have out-weighed the effect of the negative words in reaching the conclusion that they were in their true meaning merely directory. An interesting example, where negative words have been held to be directory, is furnished in the construction of section 25F of the Industrial Disputes Act, 1947, where compliance of clauses (c) has been held to be directory; although compliance of clauses (a) and (b) which are connected by the same negative words is understood as mandatory".
[Chapter V Synopsis 6 at page 448 14th Edition] Learned Author relied on the decisions in Bombay Union of Journalists Vs. State of Bombay [AIR 1964 SC 1617] and Krishna Bahadur Vs. Purna Theatre [(2004) 8 SCC 229].
In Bombay Union of Journalists (supra), it is held:-
"12. In this connection, there is one more consideration which is relevant. We have already seen the requirement of S. 25F(a). There is a proviso to S: 25F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause (a) of S. 25F, therefore, affords a safeguard in the interests of the retrenched employee; it requires the employer either to give him one month's notice or to pay him wages in lieu thereof before he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the time of retrenchment, compensation which shall be equivalent to 15 days' average pay for every completed year of service, or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one month's notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by clause (b). The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two THE HIGH COURT OF MADHYA PRADESH WA.559.2019 [Municipal Corporation, Gwalior Vs. Surendra Singh Yadav] 7 clauses, and so, there is every justification for making them conditions precedent. ...."
Similarly, in Krishna Bahadur (supra), it is held:-
"12. It is neither in doubt nor in dispute that the provision of Section 25-F(b) is imperative in character. The provision postulates the fulfillment of the following three conditions :
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu of such notice;
(ii) payment of compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(iii) notice to the appropriate Government in the prescribed manner.
13. The requirement to comply with the provision of Section 25-F(b) has been held to be mandatory before retrenchment of a workman is given effect to. In the event of any contravention of the said mandatory requirement, the retrenchment would be rendered void ab initio."
In view whereof, in case where there is a breach of provisions of Section 25-F(a) and Section 25-F(b) of 1947 Act, the reinstatement is a rule rather than an exception and a compensation in lieu of reinstatement can only be awarded in exceptional circumstances.
When the impugned order is tested on the anvil of above analysis, we do not perceive any illegality, as would warrant any indulgence.
Consequently, appeal fails and is dismissed. No cost.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
PAWAN
DHARKAR
2019.04.16
11:17:33
-07'00'