Madhya Pradesh High Court
Managing Director vs K.S. Sen on 8 December, 2021
Author: Vivek Agarwal
1 WP-10889-2015
The High Court Of Madhya Pradesh
WP-10889-2015
(MANAGING DIRECTOR Vs K.S. SEN)
WP No.10889/2015
(MANAGING DIRECTORS & OTHERS Vs. K.S.SEN)
Jabalpur, Dated : 08-12-2021
Shri Rajneesh Gupta, learned counsel for the petitioner in Writ
Petition No.4877/2015 and learned counsel for the respondent in
Writ Petition No.10889/2015.
Shri Ankit Saxena, learned counsel for the respondents in Writ
Petition No.4877/2015 and learned counsel for the petitioners in
Writ Petition No.10889/2015.
All these writ petitions have been filed respectively by the
employer & employee challenging order dated 11.3.2015 passed by
the Appellate Authority under the Shops & Establishments Act, 1958
whereby the Appellate Authority has ordered for reinstatement of the
employee with 50% back wages.
The bone of contention raised by the employee is that he is
entitled to cent percent back wages and denial of remaining 50% back
wages be declared to be illegal & a writ be issued directing his
reinstatement with cent percent back wages.
Respondent/Managing Director of Bata India Limited has
questioned the said order on the ground of grant of back wages and
also reinstatement suggesting that since the employee has failed to
prove any order of termination being passed on 14.12.2013 and also
failed to demonstrate through any cogent evidence that he was not
gainfully employed, therefore, the employee is neither entitled for
back wages nor reinstatement when employee/workman was willfully
abstaining from work.
Signature Not Verified
SAN
Digitally signed by AMIT JAIN
Date: 2021.12.14 19:06:11 IST
2 WP-10889-2015
Brief facts leading to filing of the present writ petitions are that
employee was interviewed by employer in the year 1998 and was
appointed as Cashier. He was posted at Gwalior with effect from
8.8.2012 and continued to work there till 3.12.2013. During this
period, he was on E.S.I. Leave from 20.11.2013 to 3.12.2013 and
when he approached the employer at Gwalior on 4.12.2013 alongwith
a certificate of fitness, the Branch Manager at Gwalior did not permit
him to join and orally he was informed to report at New Market, Rang
Mahal Showroom at Bhopal. The employee had approached New
Market, Rang Mahal Showroom at Bhopal but the Showroom
Manager at Bhopal did not accept his joining and asked him to work
till orders are formally received from the Headquarters. According to
the employee, he continued to work at New Market, Rang Mahal
Showroom at Bhopal till 14.12.2013 when orally he was informed
that his services are not required.
Employee's case is that he worked in the respondent/Institution
for a long duration but without following any procedure, without
affording him retrenchment compensation and also without carrying
out any inquiry, his services have been dispensed with by adopting the
policy of "Hire & Fire", which is illegal. It is further alleged that even
the principle of "First Come Last Go" was also not followed
rendering him unemployed. On said premise, the appeal was filed by
the employee under the provisions of Section 58 of the Shops &
Establishment Act, 1958.
Shri Rajneesh Gupta, learned counsel for the employee has
placed reliance on the judgment of the Supreme Court in the case of
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Deepali Gundu Surwase versus Kranti Junior Adhyapak
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3 WP-10889-2015
Mahavidyalaya (D.ED) & Others (2013) 10 SCC 324.
Shri Ankit Saxena, learned counsel for employer/Bata India
Limited, on the other hand, submits that conduct of employee was not
proper. He was a habitual absentee, as a result of which, he was
issued warning to improve his attendance in the shop failing which it
was informed that employer will be compelled to initiate necessary
action against him as per rules. It is also submitted that employee was
absent for 23 days till year and week 28/2013 when notice dated
8.8.2013 was issued. Thereafter, he was informed vide
communication dated 30.9.2013 that he was absent from duty for 63
days till week 35 of 2013 causing many problems in the smooth
functioning and day-to-day administration of shop. He was warned
for a second time with a hope that he will take measures to improve
his attendance in the shop failing which the authority will be
compelled to take appropriate disciplinary action against him, a show
cause notice was again issued to him on 25.10.2013, then on
25.11.2013 and finally on 26th February, 2014.
It is submitted that it is a case of the employee, who had stopped
coming to the office when he was issued a show cause notice for
unauthorized absenteeism on 26.2.2014 informing him about 117
days of his absence from 15.7.2013 to 12.1.2014 asking him to show
cause as to why disciplinary action be not taken against him for the
aforesaid serious breach of discipline. It is submitted that employee
had sent a communication dated 28.10.2013 informing the employer
that he was sick for a period week from 35 of 2013 to week 43 of
2013 and as he was not having any leave, he was taking rest as per
advise of the doctors to improve his illness. It is further submitted
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that employee never furnished any reply to the notice dated
22.11.2013 & notice dated 26.2.2014 and with a view to circumvent
any disciplinary action framed a story of his illegal retrenchment
seeking reinstatement.
After hearing learned counsel for the parties and going through
record, it is evident that Assistant Labour Commissioner, Bhopal
under the Shops & Establishments Act, 1958 has directed
reinstatement of employee vide impugned order dated 11.3.2015
directing reinstatement with effect from 14.12.2013 with 50% back
wages. The fact of the matter is that there is no documentary evidence
on record to substantiate the claim of the employee that he was either
asked at Gwalior to report at Bhopal or he ever reported at Bhopal.
The Appellate Authority has shifted complete burden on the shoulders
of employer saying that employer had examined Shri Manoj Dubey
but did not examine the Manager, Rang Mahal Show Room at Bhopal
& one at Gwalior. The Appellate Authority observed that no delivery
report was produced in regard to communication dated 26.2.2014.
The Appellate Authority also observed that this witness in cross-
examination admitted that number of days for which employee was on
medical leave can be verified by Showroom Manager at Gwalior. The
Appellate Authority further observed and has drawn adverse
inference on the basis of not examining Showroom Manager at
Gwalior & Bhopal so also for not producing delivery report of the
letters.
However, fact of the matter is that reply to the appeal was
furnished by the employer and thereafter the employee had filed his
affidavit dated 19.5.2014 under Order XVIII Rule 4 of the Code of
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Civil Procedure, 1908 (for brevity "C.P.C"). He has not denied
receiving any of the notices as have been enclosed by the employer
alongwith its reply to the appeal, therefore, there was no occasion for
the learned Appellate Authority to draw any adverse inference against
the employer on the basis of employer not furnishing proof of
delivery.
Infact in further cross-examination of the witness as was carried
out on 5.6.2014, he admitted that he has not produced any record in
regard to sanction of E.S.I.Leave. He admitted that he did not produce
any record giving his joining at Rang Mahal Showroom at Bhopal. He
admitted that he did not take any receipt for his joining at Rang Mahal
Showroom at Bhopal. He only denied having received
communication dated 26.2.2014 saying that he was not residing at
Vidisha in February, 2014 but he was residing at Bhopal in February,
2014. He also denied receiving any show cause notice dated
22.11.2013 but admitted receipt of notice dated 25.10.2013 and
admitted that he had furnished reply to the said notice but had not
enclosed it alongwith his memo of appeal.
In this backdrop, when facts of the case are re-examined then
there are certain glaring irregularities in the impugned appellate order,
mainly the Appellate Authority presumed on the basis of conjectures
& surmises that if employee had given any joining at Rang Mahal
Showroom at Bhopal then the employer has no record of it. Similarly,
it drew a presumption that if employee was misconducting himself
then why disciplinary action was not taken against him. The learned
Appellate Authority drew adverse inference for not examining the
Showroom Manager of Bhopal & Gwalior whereas onus was on the
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employee to have demonstrated that he had given his joining at
Bhopal as has been mentioned by him in Paragraph No.6 of his
affidavit under Order XVIII Rule 4 of the C.P.C. Infact in the
aforesaid affidavit under Order XVIII Rule 4 of the C.P.C, the
employee categorically mentioend that he had given his written
presnce at Rang Mahal Showroom on 16.12.2013 and had started
working accordingly whereas in Paragraph No.4 of his appeal memo,
he had given his attendance at New Market Rang Mahal Showroom at
Bhopal but Rang Mahal Showroom Manager at Bhopal had not
accepted his joining and had informed him that as per instructions
from the Headquarters, his name will be included in the register. He
has further averred in Paragraph No.4 of the memo of appeal that he
was working at Bhopal as per instructions of the Branch Manager
when on 14.12.2013, he was orally informed about instructions
received from the Headquarters to not to take work from him. This is
contrary to the averments made in Paragraph No.6 of the affidavit and
this fact has been overlooked by the learned Appellate Authority.
There is no denial of the employee that his permanent address is not
of Vidisha where copy of notice dated 26.2.2014 was sent. Infact the
notice dated 26.2.2014 is addressed to the employee showing him to
be salesman at Gwalior Bazar, Gwalior bearing Shop No.559/02145
and copy was sent to him on his permanent address at Shamshabad,
District Vidisha. Infact onus was on the employee to have proved that
his permanent address as mentioned in the office record is not of
Shamshabad, District Vidisha but is of Bhopal and he had notified
this change of address to the employer.
There is another lacuna in the document and testimony of the
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employee and it appears that since Bhopal is closer to Vidisha with a
view to attract territorial jurisdiction of authorities at Bhopal, he
framed a story of his oral relieving from Gwalior and joining at
Bhopal and thereafter termination of his services from Bhopal
through an oral order dated 14.12.2013. Infact, fact of the matter is
that once the employee had received notice at Gwalior and had filed
reply to the same as is contained in Annexure-9, a fact which has been
acknowledged by him in his cross-examination though he has cleverly
suppressed this fact while filing of his appeal then receipt of other
notices could not have been subject matter of speculation as has been
sought to be made by the learned Appellate Authority. Issuance of
show cause notice and asking the employee to join only reflects that
with a view to get his unauthorized absenteeism, the employee filed
an appeal and the learned Appellate Authority without adverting to all
these facts has allowed reinstatement with back wages. The employee
has though mentioned in his affidavit that he has been rendered
unemployed but in his affidavit under Order XVIII Rule 4 of the
C.P.C, he has changed the version from one which was mentioned in
Paragraph No.8 of the appeal. In Paragraph No.8 of the appeal, he
mentioned that he has been rendered unemployed and despite looking
for employment, he has not been able to get any employment whereas
in Paragraph No.9 of the affidavit, the employee has omitted to
mention that he is not gainfully employed.
When all these facts are tested in the light of the law laid down
by the Supreme Court in the case of Deepali Gundu Surwase versus
Kranti Junior Adhyapak Mahavidyalaya (D.ED) & Others
(supra), it is evident that firstly the employee has failed to prove his
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8 WP-10889-2015
removal/retrenchment. Secondly, he has failed to prove his absence on
medical grounds by furnishing appropriate certificate from
E.S.I.Leave as has been admitted by him in his cross-examination.
Thirdly, he has failed to give explanation that why he had not given
reply to the notice dated 8.8.2013 & 30.9.2013, receipt of which has
not been denied by him. Fourthly in absence of the employee
contradicting his permanent address, there could not have been an
automatic presumption of not receiving notice for reporting for work
and show cause notice for unauthorized absenteeism as has been
made by the learned Appellate Authority.
On the basis of appreciation of evidence available on record and
the facts & circumstances of the case, I am of the opinion that the
finding of removal/dispensation of service being not based on any
cogent material on record and failure of the employee to adduce
evidence of any independent person in his support that he had reported
for work at Bhopal or he was asked by the Showroom Manager at
Gwalior to report for work at Bhopal, no presumption could have
been drawn of his termination from Bhopal. Therefore, there is no
question of any reinstatement inasmuch as the witness of employer
admitted that services of the employee were never dispensed with,
therefore, by implication, the employee continued to be an employee
of Bata India Limited and the only direction, which can be given to
the employer, is to permit him to join at Gwalior and regularize his
period of absence as per permissible rules & regulations of the
employer in this behalf. Therefore, the impugned order dated
11.3.2015 passed by the Assistant Labour Commissioner, Bhopal
needs to be modified and is accordingly modified to the above extent.
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Date: 2021.12.14 19:06:11 IST
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It is held that employee K.S.Sen is entitled to continue in the
employment as admittedly there is no order of termination with a
further liberty to the employer to regularize his period of absence in
accordance with the Leave Rules of the employer.
In above terms, Writ Petition No.4877/2015 filed by
employee/K.S.Sen is dismissed as not maintainable and Writ Petition
No.10889/2015 filed by employer/Bata India Limited is allowed.
(VIVEK AGARWAL)
JUDGE
amit
Signature Not Verified
SAN
Digitally signed by AMIT JAIN
Date: 2021.12.14 19:06:11 IST
