Ganesh Soni vs The Assistant Engineer (Nc)
2021 Latest Caselaw 7765 MP

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THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
                   AT JABALPUR

                             (DIVISION BENCH)
                            W.A. No. 1274 of 2020

             Ganesh Soni                                           ....Appellant

                                       -Versus-

             The Assistant Engineer & Anr.                        ....Respondents

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      Coram :
              Hon'ble Mr. Justice Ravi Malimath, Chief Justice.
              Hon'ble Mr. Justice Vijay Kumar Shukla, Judge.
      ---------------------------------------------------------------------------------
      Presence :

             Shri Sanjay Kumar Verma, Advocate for the appellant.

      ---------------------------------------------------------------------------------

                               JUDGMENT

(24/11/2021)

Per : Vijay Kumar Shukla, J.

The present intra court appeal has been filed under Section 2(1) of

the Madhya Pradesh Uchha Nyalayay (Khand Nyaypeeth Ko Appeal)

Adhiniyam, 2005 being aggrieved by the order dated 03.03.2020 passed

in W.P. No.1155/2016 by the learned Single Judge dismissing the writ

petition filed by the petitioner. The petitioner filed a writ petition being

aggrieved by the award dated 19.07.2006 passed by the CGIT, Jabalpur

on a reference on the following issue :-

"Whether the action of the management of Central Railway, Bhopal in terminating the the service of Shri Ganesh Harishankar Soni is justified ? If not what relief he is entitled to ?"

2. The Tribunal recorded satisfaction that the petitioner/workman

despite having worked for more than 240 days in a calendar year since

has been visited with penalty of termination of employment otherwise

than by way of disciplinary action but since not paid retrenchment

compensation, therefore, the same tantamounts to an illegal

retrenchment. Accordingly, the Tribunal has ordered for reinstatement,

however, without back wages.

3. The appellant/petitioner challenged the said impugned order so far

it relates to denial of the back wages. So far the findings regarding the

illegal retrenchment is concerned, the same was affirmed by the Single

Bench holding that the Tribunal upon evaluation of evidence placed on

record has reached to the conclusion that the allegation of procurement of

employment on false service card was not established. The

petitioner/workman was found to have continued in service since 1980

till 1986 and worked for 240 days in a calendar year as contemplated

under Section 25(B) of the Industrial Disputes Act. Therefore, the

termination otherwise than by way of disciplinary action shall tantamount

to retrenchment and it terms to be illegal for want of payment of

retrenchment compensation under Section 25(F) of the Industrial

Disputes Act.

4. Learned counsel for the appellant submitted that the retrenchment

of the appellant would come under the Clause 25(N) of the Industrial

Disputes Act and therefore, he was entitled automatically for back wages

as a consequence.

5. We do not find any merit in the aforesaid contention.

6. The termination of the appellant from services has been found to

be in violation of Section 25(F) of the Industrial Disputes Act and the

Tribunal in para-12 of its award has declined to grant back wages on the

ground that the workman has not pleaded and proved that he was not

gainfully employed anywhere.

7. We do not find any illegality in the award passed by the CGIT,

Jabalpur and also the order passed by the learned Single Judge.

8. The Supreme Court in the case of Rajasthan State Road

Transport Corporation, Jaipur vs. Shri Phool Chand (Dead) through

L.Rs. (Civil Appeal No.1756/2010) decided on 20.9.2018 has laid down

that "it is necessary for the workman in such cases to plead and prove

with the aid of evidence that after his dismissal from the service, he was

not gainfully employed elsewhere and has no earning to maintain himself

or/and his family."

9. In view of the aforesaid, no interference is called for.

10. The writ appeal is dismissed. No order as to costs.

11. Pending interlocutory applications, if any, are also disposed off.

         (RAVI MALIMATH)                     (VIJAY KUMAR SHUKLA)
          CHIEF JUSTICE                              JUDGE

PK

      Digitally signed
      by PARITOSH
      KUMAR
      Date: 2021.11.30
      17:08:58 +05'30'