M P Warehousing And Logistic ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 5898 MP

                                                    01



IN THE HIGH COURT OF MADHYA PRADESH
            AT G WA L I O R
                        BEFORE
        HON'BLE SHRI JUSTICE ROHIT ARYA
                           &
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH

              ON THE 12th OF APRIL, 2023

           REVIEW PETITION No. 861 of 2022

BETWEEN:-
   M P WAREHOUSING AND LOGISTIC
   CORPORATION    THR.  MANAGING
1. DIRECTOR OFFICE COMPLEX BLOCK
   A    GAUTAM   NAGAR    (MADHYA
   PRADESH)
   THE CHAIRMAN WAREHOUSING AND
   M.P.   LOGISTIC    CORPORATION
2.
   OFFICE COMPLEX BLOCK A GAUTAM
   NAGAR, BHOPAL (MADHYA PRADESH)
                                      .....PETITIONERS
(BY SHRI P.S. BHADORIYA-ADVOCATE )

AND
   THE STATE OF MADHYA PRADESH
   PRINCIPAL SECRETARY VALLABH
1.
   BHAWAN       BHOPAL    (MADHYA
   PRADESH)
   LAL SINGH JAYANT S/O SHRI
   BARELAL JAYANT, AGED ABOUT 62
2. YEARS, B-12, NEW JIWAJI NAGAR,
   THATIPUR     GWALIOR   (MADHYA
   PRADESH)
                                                                   02

                                               .....RESPONDENTS
(BY SHRI VIVEK KHEDKAR-ADDITIONAL ADVOCATE GENERAL
FORRESPONDENT                            No.1/STATE)
(BY SHRI ANVESH JAIN-ADVOCATE FOR THE RESPONDENT
NO.2)
       This petition coming on for hearing this day, JUSTICE

ROHIT ARYA passed the following:

                             ORDER

This review petition by M.P. Warehousing Corporation is directed against the order dated 29.03.2022 passed in W.A. No.850/2021 (Lal Singh Jayant Vs. State of M.P. and Ors.) primarily on the ground that the coordinate Bench while entertaining the Writ Appeal did not issue notice and allowed the same on its first date granting substantive relief to respondent No.2 herein without affording opportunity of hearing to the review petitioners.

For ready reference, para 8 of the judgment dated 29.03.2022 (supra) is quoted below:-

"8. Resultantly, appeal of the appellant stands allowed and age of superannuation of appellant is also to be treated as 62 years. Since the appellant/petitioner was denied opportunity to work till 62 years of age whereas he ought to have been allowed because of amended Rule 13, therefore, he is entitled for back-wages while treating him in continuous service. Since appellant / petitioner was apparently likely to be superannuated in January, 2021, therefore, respondents are directed to treat the

appellant as reinstated forthwith and appellant shall be entitled for all service benefits by way of consequential benefits including monetary benefits / pensionary benefits accrued to him in accordance with law while treating him in continuous service up to 62 years of age."

2. Before adverting to the submissions advanced, it is expedient to reiterate relevant factual matrix giving rise to the instant review petition.

3. Petitioner employee/respondent No.2 herein while serving as Senior Assistant reached the age of superannuation of 60 years on 31.01.2019. He preferred a Writ Petition bearing W.P. No.9365/2019 on 3.05.2019 seeking benefit of the judgment rendered by the Writ Appellate Court order dated 15.11.2019 in bunch of writ appeals decided by the coordinate Bench (Hon'ble Shri Justice Sanjay Yadav, as he then was and Hon'ble Shri Justice Atul Sreedharan).

4. As a matter of fact, the Writ Appellate Court has confirmed the order passed by the Writ Court at Indore on 12.04.2019 in W.P. No.15691 of 2018, whereunder following relief was granted to the petitioner therein:-

"10. Consequently, writ petition is allowed. The impugned orders dated 21/06/2018 (Annexure P/5) sofar as it relates to petitioner and communication dated 31/07/2018 (Annexure P/8) retiring him at the age of 60 years are quashed.

In the back drop of the interim order dated 30/07/2018, it is held that the petitioner is entitled

for all service benefits inlcuding monetary benefits accrued to him on the post of Sub Engineer (Executive) treating him in continuous service upto 62 years of age."

5. It appears that W.P. No.9365/2019 filed by the respondent/employee was disposed of on 9.4.2021 with an innocuous order for reconsideration of his claim to further continue in service upto 62 years. It may be stated that respondent/employee had already attained the age of 62 years on 31.01.2021.

6. However, the respondent No.2 chose not to file application before the appellant for reconsideration of his claim pursuant to the said order, instead feeling dissatisfied with the said order, preferred Writ Appeal No.850/2021. The Writ Appellate Court without notice to respondents (petitioners herein), as stated above, granted substantive relief to the petitioner(respondent herein) as quoted above.

7. Shri P.S. Bhadoriya, learned counsel for the review petitioners submits that the respondent employee after having stood superannuated on 31.01.2019 upon attaining the age of superannuation i.e. 60 years ceased to be in employment. He has attained the age of 62 years on 31.01.2021. The writ petition for reconsideration of his claim was decided on 9.4.2021. During this period respondent employee has received the entire retiral dues and never moved any application before the review petitioners for his continuation upto the age of 62 years. However, the Writ

Appellate Court by the impugned order in para 8 (supra) has ordered that respondent shall be treated to have been in employment upto the age of 62 years and benefited him with back wages. If the review petitioners were noticed and afforded opportunity, the Writ Appellate Court could not have arrived at such a conclusion in the backdrop of the aforesaid facts and circumstances inasmuch as the relief of continuation in service upto 62 years could not have been granted, firstly, respondent employee demitted the office of Senior Assistant on 31.01.2019 and never moved any application for further continuation nor factually continued. Secondly, after he attained the age of 62 years on 31.01.2021, the Writ Court passed the order for reconsideration of his claim on 9.4.2021. Hence, the same was of no consequence. Thirdly, even otherwise, respondent employee cannot equate his case with that of the petitioner in W.P. No.15691/20418 as factual matrix of both the cases are distinct and distinguishable as well evident from the relief granted by the Writ Court as quoted above.

8. Under such circumstances, the relief for further continuation upto 62 years granted by the Writ Appellate Court was dehors the facts and by no stretch of imagination can be justified, therefore, prayer for review is made.

9. Per contra, Shri Jain, learned counsel for the respondent No.2/employee opposes the application with submission that once the order of the Writ Court dated 9.4.2021 passed in W.P. No.9365/2019, as confirmed in W.A. No.850/2021, and attained

finality with the dismissal of the SLP No.7325/2021, there is no reason or justification not to grant similar relief to the respondent employee on the touchstone of parity in the matter of age of retirement. Hence, no illegality can be attributed to the impugned order in that behalf. Further, even if no notice was issued to the review petitioners, this by itself would not vitiate the order under review as the same is in consonance with the order passed by the coordinate Bench in W.A. No.1088/2019. Besides, the respondent employee has suffered substantial monetary loss due to his forceful retirement at the age of 60 years.

10. Upon hearing counsel for the parties, we are of the considered view that the coordinate Bench indeed committed illegality having passed the impugned order with substantive relief to the respondent employee without even notice to the review petitioners and without affording opportunity to resist the claim on merits. For this reason, the impugned order cannot be sustained on the touchstone of concept of justice, equity and good conscience.

11. That apart, even on merits in W.P. No.15691/2018, the petitioner therein since was in service and protected by interim order against retirement at the age of 60 years. He has been granted the benefit of further continuation upto the age of 62 years with all consequential benefits, whereas in the instant case petitioner stood retired on 31.01.2019. He never moved any application for his further continuation in petitioners establishment. He has also received all retiral dues. Respondent

employee did not file any application before the petitioners establishment for reconsideration of his application as ordered on 9.4.2021. Instead, he preferred Writ Appeal No.850/2021, which stood decided vide order dated 29.03.2022 which is under review. Under such circumstances, respondent employee cannot claim the benefit of the order passed in W.A No.850/2021 which although stood confirmed with the order of the Supreme Court dismissing the SLP No.7325/2021.

12. Consequently, the review petition is allowed. The order under review dated 29.03.2022 passed in W.A. No.850/2021 is set aside.

            (ROHIT ARYA)               (SATYENDRA KUMAR SINGH)
                 JUDGE                          JUDGE


van

            VANDANA VERMA
            2023.04.17
            16:36:17 -07'00'