Madhya Pradesh High Court
Shree Baidyanath Ayurved Bhawan ... vs Shri Baidhnath Ayurvedik ... on 17 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 17 th OF APRIL, 2023
WRIT PETITION No. 9900 of 2019
BETWEEN:-
SHREE BAIDYANATH AYURVED BHAWAN PRIVATE
LIMITED THR. ITS MANAGER DR. RAJESH THAKRE S/O
SHRI RAMCHANDRA CHANDRA THAKRE AGED R/O
SHRI BAIDYANATH AYURVED BHAWAN PRIVATE
LIMITED BAMHANI POST GOPALGANJ, DISTRICT
SEONI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI BRIAN D'SILVA - SENIOR ADVOCATE ASSISTED BY SHRI
VRUSHAL BHIDE - ADVOCATE)
AND
SHRI BAIDHNATH AYURVEDIK KARMCHARI SANGH
BAMHANI THR. ITS REPRESENTATIVE NOKHELAL
CHANDRAVANSHI S/O SHRI GENDALAL
CHANDRAVANSHI AGED YEARS R/O VILLAGE
BAMHANI POST GOPALGANJ, DISTRICT SEONI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJAY VERMA - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This writ petition is filed by the petitioner-employer being aggrieved of
orders dated 30.05.2014 (Annexure P-12) passed in case No.1/M.P.I.R./200 by
the Labour Court, Jabalpur. Petitioner is also aggrieved of order dated
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Date: 2023.04.18 19:06:18 IST learned Industrial Court, Bench at Jabalpur, refusing to condone the delay and
entertain the appeal.
2. This writ petition is filed under Article 226 of the Constitution of India,
assailing orders of the Labour Court and the Industrial Court.
3. Shri Brian D'Silva, learned Senior Counsel appearing for the petitioner
submits that workmen were never employed by the petitioner. Initially 58
employees had filed an application under Section 31 of the Madhya Pradesh
Industrial Relations Act, 1960 (hereinafter referred to as the ''MPIR Act'')
seeking their permanent classification. This application was rejected on
15.01.2011. Against this order, workmen had approached the Industrial Court,
which remanded the matter to the Labour Court vide order dated 29.01.2014
(Annexure P-11). On 30.05.2014, learned Labour Court passed an order in
favour of the workmen.
4. Petitioner's contention is two folds. They had filed two interlocutory
applications before the Industrial Court bearing I.A. No.1 and I.A. No.4 in
which two different dates were mentioned in regard to service of notice for
execution of the award passed by the learned Labour Court on 30.05.2014. In
one application I.A. No.1, date is mentioned as 16.02.2018 but this I.A. was
sought to be withdrawn vide order I.A. No.4 in which date of knowledge is
mentioned as 13.02.2018. Copy of this second interlocutory application (I.A.
No.4) is filed by the respondent-workmen vide I.A. No.7580/2019 for taking
documents on record, as an application for grant of permission to withdraw
application filed for condonation of delay and another application for
condonation of delay.
5. This I.A. No.7580/2019 or its contents or the documents enclosed
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therewith have not been disputed by the petitioner.
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6. It is submitted that appeal was filed on 19.03.2018 and, therefore, the
Industrial Court should have condoned the delay in filing the appeal and should
have proceeded on its own merits.
7. It is further submitted that petitioner is a private company. No statutory
Recruitment Rules or any other Recruitment Rules are applicable to it. It is
admitted that no appointment orders are issued in favour of the employees.
They are only given joining. Workmen in whose favour award was passed by
the learned Labour Court on 30.05.2014 were given appointments on various
dates starting from 2010 to 2014. It is submitted that since they were employees
employed through contractor, they had no right to seek permanent
classification. It is further submitted that workmen were since not governed by
any statutory Recruitment Rules or any other Recruitment Rules, they had no
right to seek appointment and therefore, merely spending 240 days in an
organization was not sufficient to answer their claim for permanent
classification. It is also submitted that since there are no statutory Recruitment
Rules operating in the petitioner work place, workmen could not have sought
permanent classification.
8. Reliance is placed on the judgment of the Supreme Court in case of
R.M. Yellatti Vs. Assistant Executive Engineer, (2006) 1 SCC 106 ,
wherein reading para 17, it is submitted that drawing of adverse inference
ultimately would depend thereafter on the facts of each case. The above
decisions however make it clear that mere affidavits or self-serving statements
made by the claimant workman will not suffice in the matter of discharge of the
burden placed by law on the workman to prove that he had worked for 240
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days in a given year. The above judgments further lay down that mere non-
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production of muster rolls per se without any plea of suppression by the
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claimant workman will not be the ground for the Tribunal to draw an adverse
inference against the management.
9. Shri Brian D'Silva reading further and placing reliance on the judgment of
R.M. Yellatti (supra) submits that Supreme Court has also held that ''Lastly,
the above judgments lay down the basic principle, namely, that the High Court
under Article 226 of the Constitution will not interfere with the concurrent
findings of fact recorded by the Labour Court unless they are perverse. This
exercise will depend upon the facts of each case.''
10. Reliance is also placed on the judgment of the Supreme Court in case
o f C.N. Ramappa Gowda Vs. C.C. Chandregowda (Dead) by LRs. and
another, (2012) 5 SCC 265 , wherein reliance is placed on para 26 of the
judgment. Reading this, it is submitted that if the plaint itself indicates that there
are disputed questions of fact involved in the case arising from the plaint itself
giving rise to two versions, it would not be safe for the court to record an ex
parte judgment without directing the plaintiff to prove the facts so as to settle
the factual controversy. In that event, the ex parte judgment although may
appear to have decided the suit expeditiously, it ultimately gives rise to several
layers of appeal after appeal which ultimately compounds the delay in finally
disposing of the suit giving rise to multiplicity of proceedings which hardly
promotes the cause of speedy trial.
11. Placing reliance on this judgment, it is submitted that merely petitioner
herein was proceeded ex parte is not a sufficient circumstance to refuse to
condone the delay so also the ex parte proceedings.
12. Reliance is also placed on the judgment of the Supreme Court in case
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of Surendranagar Distt. Panchayat and another Vs. Gangaben Laljibhai
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and others, (2006) 9 SCC 132. Reading para 12 of this judgment, it is
submitted that in all cases the burden of proof lies on the workman to show that
he had worked continuously for 240 days for the preceding one year and it is
for the workman to adduce evidence apart from examining himself to prove the
factum of being in employment of the employer.
13. Reliance is also placed on the judgment of the Supreme Court in case
o f M.P. Housing Board and another Vs. Manoj Shrivastava, (2006) 2
SCC 702. Reading paragraphs 8, 13 and 16, it is submitted that a person with a
view to obtain the status of a permanent employee, must be appointed in terms
of the statutory rules.
14. It is further submitted that the Standing Orders governing the terms and
conditions of service must be read subject to the constitutional limitation
wherever applicable.
15. In para 16, relying on the judgment of the Supreme Court in State of
Uttar Pradesh Vs. Neeraj Awasthi, (2006) 1 SCC 667 , it is held that if the
appointments were made without following the procedure, or services of some
persons appointed have been regularized in past, in our opinion, cannot be said
to be a normal mode which must receive the seal of the court. Past practice is
not always the best practice. Thus, placing reliance on this judgment, it is
submitted that even if somebody was given benefit of regularization in the past
then, that will not entitle the workmen herein to claim the same benefit.
16. Reliance is also placed on the judgment of the Supreme Court in
Haryana Suraj Malting Limited Vs. Phool Chand, (2018) 16 SCC 567.
Reading para 37 of the judgment, it is submitted that merely because an award
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has become enforceable, does not necessarily mean that it has become binding.
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For an award to become binding, it should be passed in compliance with the
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principles of natural justice.
17. Shri Sanjay Verma, learned counsel appearing for the respondent-
Union, in his turn, submits that firstly this writ petition is not maintainable under
Section 226 of the Constitution because no writ can be issued against a private
individual. Since this writ petition is filed challenging the orders of the Labour
Court and the Industrial Court, respectively, it will be deemed to be a writ
petition under Article 227 of the Constitution of India. It is further submitted
that Section 3 of the Limitation Act, 1963, clearly provides that all suits, appeals
and applications will be subject to the law of limitation and they are required to
be dismissed unless for the provisions contained in Sections 4 to 24, sufficient
cause is shown for condonation of delay.
18. It is submitted that in the present case, sufficient cause is not reflected
for condonation of delay and in this behalf, impugned order passed by the
Industrial Court is read to point out that the Industrial Court starting from para 4
of its impugned order dated 14.03.2019 dealt with the chronology of conduct of
the petitioner. It has recorded that on 04.06.2009, in the original case of 2008,
order-sheet was recorded that despite service of notices to the respondent
therein, they were absent and therefore, ex parte proceedings were drawn
against them and case was fixed for the evidence of the workmen-Union on
04.08.2009.
19. It has also recorded a fact that on 15.11.2011, Labour Court had
dismissed the claim of the workmen against which workmen-Union had filed
appeal No.44/MPIR/2011. In that appeal also, in its order dated 29.01.2014
passed by the learned Industrial Court, in para 3 it was noted that non-applicant
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(employer) not only remained ex parte in the original case but remained absent
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despite service of notice in the appeal also. Thereafter, on remand, matter was
heard and decided by the Labour Court.
20. In appeal, contrary stand was taken by the employer. In one
application i.e. I.A. No.1, employer took a stand that service of notice was
made on it on 16.02.2018 and appeal was filed on 19.03.2018, whereas in
another application i.e. I.A. No.4 by which I.A. No.1 was sought to be
withdrawn, facts were canvassed that notice was received on 13.02.2018. Since
there is only a clerical person appointed at Seoni, who had no authority to
receive notices or take a decision, matter was transmitted to the Head office at
Nagpur from where necessary permission was received on 20.02.2018,
thereafter, certified copies, etc. were obtained and then appeal was filed on
19.03.2018.
21. Shri Sanjay Verma also submits that Fifth Schedule to the Industrial
Disputes Act, deals with ''Unfair Labour Practices''. This Fifth Schedule at
Entry 10 provides that to employ workman as 'badlis', casuals or temporaries
and to continue them as such for years, with the object of depriving them of the
status and privileges of permanent workmen, amounts to Unfair Labour
Practice.
22. Now the fact of the matter is that whether the learned Industrial Court
has acted in an arbitrary manner in rejecting the application for condonation of
delay or has acted bonafidely. To answer this query and without referring to the
unnecessary facts, I.A. No.4 being later in date and seeking to withdraw, I.A.
No.1, wherein date of service of notice was mentioned as 16.02.2018, whereas
the subsequent I.A. accepted date of receipt of notice as 13.02.2018, I.A. No.4
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is to be deemed to be correct and, therefore, merely saying that they took time
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to seek permission from the Head office and that was received on 20.02.2018,
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cannot be treated to be the starting point for limitation. Once the employer has a
office at Seoni and that office had admittedly received notice on 13.02.2018
seeking compliance of the order dated 30.05.2014 then the starting point for
limitation will be 13.02.2018 and time spent by them i.e. the employer for
seeking permission, etc. from the competent authority, cannot be condoned and
cannot be said to be the period for which condonation will be applicable
towards the filing of the appeal on 19.03.2018. Thus, in absence of there being
any explanation for delay from 13.02.2018, impugned order passed by the
learned Industrial Court, cannot be faulted with.
23. However, notwithstanding the aspect of limitation alone, the fact of the
matter is that on merits also Shri Sanjay Verma has pointed out that when the
affidavits were filed, certain documents were exhibited before the learned
Labour Court. These affidavits though have been termed to be ''Cyclostyled''
by Shri Brian D'Silva, learned Senior Advocate appearing for the petitioner-
employer but, it is evident that certain documents have been exhibited through
these affidavits.
24. Reading from affidavit of one Shri Devchand, it is pointed out that
Ex.P-1 is the attendance register maintained by the employer which was
exhibited, Ex.P-2 is the representation given by the office bearers of the Union,
Ex.P-3 was the representation which was given to Labour officers of
Chhindwara and Ex.P-4 was exhibited as the copy of the agreement between the
employer and the Union.
25. When these facts are examined in the light of the judgment cited by
learned Senior Counsel for the petitioner-employer, then it is evident that the
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ratio of law laid down by the Supreme Court in case of Haryana Suraj
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Malting Limited Vs. Phool Chand (supra), is that the principles of natural
justice should be followed. As understood by this Court, principles of natural
justice require that nobody should be condemned unheard. It is a matter of fact
which has come on record and which has not been rebutted by producing any
evidence contrary to the record that in the original case notices were served on
the employer as is mentioned by the learned Industrial Court in its order dated
14.03.2019, wherein it has categorically reproduced order-sheet dated
04.06.2009, wherein employer was proceeded ex parte. Thereafter, in appeal
also, learned Industrial Court recorded a finding that notices were sent for
service but despite service, non-applicant i.e. the employer, remained absent.
26. Thus, as far as principles of natural justice are concerned, they were
followed, notices were issued and were served. Merely saying that office at
Seoni is managed by a clerk and he has no managerial responsibility, is not
sufficient to deny service of notices on the employer. Once notices were served
and employer in its own wisdom chose not to appear before the Labour Court
and then before the Industrial Court, then it cannot be said that the award
passed by them became a nullity because principles of natural justice were
violated. In the opinion of this Court, principles of natural justice were followed
in full force and, therefore, this judgment in case of Haryana Suraj Malting
Limited Vs. Phool Chand (supra) will have no application to the facts of the
present case.
27. Ratio of law laid down by the Supreme Court in case of M.P.
Housing Board and another Vs. Manoj Shrivastava (supra) and
Surendranagar Distt. Panchayat and another Vs. Gangaben Laljibhai
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and others (supra) is to the effect that if an appointment is made dehors the
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statutory provisions then that appointment will not entitle the workman to claim
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permanent classification. However, in case of M.P. Housing Board and
another Vs. Manoj Shrivastava (supra) in para 13 while quoting from its
earlier judgment in Mahendra L. Jain Vs. Indore Development Authority,
(2005) 1 SCC 639, Hon'ble Supreme Court has held that Order 4 provides
that the manager shall within a period of six months, lay down the procedure for
recruitment of employees and notify it on the notice board on which Standing
Orders are exhibited and shall send copy thereof to the Labour Commissioner.
28. Though Shri Brian D'Silva submits that plea of unfair labour practice
was not raised before the Labour Court and, therefore, it cannot be raised now
but for the purpose of illustration, and not to settle any ratio of law against the
employer, since employer's case is that workmen herein who are beneficiaries of
the orders of the learned Labour Court and the Industrial Court were actually
contract labourers and they were admitted to be on the rolls of the company
from that of the contractor on various dates starting from 2010 to 2014 but the
fact of the matter is that their initial engagement as emphasized by them in the
year 2001 has not been disputed in whatever capacity that may be.
29. Thus, in absence of compliance of Order 4 of the Standing Orders
which mandates that the manager of the company should have within a period
of six months, lay down the procedure for recruitment of employees and notify
it on the notice board on which Standing Orders are exhibited and should have
send a copy to the Labour Commissioner, cannot be bypassed merely saying
that petitioner being a private employer, is free to act on its own whims and
fancies and decide when to hire an employee and when to fire him. Even in a
private company, though they may not have framed any rules for employment
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but statutory Standing Orders and the provisions contained in Labour
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jurisprudence, especially, the MPIR Act and Industrial Disputes Act are binding
and are required to be followed by the employer.
30. Thus, to this extent that in other judgments employer was a statutory
authority and that employer had statutory Recruitment Rules in its place and
those statutory rules were not followed while giving appointment, the ratio of
law laid down by the Supreme Court will not be applicable to the facts and
circumstances of the present case in view of the admission made by Shri Brain
D'Silva that there exists no statutory Recruitment Rules or any other
Recruitment Rules framed by the company to regulate the terms and conditions
of the employment.
31. As far as law laid down by the Supreme Court in C.N. Ramappa
Gowda Vs. C.C. Chandregowda (Dead) by LRs. and another (supra) is
concerned, that is in regard to a suit for partition. There the Supreme Court was
dealing with the provisions contained in Order VIII Rule 10, Order IX Rule 6,
Order XII Rule 6 and Section 33 of the Code of Civil Procedure, 1908
(hereinafter referred to as the ''CPC''). CPC is a procedural law. Their strict
compliance is mandatory. Hon'ble Supreme Court has already held that labour
jurisprudence is a beneficial legislation, especially, when labourers had exhibited
their attendance register to show their engagement with the employer then it
cannot be said that they were duty bound to call for the muster rolls, etc. to
prove their engagement for 240 days or more. Once they could prove their
engagement then Labour Court rightly held that they will be entitled to
permanent classification from a date, two years earlier to filing of the claim
before the Labour Court and not from any earlier date and has granted benefit
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of permanent classification from the said date which even on merits cannot be
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faulted with.
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32. When all the overall facts are taken into consideration then as per the
law laid down by Hon'ble Supreme Court in R.M. Yellatti (supra) High Court
is not required to interfere with the concurrent findings of fact recorded by the
Labour Court unless they are perverse. In the present case, there are concurrent
findings of fact recorded against the petitioner by the Labour Court and the
Industrial Court which does not call for interference especially when
employment of the respondent workmen beneficiaries since 2001 on continuous
basis is not disputed by filing any cogent evidence and looking to the fact that
the petitioner is an ongoing entity manufacturing Ayurvedic Medicines requiring
continuous engagement of the persons who are the beneficiaries of the Labour
Court. Another fact is that Labour Court granted relief only in favour of those
25 Workmen who had adduced evidence before it and not in favour of all the
58 Workmen who had approached it. This exercise of discretion by the Labour
Court clearly reveals that it was conscious enough of the fact that only those
persons can be granted relief who proved their case and not all who
approached it using the shoulders of the Union. When examined from this point
of view also then decision granting classification cannot be faulted with in the
light of the law laid down by the Hon'ble Supreme Court in Ram Naresh
Rawat Vs. Ashwini Ray and others, (2017) 3 SCC 436.
33. Thus, this writ petition under Article 227 of the Constitution of India, is
dismissed as there is no error apparent in the impugned orders calling for
interference in the supervisory jurisdiction of this High Court.
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(VIVEK AGARWAL)
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JUDGE
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