Divisional Forest Oficer vs Smt. Janki Bai Patel
2023 Latest Caselaw 12359 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                 ON THE 3 rd OF AUGUST, 2023
                                               WRIT PETITION No. 9947 of 2016

                           BETWEEN:-
                           DIVISIONAL FOREST OFfICER, FOREST DIVISION,
                           NAURADEHI, WILD LIFE FOREST DIVISION, TEHSIL &
                           DISTRICT SAGAR (M.P.)
                           2. SUB-DIVISIONAL OFFICER, NAURADEHI, WILD LIFE
                           FOREST DIVISION, REHLI, TEHSIL & DISTRICT SAGAR
                           (M.P.)

                                                                                         .....PETITIONERS
                           (BY SHRI AMIT SHARMA - ADVOCATE)

                           AND
                           SMT. JANKI BAI PATEL W/O SHRI NANHE PATEL, AGED
                           ABOUT 47 YEARS, R/O BAGHRAJ WARD, TEHSIL &
                           DISTRICT SAGAR (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           (BY MS. MALTI DADARIYA - ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

This writ petition is filed being aggrieved of the award dated 19.6.2015 passed by the learned Industrial Court-cum-Labour Court, Sagar, in Case No.06/2012-ID Act Ref (Smt. Janki Bai Patel vs. Divisional Forest Officer, Nauradehi & Another). This writ petition is filed on the ground that the learned Industrial Court has passed an award in favour of the workmen directing her reinstatement with backwages.

2. Shri Amit Sharma, learned counsel appearing for the petitioners Signature Not Verified Signed by: PRIYANKA PITHAWE Signing time: 05-08-2023 11:56:19

submits that the petitioners were not given an opportunity to adduce evidence and therefore, the award which is passed is cryptic and liable to be set aside.

3. It is submitted that there was no proof of workmen being deployed in the services of the petitioner and also, there was no proof to the effect that she had actually worked for 240 days in a calendar year calling for an application of provisions contained in Section 25-F of the ID Act, 1947 and thus, the impugned award is faulty and deserves to be set aside.

4. It is also submitted that there being no evidence to the fact that workmen was not gainfully employed for the period post retrenchment, no award could have been passed for the backwages. It is also submitted that the

workmen had stopped coming on her own volition therefore, there could not have been any order for reinstatement and payment of backwages. Reliance is placed on the judgment of Supreme Court in Madhya Pradesh Administration vs. Tribhuban (2007) 9 SCC 748 where, the Supreme Court overturned the order of the High Court directing reinstatement and upheld the orders of the Industrial Tribunal directing for payment of compensation in lieu of reinstatement.

5. After hearing learned counsel for the parties and going through the record, Shri Amit Sharma, when asked to read the written statement which was filed by the present petitioners before the Industrial Court, admits that it is mentioned in the reply to the statement of claim that claimant/workmen was never given appointment order to appoint her as a peon. Then it is mentioned in para-3 of the reply to the statement of the claim that first party did not work for six months in continuation or 240 days in a calendar year. Then it is mentioned that in the respondent organization, work of animal protection is carried out and therefore, there is no office and there is no question of appointing first party as Signature Not Verified Signed by: PRIYANKA PITHAWE Signing time: 05-08-2023 11:56:19

a peon. It is mentioned in para-4 that the petitioners had admitted that the first

party had worked as a daily wage labour from October, 2004 to 20 th August, 2005. She had worked from September, 2005 to October, 2006 but she never worked for the whole month. After 20.10.2006, she never worked in the petitioners' organization and thus, there is a tacit admission of workmen being deployed in the petitioners office and thus, there is a tacit admission that workmen had worked for more than 240 days in a calendar year.

6. There is no evidence on record to show that the workmen had stopped coming to the office on her own. It has come on the order-sheets of the Industrial Court as is mentioned in the order-sheet dated 28.04.2014 that non- applicant/petitioners were directed to produce some documents but those documents were not produced for which time was given on 05.03.2014 and 04.04.2014, therefore, the case was fixed for evidence of the first party. It has also come on record that vide order dated 05.06.2015, right to lead evidence by the non-applicant/petitioners herein was closed. No petition was filed to challenge that order of closure of right to produce evidence. Thus, it is evident that the petitioners had not produced any evidence. Therefore, their contention that the workmen had stopped coming on her own volition is not made out.

7. As far as the requirement of Section 25-F of the ID Act is concerned, it was mandatory for the petitioner to have followed the requirements of Section

25-F. Since, the provision of Section 25-F was not followed, therefore, the order of reinstatement cannot be said to be bad in law.

8. As far as payment of backwages is concerned, the Industrial Court has granted backwages only on a bald statement on affidavit that after retrenchment she had rendered unemployed. There is no affirmative assertion that she had no

Signature Not Verified Signed by: PRIYANKA PITHAWE Signing time: 05-08-2023 11:56:19

source of livelihood and was not employed.

9. Thus, in the opinion of this Court, the order of grant of backwages in absence of any cogent evidence in this behalf cannot be sustained. Therefore, the petition is allowed in part. It is directed that order of reinstatement shall remain intact but as far as the order of backwages is concerned, that needs to be modified and is hereby set aside.

10. As far as the judgment of the Supreme Court in Madhya Pradesh Administration vs. Tribhuban (supra) is concerned, the facts of that case are different. In that case, the ratio is that once the Industrial Court has exercised its discretionary jurisdiction under Section 11-A of the ID Act and directed payment of compensation (without reinstatement) to which respondent workmen was entitled, had Section 25-F being complied with then without there being discussion to find fault with exercise of jurisdiction, it is held that the High Court was in error in interfering with the discretionary jurisdiction of Industrial Court. But in the present case the facts are different, therefore, the aforesaid judgment has no application in the facts of the present case.

11. Thus, the petition is allowed in part and disposed of.

Certified copy as per rules.

(VIVEK AGARWAL) JUDGE Priya.P

Signature Not Verified Signed by: PRIYANKA PITHAWE Signing time: 05-08-2023 11:56:19