Madhya Pradesh High Court
Suresh Nadekar vs The State Of Madhya Pradesh on 14 August, 2023
Author: Gurpal Singh Ahluwalia
1 W.P. No.18169/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 14th OF AUGUST, 2023
WRIT PETITION No.18169 of 2019
BETWEEN:-
SURESH NADEKAR S/O SOMAJI NADEKAR,
AGED ABOUT 50 YEARS, OCCUPATION: DAILY
WAGES EMPLOYEE, WATER RESOURCES
DEPARTMENT, R/O BARARIPURA NEAR MATA
MANDIR CHHINDWARA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAUNAK YADAV - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY WATER
RESOURCES DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. ENGINEER IN CHIEF WATER RESOURCE
DEPARTMENT TULSI NAGAR BHOPAL
(MADHYA PRADESH)
3. SUPERINTENDENT ENGINEER WATER
RESOURCES DEPARTMENT BHOPAL
(MADHYA PRADESH)
4. CHIEF ENGINEER BAN GANGA KACHHAR
SEONI (MADHYA PRADESH)
5. EXECUTIVE ENGINEER WATER RESOURCE
DEPARTMENT CHHINDWARA (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI RITWIK PARASHAR - GOVERNMENT ADVOCATE &
RESPONDENT NO.5 BY SHRI H.K. UPADHYAY - ADVOCATE)
.........................................................................................................
This petition coming on for admission this day, the court passed the
following:
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 16-Aug-23
8:03:28 PM
2 W.P. No.18169/2019
ORDER
This petition under Article 226 of Constitution of India has been
filed against the order dated 31/07/2019, by which order dated
04/07/2019 has been cancelled.
2. It is submitted by counsel for the petitioner that initially by order
dated 01/07/1988 the petitioner was appointed as daily wages
Chowkidar in the office of respondent No.4. The services of the
petitioner and similarly situated other persons were put to an end and
therefore, petitioner and others raised an industrial dispute before
Labour Court Chhindwara. Labour Court Chhindwara vide order dated
16/10/2003 directed for reinstatement of petitioner without backwages.
The employer preferred an appeal before the Industrial Court Jabalpur
which was registered as Appeal No.152/03/MPIR against the order of
reinstatement whereas petitioner and similarly situated persons preferred
an appeal which was registered as Appeal No.151/MPIR/2003 against
non-grant of backwages. Both the appeals were dismissed by order
dated 10/09/2004. Petitioner made several representations for his
reinstatement but no action was taken. Thereafter, respondent No.5
wrote a letter dated 27/11/2012 to Chief Engineer, Banganga Kachchar,
Water Resources Department Seoni to take the petitioner back in
service. In reply, respondent No.4 i.e. Chief Engineer, Banganga
Kachchar Seoni wrote a letter to Engineer-in-Chief, Water Resources
Department for instructions for reinstatement of petitioner and
accordingly, by order dated 04/07/2019 petitioner was posted in the
office of Engineer-in-Chief, Water Resources Department Bhopal and
his present place of posting was shown as Water Resources Division,
Chhindwara. Thereafter on 24/07/2019, petitioner submitted his joining
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 16-Aug-23
8:03:28 PM
in the office of Executive Engineer, Water Resources Division
Chhindwara. However by order dated 31/07/2019, posting of petitioner
in the office of Engineer-in-Chief, Water Resources Department, Bhopal
was cancelled. It is submitted that the reinstatement of petitioner was by
virtue of award passed by the Labour Court and the appeal dismissed by
the Industrial Court therefore, reinstatement of the petitioner should not
have been cancelled.
3. Per contra, the petition is vehemently opposed by counsel for the
respondents. It is submitted by counsel for the respondents that
petitioner has not approached this Court with clean hands. It was
pleaded that petitioner has suppressed the fact that "he approached the
office of Executive Engineer, Water Resources Division Chhindwara on
24/07/2019 for the first time after 19/11/1997". Petitioner has also
suppressed the fact that after his removal from service, he has never
worked in the department anywhere. Petitioner has misconstrued the
order dated 04/07/2019 as if the order of posting the petitioner in the
Water Resources Division, Chhindwara. Order dated 04/07/2019 was
erroneously issued in respect of the petitioner by treating him as he was
working in the office of Executive Engineer, Water Resources Division,
Chhindwara. When the mistake was pointed out to the office of
Engineer-in-Chief, Water Resources Department Bhopal, impugned
order was issued thereby cancelling the posting order of the petitioner. It
is the case of the respondents that after removal from service on
19/11/1997 petitioner was not working in the Division, therefore there
was no question of relieving him to join in the office of Engineer-in-
Chief, Bhopal. Respondents also denied that any joining was ever given
to petitioner in the office of Executive Engineer, Water Resources
Division Chhindwara. It was claimed that the petitioner had approached
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 16-Aug-23
8:03:28 PM
the Labour Court and in their favour Labour Court had given an Award
dated 16/10/2003 which was unsuccessfully challenged by the
respondents before the Industrial Tribunal, Jabalpur and the appeal of
the employer was rejected by order dated 10/09/2004 and thereafter,
neither the petitioner nor other seven persons came and gave their
joining in the office of answering respondents more specifically
respondent No.5. It is further claimed that neither the petitioner nor
other seven persons moved before the Labour Court for execution of
order passed in their favour. The services of the petitioner and other
seven persons, who were working on daily wages, were dispensed with
because they were working in the project known as Kanhargaon Project,
Sambhag Chhindwara. This division was closed and shifted to Pench
Diversion Canal Division, Chourai, District Chhindwara. Thus, it was
the case of the respondents that since the petitioner was never posted in
Water Resources Division Chhindwara, therefore neither his joining was
accepted nor the impugned order suffers from any infirmity. It is also the
case of the respondents that after the award was passed by the Labour
Court which was affirmed by the Industrial Tribunal, petitioner did not
file any application for execution of the Award.
4. Heard learned counsel for the parties.
5. It is clear from the return filed by the respondents that the
petitioner was working till 1997 and since his services were
discontinued therefore he approached the Labour Court which was
allowed by order dated 16/10/2003. The order of reinstatement without
backwages was challenged by petitioner as well as by the respondents
by filing Appeal No.151/MPIR/2003 and Appeal No.152/03/MPIR. By a
common judgment dated 10/09/2004, appeals filed by both the parties
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 16-Aug-23
8:03:28 PM
were dismissed.
6. Thus, one thing is clear that the order of reinstatement without
backwages was affirmed. It is not the case of any of the parties that the
order passed by Industrial Tribunal was ever challenged before the High
Court or before any other Court.
7. Thereafter it appears that the petitioner approached the
respondents for allowing reinstatement and ultimately by letter dated
27/11/2012, respondent No.5, namely Superintending Engineer, Water
Resources Division Chhindwara wrote a letter to Chief Engineer,
Banganga Kachchar, Water Resources Department Seoni for further
action on reinstatement of the petitioner. Thereafter, it appears that Chief
Engineer, Banganga Kachchar Seoni, Water Resources Department vide
letter dated 21/01/2013 sought guidance from Engineer-in-Chief, Water
Resources Department Bhopal and ultimately, by order dated
04/07/2019, petitioner was posted in the office of Engineer-in-Chief,
Water Resources Department Bhopal. However, it appears that a
representation was made by the Authorities to Engineer-in-Chief that in
order dated 04/07/2019, it is mentioned that the present place of posting
of the petitioner is Water Resources Department, Chhindwara, whereas
he was never posted in the said department and accordingly, by
impugned order dated 31/07/2019 the posting order of the petitioner was
cancelled.
8. In the entire return, respondents have not clarified as to why the
award passed by the Labour Court and affirmed by the Industrial
Tribunal was not executed. The only defence which has been taken by
the respondents is that the petitioner did not approach the Labour Court
for execution of the award. However, one thing is clear that on the basis
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 16-Aug-23
8:03:28 PM
of repeated representations, respondent No.5 as well as respondent No.4
initiated the matter for reinstatement of the petitioner. Once it has been
admitted by the respondents in their return that the petitioner was
removed from services on 19/11/1997 and the order of maintaining
status quo ante was passed by the Labour Court then the respondents
were wrong in saying that petitioner was not working in the Water
Resources Department Chhindwara. The direction given by the Labour
Court was as under:-
^^vr% vukosndx.k dks funsZf'kr fd;k tkrk gS fd og
vkosndx.k dks iwoZ in ij fcuk fiNys osru ds lsok
esa iquZLFkkfir djsAa bl gsrq vukosndx.k dks ,d ekg
dk le; fn;k tkrk gSA mHk;i{k viuk viuk okn
O;; Lo;a ogu djsaA^^
9. Therefore, the respondents were under obligation to reinstate the
petitioner on the post from which he was terminated, therefore whatever
was the situation on 19/11/1997 was to be restored back.
10. Under these circumstances, this Court is of the considered opinion
that the respondents were wrong in holding that the place of posting of
petitioner was not Water Resources Department Chhindwara. Therefore,
order dated 31/07/2019 by which posting order of the petitioner dated
04/07/2019 was recalled, is bad in law and hence, it is hereby quashed.
11. Respondents are directed to immediately reinstate the petitioner
by accepting his joining in the office of Engineer-in-Chief, Water
Resources Department Bhopal.
12. The appeal filed by the respondents was dismissed by Industrial
Tribunal by order dated 10/09/2004 in Appeal No.152/03/MPIR. Thus, it
is clear that the respondents are also liable to pay salary which he would
have drawn as daily wager from 11/09/2004. Thus, it is directed that the
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 16-Aug-23
8:03:28 PM
arrears should be paid within a period of two months from today, failing
which it shall carry interest at the rate 6% per annum.
13. The petition succeeds and is hereby allowed.
(G.S. AHLUWALIA)
JUDGE
Shubhankar
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 16-Aug-23
8:03:28 PM
