Madhya Pradesh High Court

The State Of Madhya Pradesh vs Hariram on 28 August, 2023

Author: Vivek Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 28 th OF AUGUST, 2023
MISC. PETITION No. 3283 of 2018

BETWEEN:-
1. THE STATE OF MADHYA PRADESH THR
DIVISIONAL FOREST OFFICER (TERRITORIAL)
FOREST DIV. DISTT. TIKAMGARH (M.P.)
(MADHYA PRADESH)

2. FOREST RANGE OFFICER JATARA TIKAMGARH
(MADHYA PRADESH)

.....PETITIONER
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE)

AND
BABULAL PATERIYA S/O SHRI LAXMAN PATERIYA R/O.
VILL. LARKHURD POST JARUA TEH. JATARA (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI JITENDRA SHRIVASTAVA - ADVOCATE )

MISC. PETITION No. 3284 of 2018

BETWEEN:-
1. THE STATE OF MADHYA PRADESH THR.
DIVISIONAL FOREST OFFICER TERRITORIAL
FOREST DIVISION TIKAMGARH (MADHYA
PRADESH)

2. FOREST RANGE OFFICER JATARA, DISTT-
TIKAMGARH (MADHYA PRADESH)

.....PETITIONER
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE)

AND
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 31-08-2023
10:24:01
2
SHRI RAGHUVEER SINGH GHOSH S/O SHRI HARBAL
GHOSH VILLAGE HARPURA POST RAMGRAH TEHSIL
JATARA DISTT. TIKAMGARH (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI HARSHVARDHAN RAJPOOT - ADVOCATE)

MISC. PETITION No. 3285 of 2018

BETWEEN:-
1. THE STATE OF MADHYA PRADESH THR
DIVISIONAL FOREST OFFICER (TERRITORIAL)
FOREST DIV. DISTT. TIKAMGARH (MADHYA
PRADESH)

2. FOREST RANGE OFFICER JATARA DISTT.
TIKAMGARH (MADHYA PRADESH)

.....PETITIONER
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE)

AND
HARIRAM S/O SHRI SOOKA VANSHKAR R/O. VILL
PATHARA POST RAMGARH TEH. JATARA (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI JITENDRA SHRIVASTAVA - ADVOCATE )

MISC. PETITION No. 3286 of 2018

BETWEEN:-
1. THE STATE OF MADHYA PRADESH THR.
DIVISIONAL FOREST OFFICER TERRITORIAL
FOREST DIVISION TIKAMGARH (MADHYA
PRADESH)

2. FOREST RANGE OFFICER JATARA, DISTT-
TIKAMGARH (MADHYA PRADESH)

.....PETITIONER
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE )

AND
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 31-08-2023
10:24:01
3
AMAN SINGH THAKUR S/O SHRI BHAGWANT SINGH
THAKUR VILLAGE PATHARA POST RAMGRAH TEHSIL
JATARA DISTT. TIKAMGARH (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI JITENDRA SHRIVASTAVA - ADVOCATE )

MISC. PETITION No. 3349 of 2018

BETWEEN:-
1. THE STATE OF MADHYA PRADESH THR.
DIVISIONAL FOREST OFFICER (TERRITORIAL)
FOREST DIVISION TIKAMGARH (MADHYA
PRADESH)

2. FOREST RANGE OFFICER JATARA TIKAMGARH
M.P. (MADHYA PRADESH)

.....PETITIONER
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE )

AND
AJMER SINGH S/O SHRI BRINDAWAN GHOSH R/O
VILLAGE SHIVPURA, POST RAMGRAH, TEHSIL JATARA
DIST. TIKAMGARH (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI HARSHVARDHAN SINGH RAJPOOT -ADVOCATE )

MISC. PETITION No. 3753 of 2018

BETWEEN:-
1. THE STATE OF MADHYA PRADESH THR.
DIVISIONAL FOREST OFFICER TERRITORIAL
FOREST DIVISION TIKAMGARH (MADHYA
PRADESH)

2. FOREST RANGE OFFICER OFFICE OF FOREST
DIVISION TIKAMGARH (MADHYA PRADESH)

.....PETITIONER
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE )

AND
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 31-08-2023
10:24:01
4
SARJU PRASAD S/O SHRI MATHOLE PRAJAPATI VINOD
KUNJ CHKARA ROAD TEHSIL AND DISTT. TIKAMGARH
(MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI H.S. RAJPOOT - ADVOCATE )

These petitions coming on for admission this day, the court passed the
following:
ORDER

Learned counsel for the petitioners prays for pass over in the matter as he has not brought the judgments in his support.

Take up in pass over round.

In pass over round:

These writ petitions are filed by the State of Madhya Pradesh being aggrieved of the awards passed by learned Industrial Dispute Tribunal -cum- Labour Court, Sagar in Case Nos. COCA/19/2015/I.D. Act Reference, COCA/17/2015/I.D. Act Reference, COCA/25/2015/I.D. Act Reference, COCA/26/2015/I.D. Act Reference, COCA/15/2015/I.D. Act Reference, COCA/42/2015/I.D. Act Reference, decided vide award dated 20.12.2016, whereby the services of the workman has been directed to be reinstated with backwages.

2. Shri Darshan Soni, learned Government Advocate has raised three issues in these writ petitions. Firstly, that except in the case of Babu Lal Pateria (M.P. No. 3283 of 2018) where the claim was filed after a delay of 01 year, all other claims were filed after delay of 03 to 04 years and in one case the delay was up to the period of 07 years. Secondly, that actual working of 240 days has not been proved, except by filing the affidavit by workmen. Thirdly, since the workmen were the employees of the Gram Van Samiti, therefore, they cannot

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be said to be employees of the State.

3. Reliance is placed on the judgment of Supreme Court in the case of Range Forest Officer Vs. S.T. Hadimani (2002)3 SCC 25 wherein reading para -3, it is submitted that Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence i.e. respondent had worked for more than 240 days in the year preceding his termination. Similarly reliance is placed on the judgment of Supreme Court in the case of Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan & Others reported in (2004) 8 SCC 161, wherein in para-6 by placing reliance on the decision of S.T. Hadimani (supra) same ratio is laid down.

4. Reliance is also placed on the decision of Supreme Court in the case o f M.P. Administration v. Tribhuwan (2007) 9 SCC 748 wherein by placing reliance on para 6 it is held that relief of back-wages cannot be granted automatically. Reliance is also placed on the judgment of Madhya Pradesh High Court in the case of Municipal Corporation Jabalpur Vs. Presiding Officer, Labour Court, Jabalpur & another ILR (2018) MP 401, wherein placing reliance on the judgment of S.T. Hadimani , it is held that, it is the workman who has to prove his engagement of 240 days and then only any inference can be drawn by the Labour Court.

5. It is submitted that workman was since not appointed through any regular process and they were in fact employees of Gram Van Samiti for which a notification has been filed as Annexure P-5 dt. 22.10.2001 published in extra ordinary Gazette of Madhya Pradesh to point out that since the workmen were employees of the Van Raksha Samiti, therefore, they are not entitled to claim any relief.

6. Shri Harshwardhan Singh Rajpoot and Shri Jitendra Shrivastava Signature Not Verified Signed by: AMITABH RANJAN Signing time: 31-08-2023 10:24:01

respectively appearing for the workmen in their turn submits that case of Babulal Pateria be taken as a test case that will save repetition.

7. It is submitted that Babulal Pateria was employed in the year, 1983. Admittedly Gram Van Samiti was constituted in the year, 2001 as is pointed out by Shri Darshan Soni, learned Government Advocate by placing reliance on the Gazette Notification of the year, 2001 (Annexure P-5), therefore, prior to that they were admittedly employees of the State. It is submitted that Ex. A-3 is the certificate issued by the Office Assistant of the Forest Range Larkhurd, District Tikamgarh, in which it is mentioned that Babu Lal Pateria was working as a daily wage Chowkidar for last four years from the date of issuance of the certificate. The date of this certificate is 05.08.1986. This certificate is sufficient testimony of the proof that workman had proved his engagement for more than 240 days in a year. It is further pointed out that there is evidence of Shri Ram Swaroop Tiwari, who admitted that he was working in the office of Range Office, Lalkhurd as Ranger and he worked there from 1988 to 1991 when he

was transferred. He deposed that work of the workman was satisfactory. Though in cross-examination it was suggested to him that he is mixed-up with the workman after retirement and is giving inappropriate evidence but this fact is denied by him. This witness in cross-examination specifically denied that workmen were employees of the Gram Van Samiti.

8. After hearing learned counsel for the parties and going through the record. Firstly it is evident from the record that workman discharged their prima facie onus of having worked for 240 days preceding the date of retrenchment in the year, 2014. Therefore, judgment of Supreme Court in the case of S.T. Hadimani (supra) and Rajashtan State Ganganagar S. Mills

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Ltd. (supra) will not be applicable to the facts and circumstance of the case.

9. It has come on record and discussed in the order of the learned Industrial Court that in his statement petitioner's witness Anand Shivhare, In- charge Officer, Forest Range Office, Jatara admitted that record of last 12 years is preserved in his office. It is kept in the office of the D.F.O. Tikamgarh. He also admitted that daily wages employees were appointed in his office from 1983 to 2014. However, he did not produce any record of muster role though an application was filed by the claimants on 14.09.2015 and which was allowed by the learned Industrial Court on 01.10.2015 directing the employer to produce the copy of the muster role. Thus, it has recorded specific finding in para 15 of the award that despite giving opportunity and there being an admission of keeping the records for last 12 yeas, no muster-role record was produced by the employer i.e. the petitioners herein. Adverse finding against the petitioners/state cannot be said to be illegal and arbitrary.

10. It is true that petitioner had taken a preliminary objection under special statements before the learned Labour Court that workmen were employees of Gram Van Samiti but there is another important fasit that firstly Gram Van Samiti was constituted vide notification dated 22.10.2021, this notification in para 8.1 provides that these Van Samiti will work under Forest Micro Plan and that will be financed and nurtured by the Forest Department and other Departments of the State. There is also a provision for appointment of Gram Van Samiti for a period of 05 years and the persons were required to be deployed only for the period of 05 years and not beyond it. When this provisions is read in clause 5.1 then it is evident that after constitution of Gram Van Samiti, workman could not have continue up to the year, 2014 whereas their tenure was to be only for a period of five years. This another grey area Signature Not Verified Signed by: AMITABH RANJAN Signing time: 31-08-2023 10:24:01

which has not been answered coupled with certificate Annexure A-3, available on record, which could not be disputed.

11. Thus, as far as plea of workman being employee of Gram Van Samiti, they having no nexus with the work of the State Government is concerned, notification Annexure P-5 itself belies that. Notification clearly provides that all the activities of Gram Van Samiti are to be financed by the State Government under its Micro Plan. They were to be employed only for a period of 05 years for voluntary work, but if somebody was employed from 1983 as is evident from the certificate produced on record and continued up to 2014 than State cannot come and say that they were not the employees of the State Government especially when Gram Van Samiti were constituted in the year, 2001. It cannot be said that there was no need to observe provisions contained in Section 25F of the Industrial Dispute Act. Thus, as far as order of reinstatement is concerned, and as admitted by Shri Darshan Soni, learned Government Advocate that workmen were reinstated in the year, 2020 and though that was subject to the out come of these petitions but coupled with the fact that there is non-compliance of Section 17(B) of the I.D. Act from the date of the award till the date of reinstatement, impugned award as far as it concerns with the reinstatement cannot be faulted with.

12. Another aspect to it is, in regard to payment of back wages. I am of the opinion that mere bald statements that they were unemployed is not sufficient. They were required to bring on record the efforts which were made by them to gain employment. Therefore, in the light of judgment passed by Supreme Court in the case of Pradeep Vs. Manganese Ore (India) Ltd. (2022)3 SCC 683 I am of the opinion that there cannot be any automatic grant

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 31-08-2023 10:24:01

of back-wages, to that extent, these petitions deserves to succeed and are here by allowed. It is directed that order of reinstatement shall remain intact but workmen will not be entitled for back-wages. However, they will be entitled to wages w.e.f. expiry of three months of time of passing of the award till the date of actual reinstatement.

13. In above terms these petitions are allowed in part and disposed of.

(VIVEK AGARWAL) JUDGE Amitabh

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 31-08-2023 10:24:01