Upper Managing Director vs Birbal Sahu
2023 Latest Caselaw 19191 MP

                                                             1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 20 th OF NOVEMBER, 2023
                                             WRIT PETITION No. 27591 of 2018

                           BETWEEN:-
                           1.    UPPER    MANAGING     DIRECTOR   MADHYA
                                 PRADESH MADHYAM 40, ADMINISTRATIVE
                                 ZONE, ARERA HILLAS (MADHYA PRADESH)

                           2.    MANAGING DIRECTOR MADHYA PRADESH
                                 MADHYAM, 40, ADMINISTRATIVE ZONE, ARERA
                                 HILLAS (MADHYA PRADESH)

                                                                                        .....PETITIONERS
                           (BY SHRI SHANTANU SETH -ADVOCATE)

                           AND
                           BIRBAL   SAHU    S/O  SHRI   BHAGWATI    SAHU
                           OCCUPATION: C/O SHRI DINESH PRASAD SEN R/O 308,
                           PHAMPHAPUR, RAHUL NAGAR, MACT ROAD (MADHYA
                           PRADESH)

                                                                                       .....RESPONDENT
                           (BY SHRI ANOOP KUMAR SHRIVASTAVA - ADVOCATE)

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

                           following:
                                                              ORDER

This petition is filed by the employer being aggrieved of the award dated 29.06.2018 passed by Labour Court No.1, Bhopal in Case No.38/2005 (ID Ref.) on the ground that the respondent was given appointment on 29.09.1997. Copy of the appointment order is Annexure P-2. With the bifurcation of the State of Madhya Pradesh into State of Madhya Pradesh and the State of Chhattisgarh, there was reduction in number of copies of Madhya Pradesh Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 22-11-2023 11:55:05

Panchayika which was published and for the work related to which the respondent Birbal was given appointment on the post of peon in the pay-scale of Rs.750 -945.

It is submitted that there are several shortcomings in the impugned award. As per the law laid down by Hon'ble the Supreme Court in the case of P.K. Karupaiah (dead) Through Legal Representatives v. General Manager, Thruuvallavar Transport Corporation Ltd., (2018) 12 SCC 663, burden of proof that workman had worked for 240 days in a calendar year, is on the workman and it is further held that the workman has to prove that he was not gainfully employed during the dismissal period. Reliance is also placed on the

decision of Division Bench of this High Court in the case of Dileep Kumar Sharma v. Assistant General Manager, UCO Bank, Bhopal and Another 2021 (2) MPLJ 362 to point out that reinstatement is not a rule but an exception and the workman has to prove the contraventions of provisions of Sections 25-F and 25 - G and it is further held that in such circumstances, grant of compensation could have met the ends of justice.

Shri Anoop Shrivastava, learned counsel for the workman, in his turn, submits that admittedly workman was appointed on 29.09.1997. His appointment was in regular pay-scale. Work assigned was that related to publication of Madhya Pradesh Panchayika. Terms of the employment as contained in Annexure P-2 provide that employment is terminable on stoppage of publication of magazine Madhya Pradesh Panchayika. It is submitted that it is an admitted position that reduction in circulation is something different than that of stoppage of publication of Madhya Pradesh Panchayika. Shri Shantanu Seth admits that publication of the magazine Madhya Pradesh Panchayika is still continuing though with reduced circulation on account of bifurcation of the Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 22-11-2023 11:55:05

State.

It is thus, submitted by the counsel for the respondent that there is no error in the impugned award calling for interference.

After hearing learned counsel for the parties and going through the record, it is evident that the order of removal is dated 27.10.2004. It is evident that none of the provisions contained in Sections 25 F and 25 G were followed. It is mentioned in Annexure P-3 dated 27.10.2004 that since there is reduction in the number of magazines published by Madhya Pradesh Madhyam therefore, a decision was taken to reduce sanctioned posts and accordingly a post of peon was abolished.

Thus, it is evident from Annexure P-3 that the petitioner was admittedly working on the sanctioned post and that post was abolished as a result of which the services of the respondent workman were dispensed with. In view of such fact, the petitioner herein itself proved the fact of appointment of the workman against a sanctioned vacant post. There is no dispute as to the date of appointment in the year 1997. There is also no dispute that the workman did not work from 1997 till 27.10.2004. Therefore, when circumstances speak for themselves then principle of res ipsa locuitur will be applicable and nobody was required to prove those circumstances which stood proved on the face of the record. Thus, first submission made by Shri Shantanu Seth is devoid of merit

and does not call for any indulgence and to that extent the judgment of the Supreme Court in P. Karupaiah (supra) and judgment of this Court in Dileep Kumar Sharma (supra) are not applicable to the facts and circumstances of the case.

The Labour Court discussed the fact of employment of the workman and

Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 22-11-2023 11:55:05

has categorically noted that he was temporarily employed at the residence of Deputy Speaker of the Chhattisgarh Legislative Assembly, Raipur with effect from 01.09.2010 and has thus awarded back wages at the rate of 50% from 27.10.2004 to 31.08.2010, which too cannot be faulted with.

There is no illegality in the impugned award calling for interference. The petition fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE ks

Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 22-11-2023 11:55:05