Madhya Pradesh High Court
Ramkesh Patel vs The Director on 28 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No.351/2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABA LPU R
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 28th OF MAY, 2024
WRIT PETITION No. 351 of 2017
BETWEEN:-
RAMKESH PATEL S/O SHRI DWARKA PRASAD
PATEL, AGED ABOUT 51 YEARS, OCCUPATION:
SERVICE (DAILY WAGER) IN KRISHI UPAJ
MANDI SAMITI JABALPUR R/O NAI BASTI IN
VILLAGE SIMRA (KHIRIYA) P.S. URDUA KALA,
TAHSIL PANAGAR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY MS. RENU TIWARI - ADVOCATE WITH SHRI
DESHHIT SOUBHARI - ADVOCATE)
AND
1. THE DIRECTOR, MANDIES, 26, KISAN
BHAWAN, JAIL ROAD ARERA HILLS,
BHOPAL (MADHYA PRADESH)
2. THE PRESIDENT / SECRETARY, KRISHI UPAJ
MANDI SAMITI, MANMOHAN NAGAR,
DAMOH ROAD, JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI PRANAY CHOUBEY -
ADVOCATE AND RESPONDENT NO.2 BY SHRI
ABHIMANYU SINGH - ADVOCATE)
............................................................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been
filed seeking following relief(s):-
7.1 It is, therefore, prayed that a writ, order or
direction be issued by which the order
contained in Annexure P/4 be modified
and the petitioner be reinstated in service
with full back wages for the entire period
with effect from 30.11.1995 till the date of
realization of the amount.
7.2 That, any other order/ relief/ writ may be
granted to the petitioners as deemed fit and
appropriate under the circumstances of the
case by this Hon'ble High Court along with
the cost of the petition.
2. It is submitted by counsel for petitioner that by impugned Award
dated 16/08/2016 passed by Labour Court, Jabalpur in case
No.28/I.D.R./2011, an order of reinstatement has been passed but
backwages have been denied.
3. Per contra, it is submitted by counsel for respondents that the
initial burden is on the employee to show that he was unemployed.
Furthermore, services of the workman/ petitioner were discontinued on
30/11/1995 and reference was made by the Deputy Labour
Commissioner on 21/07/2011 i.e. after 16 years and accordingly, Labour
Court has rightly denied the backwages.
4. Heard learned counsel for the parties.
5. The Supreme Court in the case of Rajasthan State Road
Transport Corporation, Jaipur Vs. Shri Phool Chand (Dead)
Through L.Rs. decided on 20/09/2018 in Civil Appeal No.1756/2010
has held as under:-
"11. In our considered opinion, the Courts below
completely failed to see that the back wages
could not be awarded by the Court as of right to
the workman consequent upon setting aside of
his dismissal/termination order. In other words, a
workman has no right to claim back wages from
his employer as of right only because the Court
has set aside his dismissal order in his favour and
directed his reinstatement in service.
12. It is necessary for the workman in such cases
to plead and prove with the aid of evidence that
after his dismissal from the service, he was not
gainfully employed anywhere and had no earning
to maintain himself or/and his family. The
employer is also entitled to prove it otherwise
against the employee, namely, that the employee
was gainfully employed during the relevant
period and hence not entitled to claim any back
wages. Initial burden is, however, on the
employee.
13. In some cases, the Court may decline to
award the back wages in its entirety whereas in
some cases, it may award partial depending upon
the facts of each case by exercising its judicial
discretion in the light of the facts and evidence.
The questions, how the back wages are required
to be decided, what are the factors to be taken
into consideration awarding back wages, on
whom the initial burden lies, etc. were
elaborately discussed in several cases by this
Court wherein the law on these questions has
been settled. Indeed, it is no longer res integra.
These cases are, M.P. State Electricity Board
vs. Jarina Bee (Smt.) (2003) 6 SCC 141, G.M.
Haryana Roadways vs. Rudhan Singh, (2005)
5 SCC 591, U.P. State Brassware Corpn.
Ltd. v. Uday NarainPandey, (2006) 1 SCC
479, J.K. Synthetics Ltd. v. K.P. Agrawal &
Anr., (2007) 2 SCC 433, Metropolitan
Transport Corporation vs. V. Venkatesan,
(2009) 9 SCC 601, Jagbir Singh v. Haryana
State Agriculture Marketing Board, (2009) 15
SCC 327 and Deepali Gundu
Surwase vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC
14. The Court is, therefore, required to keep in
consideration several factors, which are set out in
the aforementioned cases, and then to record a
finding as to whether it is a fit case for award of
the back wages and, if so, to what extent."
6. Petitioner has not filed the copy of deposition-sheet of the
petitioner to show that he was unemployed during these 16 long years.
Why petitioner was sleeping over his right and waited for 16 years to
elapse before approaching the Deputy Labour Commissioner for his
reinstatement, has not been explained by petitioner.
7. It is true that no period of limitation is provided for approaching
the Labour Court after seeking reference from the Competent Authority
but said aspect can always be taken into consideration while deciding
the question as to whether workman is entitled for backwages or not.
8. Even otherwise, petitioner has also relied upon a judgment passed
by Supreme Court in the case of Jasmer Singh Vs. State of Haryana
& Anr. decided on Civil Appeal No.346/2015, in which it has been
held as under:-
"9. On issue No. 3, after adverting to the case
of State of Punjab v. Kalidass and Anr. in
C.W.P. No.1742 of 1996, wherein the High
Court has observed that the workman cannot be
allowed to approach the Labour Court after 3
years of termination of his services, upon which
reliance placed by the respondent employer with
reference to the said plea, the Labour Court has
rightly placed reliance upon the judgment of this
Court in Ajaib Singh v. Sirhind Co-operative
Marketing-cum-Processing Service Society Ltd.
and Anr. [(1999) 6 SCC 82] in which it is
observed by this Court that there is no period of
limitation to the proceedings in the Act.
Accordingly, Issue No.3 is answered against the
respondent-management. The relevant paragraph
from Ajaib Singh's case (supra) are extracted
hereinbelow:
"10. It follows, therefore, that the
provisions of Article 137 of the
Schedule to Limitation Act, 1963 are
not applicable to the proceedings
under the Act and that the relief
under it cannot be denied to the
workman merely on the ground of
delay. The plea of delay if raised by
the employer is required to be
proved as a matter of fact by
showing the real prejudice and not as
a merely hypothetical defence. No
reference to the labour court can be
generally questioned on the ground
of delay alone. Even in a case where
the delay in shown to be existing, the
tribunal, labour court or board,
dealing with the case can
appropriately mould the relief by
declining to grant back wages to the
workman till the date he raised the
demand regarding his illegal
retrenchment/ termination or
dismissal. The court may also in
appropriate cases direct the payment
of part of the back wages instead of
full back wages......"
(Underline Supplied)
9. Thus, when there is a delay in approaching the Labour Court, then
the Labour Court can mould the relief by declining to grant backwages.
10. Since no infirmity could be pointed out by counsel for petitioner,
accordingly, no case is made out warranting interference.
11. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
S.M.
