Imran vs The State Of Madhya Pradesh
2024 Latest Caselaw 15753 MP

Madhya Pradesh High Court

Imran vs The State Of Madhya Pradesh on 28 May, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                                      1


    IN THE HIGH COURT OF MADHYA PRADESH
                AT JABALPUR
                           BEFORE
        HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                   ON THE 28th OF MAY, 2024
                     WRIT PETITION No. 2432 of 2016

   BETWEEN:-

   IMRAN S/O SHRI NISAR MOHAMMAD, AGED
   ABOUT    32  YEARS,   901 GALI  NO.1
   SHAHJAHANABAD      BHOPAL   (MADHYA
   PRADESH)
                                                             .....PETITIONER
   (BY SHRI LALJI KUSHWAHA - ADVOCATE )

   AND

   1.    THE STATE OF MADHYA PRADESH THR.
         SECRETARY URBAN ADMINISTRATION
         AND    DEVELOPMENT    DEPARTMENT
         MANTRALAYA    VALLABH    BHAWAN,
         BHOPAL (MADHYA PRADESH)

   2.    COMMISSIONER NAGAR PALIKA NIGAM
         SADAR   MANJIL, BHOPAL  (MADHYA
         PRADESH)
                                                          .....RESPONDENTS
    (BY SHRI JUBIN PRASAD - PANEL LAWYER)

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

1. This petition under Article 227 of the Constitution of India has been filed seeking the following reliefs :-

(i) This Hon'ble Court may kindly be pleased to issue a writ, order or direction of appropriate nature, setting-aside the impugned order dated 11.09.2015, passed by the Industrial court-cum-Labour Court, Bhopal in Case No.217/2010/IDR in relation to non-consideration of claim of reinstatement with back wages w.e.f. 06.02.2010.

(ii) This Hon'ble court may kindly be pleased to issue a writ, order or direction of appropriate nature, directing the respondents to reinstate the petitioner in the services.

(iii) This Hon'ble Court may kindly be pleased to issue a writ, order or direction of appropriate nature, directing the respondents to grant the petitioner back wages & other benefits w.e.f. 06.02.2010.

(iv) This Hon'ble Court may kindly be pleased to issue another writ, directions, order which this Hon'ble court may deems fit and proper, looking to the facts and circumstances of the case to the petitioner.

2. It is submitted by counsel for the petitioner that by award dated 11.09.2015 passed by the Labour Court No.1 Bhopal in case no. 217/2010/IDR, it has been held that termination of service of the petitioner was in violation of Section 25 (f) of the Industrial Disputes Act but instead of granting relief of reinstatement, awarded compensation of Rs.50,000/- in lieu of reinstatement.

3. It is submitted that the petitioner was appointed on the post of Driver on 28.05.2006 and his services were terminated by verbal order on 5.2.2010. It is submitted that once the termination of services of the petitioner was found to be illegal and contrary to the provisions of law, then the Labour Court should have awarded relief of reinstatement.

4. Per contra, petition is vehemently opposed by counsel for the workman.

5. Considered the submissions made by counsel for the parties.

6. Moot question for consideration is as to whether the Labour Court / C.G.I.T. after holding that termination of an employee was illegal, should direct for reinstatement or can grant retrenchment compensation.

7. The Supreme Court in the case of Ram Manohar Lohia Joint Hospital Vs. Munna Prasad Saini reported in 2021 (III) MPWN 29 has held as under:-

"10. In Deputy Executive Engineer v. Kuberbhai Kanjibhai, [(2019) 4 SCC 307] this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited v. Bhurumal [(2014) 7 SCC 177] to the following effect:

"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way ofreinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional

cases for the reasons stated to be in writing, such a relief can be denied." victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily- wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated. he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker. no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay.

In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.

35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first-go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."

11. This dictum was again followed in State of Uttarakhand and Another v. Raj Kumar [(2019)14 SCC 353] and Ranbir Singh v. Executive Eng. P.W.D. [2021 SCC OnLine SC 670].

12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers: such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of section 25F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting

aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount."

6. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017)11 SCC 244 has upheld the grant of compensation in lieu of reinstatement as the respondent had merely worked for a period of one year.

7. The Supreme Court in the case of Hari Nandan Prasad Vs. Food Corporation of India, reported in (2014) 7 SCC 190 has held as under:-

"19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement: (BSNL case. SCC pp. 187-88. paras 29-30)

29. The learned counsel for the appellant referred to two judgments wherein this Court grantedMan Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.

30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4)

"2. Should an order of reinstatement automatically follow in a case where the engagement of a daily- wager has been brought to an end in violation of Section 25- F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question. "3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, delivering the judgment of this Court. one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Lid. v. Uday Narain Pandey. Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute. Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows:

(Jagbir Singh case, SCC pp. 330 & 335, paras 7 & 14).

"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow.

However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the

prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

"14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not however be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination. particularly. daily-wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily-wager who does not hold a post and a permanent employee.

"4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, wherein this Court stated:

(SCC p. 777. para 11).

"11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily- wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice."

21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the

validity of termination, Appellant I would not be entitled to reinstatement............."

8. In the light of the judgment passed by the Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1, a backdoor entry cannot be appreciated. Furthermore, order of termination was held to be bad on account of non-compliance of provisions of Section 25 (f) of the I.D. Act. Even if an employee is reinstated, still the employer can terminate his services by making payment of retrenchment compensation as provided under the Industrial Disputes Act. An employee cannot seek confirmation merely because his termination was illegal.

9. No other argument is advanced by counsel for the petitioner.

10. Under these circumstances, this Court is of the considered opinion that Labour Court did not commit any mistake by awarding compensation in lieu of reinstatement.

11. Accordingly, petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a, postalCode=482001, st=Madhya Pradesh, serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B19143AD99, cn=JITENDRA KUMAR PAROUHA Date: 2024.05.30 17:04:00 +05'30'

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