Madhya Pradesh High Court
The State Of Madhya Pradesh vs Amit Gautam on 25 February, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 25th OF FEBRUARY, 2025
MISC. PETITION No. 4189 of 2021
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
AMIT GAUTAM
Appearance:
Shri A.S. Baghel - Govt. Advocate for petitioners-State.
Shri Sanjay Verma - Advocate for respondent-workman.
ORDER
This petition has been filed assailing the Award dated 19.11.2019
passed by the Presiding Officer, Labour Court, Satna (M.P.) in Case No.83
of 2016 whereby the respondent-workman was reinstated in service with
50% back wages.
2. The facts of the case, in short, are that the respondent-workman was
appointed as a security worker on daily wages at the office of respondent
No.3-department and worked from 01.09.2012 till 30.04.2014 continuously.
The management used to pay him on Collectorate rate. He had worked for a
period of more than 240 days. His services were terminated from 30.04.2014
without assigning any reason. He has not been given notice of retrenchment
and retrenchment compensation. The termination was bad in terms of
Sections 25-N and 25-F of the Industrial Disputes Act, 1947. The workman
claimed reinstatement in service and back-wages. The workman in his
statement of claim as well as in his affidavit by way of evidence deposed that
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he is unemployed since the date of his illegal termination despite his best
efforts.
3. The Labour Court, after considering the pleadings and evidence led by
the parties, came to the conclusion that the respondent's working of more
than 240 days in a calendar year stood proved and it held that there was
master-servant relationship between the department and the respondent-
workman. It further drew adverse inference against the department for not
filing attendance register/muster-roll for the period the respondent worked
and accordingly, directed for reinstatement with 50% back-wages. Hence,
this petition.
4. Placing reliance on the judgments rendered in Incharge Officer vs
Shankar Shetty, reported in (2010) 9 SCC 126, Telegraph Deptt. vs Santosh
Kumar Seal, reported in (2010) 6 SCC 773 and Jagbir Singh vs Haryana
State Agriculture Mktg. Board, reported in (2009) 15 SCC 327, it is argued
that the reinstatement should not be awarded as a matter of routine in all the
cases. The total facts of the case has to be assessed in its proper
perspective. In the present case, compensation should have been
directed. The Labour Court grossly erred in reinstating the respondent-
workman and granting 50% back wages. No appointment order was ever
issued to him and he was never appointed against any vacant or sanctioned
post. He has prayed for quashment of the impugned Award.
5. The counsel appearing for respondent-workman denies the stand taken
on behalf of the petitioners-department. It is urged that the impugned Award
does not suffer any illegality or perversity as the same is based on the cogent
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material evidence on record. He has prayed for dismissal of the petition.
6. Heard learned counsels for the parties and perused the record.
7. The record reveals that the respondent-workman had continuously
worked from 01.09.2012 till 30.04.2014 and that no retrenchment
compensation is paid before terminating him, nor is there any enquiry
conducted. It is observed that the workman had categorically deposed of
being unemployed after his termination. There is no evidence led by the
petitioner's counsel contradicting the same.
8. In the case of Hindustan Tin Works vs Employees, reported in (1979)
2 SCC 80, the Hon'ble Supreme Court has held as follows :
"9. ...The relief of reinstatement with continuity of service can
be granted where termination of service is found to be invalid.
It would mean that the employer has taken away illegally the
right to work of the workman contrary to the relevant law or in
breach of contract and simultaneously deprived the workman
of his earnings. If thus the employer is found to be in the
wrong as a result of which the workman is directed to be
reinstated, the employer could not shirk his responsibility of
paying the wages which the workman has been deprived of by
the illegal or invalid action of the employer. ..."
9. Further, in the case of Deepali Gundu Surwase vs Kranti Junior
Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324, it is held thus :
"38. The propositions which can be culled out from the
aforementioned judgments are:
38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back wages is the
normal rule.
38.2. The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating authority or
the court may take into consideration the length of service of
the employee/workman, the nature of misconduct, if any,
found proved against the employee/workman, the financial
condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are
terminated and who is desirous of getting back wages is
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required to either plead or at least make a statement before the
adjudicating authority or the court of first instance that he/she
was not gainfully employed or was employed on lesser wages.
If the employer wants to avoid payment of full back wages,
then it has to plead and also lead cogent evidence to prove that
the employee/workman was gainfully employed and was
getting wages equal to the wages he/she was drawing prior to
the termination of service. This is so because it is settled law
that the burden of proof of the existence of a particular fact lies
on the person who makes a positive averment about its
existence. It is always easier to prove a positive fact than to
prove a negative fact. Therefore, once the employee shows
that he was not employed, the onus lies on the employer to
specifically plead and prove that the employee was gainfully
employed and was getting the same or substantially similar
emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal
exercises power under Section 11-A of the Industrial Disputes
Act, 1947 and finds that even though the enquiry held against
the employee/workman is consistent with the rules of natural
justice and/or certified standing orders, if any, but holds that
the punishment was disproportionate to the misconduct found
proved, then it will have the discretion not to award full back
wages. However, if the Labour Court/Industrial Tribunal finds
that the employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false charge,
then there will be ample justification for award of full back
wages.
38.5. The cases in which the competent court or tribunal finds
that the employer has acted in gross violation of the statutory
provisions and/or the principles of natural justice or is guilty of
victimising the employee or workman, then the court or
tribunal concerned will be fully justified in directing payment
of full back wages. In such cases, the superior courts should
not exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by the Labour
Court, etc. merely because there is a possibility of forming a
different opinion on the entitlement of the employee/workman
to get full back wages or the employer's obligation to pay the
same. The courts must always keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is the
employer and the sufferer is the employee/workman and there
is no justification to give a premium to the employer of his
wrongdoings by relieving him of the burden to pay to the
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employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior courts have interfered
with the award of the primary adjudicatory authority on the
premise that finalisation of litigation has taken long time
ignoring that in majority of cases the parties are not
responsible for such delays. Lack of infrastructure and
manpower is the principal cause for delay in the disposal of
cases. For this the litigants cannot be blamed or penalised. It
would amount to grave injustice to an employee or workman if
he is denied back wages simply because there is long lapse of
time between the termination of his service and finality given
to the order of reinstatement. The courts should bear in mind
that in most of these cases, the employer is in an advantageous
position vis-à-vis the employee or workman. He can avail the
services of best legal brain for prolonging the agony of the
sufferer i.e. the employee or workman, who can ill-afford the
luxury of spending money on a lawyer with certain amount of
fame. Therefore, in such cases it would be prudent to adopt the
course suggested in Hindustan Tin Works (P) Ltd. v.
Employees .
38.7. The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal [(2007) 2 SCC 433] that on reinstatement the
employee/workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of three-Judge
Benches [Hindustan Tin Works (P) Ltd. v. Employees, (1979)
2 SCC 80], [Surendra Kumar Verma v. Central Govt.
Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443]
referred to hereinabove and cannot be treated as good law.
This part of the judgment is also against the very concept of
reinstatement of an employee/workman."
10. Insofar as the issue regarding entitlement of a daily wager for
reinstatement or back-wages is concerned, the Hon'ble Supreme Court in the
case of Krishan Singh vs Haryana State Agricultural Mktg. Board reported
in (2010) 3 SCC 637 passed an award in favour of a person who was said to
be engaged as a daily wager and directed his reinstatement as a daily wager
with 50% back wages.
11. If the aforesaid proposition of law is applied to the facts of the present
case, then it can be inferred that no illegality has been committed by the
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learned Labour Court in reinstating the respondent-workman with 50% back
wages. As no flaw could be pointed out by the petitioner-department in the
findings returned by the learned Labour Court, the reliefs as sought cannot
be granted. There is nothing on record to point out that the provisions of
Sections 25-N and 25-F of the Industrial Disputes Act, 1947 are complied
with prior to dispensing with the services of respondent-workman. The
impugned Award is upheld.
12. The petition sans merit and is accordingly dismissed. No order as to
costs.
(VISHAL MISHRA)
JUDGE
VV
