Madhya Pradesh High Court
Atul Nigam vs The State Of Madhya Pradesh on 7 July, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 7 th OF JULY, 2025
WRIT PETITION No. 301 of 2022
ATUL NIGAM
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Dhanesh Shrivastava, learned counsel for the petitioner.
Shri Ashutosh Gupta, learned counsel for respondent No.2.
ORDER
The present petition has been filed seeking the relief of regularization
on the ground that the counterparts of the petitioner appointed in the
corporation in the year 1995 have been regularized in service whereas the
petitioner has not been considered for regularization till date though he
completed 10 years of service as on 16/05/2007, which is the date on which
the State Government has framed policy in compliance of judgment of the
Hon'ble Supreme Court in the case of State of Karnataka Vs. Uma Devi
reported in (2006) 4 SCC 1.
2. Counsel for the respondents has vehemently opposed the petition on
the ground that the petitioner was initially appointed on daily wages on
01/11/1995 but he along with 393 other appointees was retrenched from
service in the year 1999. The said action was challenged in writ petition,
which was dismissed but in writ appeal, a direction was issued to the
employer to consider the representation. Thereafter, the employer-
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Corporation considered representation but still termination was upheld by the
employer. Therefore, no relief can be granted in the matter.
3. Upon hearing the rival parties it is seen that after the Division Bench
directed the authorities to pass a fresh cogent reasoned order, the respondent
authorities still rejected the case of the petitioner. This led the petitioner to
initiate conciliation proceedings under Industrial Disputes Act and the matter
was thereafter referred to the Labour Court 01/08/2013 by the appropriate
government. The Labour Court, Jabalpur in case No.68/IDR/2013 passed the
order holding that the initial appointment of the petitioner was not illegal
appointment. It was further held by the Labour Court that the petitioner has
duly worked from 01/11/1995 till 02/08/1999 and completed 240 days in
preceding Calendar year and further held that the dispensing with the
services of the petitioner amounts to legal retrenchment being made without
compliance of Section 25(B) and 25(F) of Industrial Dispute Act, therefore,
the Labour Court passed award of reinstatement of services. On the question
of backwages, the Labour Court held that since the termination period is long
one i.e. 13 years, therefore, the backwages were not granted to the petitioner
as the same was not found to be equitable.
4. The respondents did not challenge the said award passed on
13/01/2016 and proceeded to issue consequential order only 5 years after the
said order i.e. on 13/01/2021.
5. Now, the claim of regularization is being contested on the ground
that the petitioner has still not put in 10 years of service because he was
engaged for four years during 1995 to 1999 and now only 4 years service has
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been completed since 13/01/2021 and therefore, unless the petitioner
completes 10 years service, he cannot be considered for regularization. It is
further the case of the respondents that as on 16/05/2007, when the policy
was framed, the petitioner had not completed 10 years of service.
6. The aforesaid facts duly established that the petitioner was initially
appointed in the year 1995 and he was illegally retrenched on 02/08/1999.
He contested long drawn litigation since the year 1999 till the year 2016
before this Court in Single Bench as well as Division Bench so also getting
the matter referred to Labour Court and then contesting the case before the
Labour Court and even after the award of Labour Court, it took the
respondents as many as 5 years to reinstate the petitioner back on duty.
7. The Supreme Court in the case of Deepali Gundu Surwase Vs.
Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 has considered
the three judges Bench judgment of the Supreme Court reported in the case
of Hindustan Tin Works Vs. Employees reported in (1979) 2 SCC 80 and in
the case of Surendra Kumar Verma Vs. CGIT, reported in (1980) 4 SCC
443 and held as under:
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 required
to either plead or at least make a statement before the adjudicating
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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 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
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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 [Hindustan Tin Works (P) Ltd. v. Employees,
(1979) 2 SCC 80 : 1979 SCC (L&S) 53] .
38.7. The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] 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 : 1979 SCC (L&S) 53] , [Surendra Kumar
Verma v. Central Govt. Industrial Tribunal-cum-Labour Court,
(1980) 4 SCC 443 : 1981 SCC (L&S) 16] 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.
(Emphasis supplied)
8. In view of the aforesaid, it is clear that upon reinstatement a
workman is entitled to count the entire intervening period of service as
continuous service and he cannot be put into an adversity only for the reason
that he had been contesting a Court battle against his illegal retrenchment
which, in the present case, continued for 17 years and further 5 years was
taken by the employer to comply the said order.
9. Therefore, it is held that the services of the petitioner shall be
reckoned from 01/11/1995 onwards for the purpose of counting length of
service for regularization. He shall be considered for regularization at par
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with his counter parts in terms of the policy dated 16/05/2007 w.e.f.
16/05/2007 and such further dates on which the petitioner is found entitled as
per availability of vacant post.
10. The petition is allowed and disposed of.
(VIVEK JAIN)
JUDGE
RS
