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Madhya Pradesh High Court · body

2000 DIGILAW 90 (MP)

Yusuf Khan v. M. P. Electricity Board

2000-01-31

N.G.KARAMBELKAR, S.P.SRIVASTAVA

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ORDER S.P. Srivastava, J. 1. Heard Shri Jitendra Maheshwari, learned Counsel for the appellant. 2. Perused the record. 3. The appellant who had been reinstated in service holding him entitled to the back wages for the period subsequent to December 21, 1990 by the Labour Court which was affirmed in appeal by the Industrial Court, feels aggrieved by the order of the learned single Judge allowing the writ petition filed by the employer, the present respondent Nos. 1, 2 and 3 vide the impugned order whereunder quashing the orders of the Labour Court and the Industrial Court, the application filed by the present appellant before the Labour Court was dismissed. The appellant has prayed for the reversal of the impugned order. 4. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass: The appellant had approached the Labour Court by means of the application dated February 11, 1991 seeking a declaration that the action of the employer dispensing with his services with effect from December 21, 1990 was illegal and he was entitled to the status of a permanent employee and entitled to the salary etc., accordingly. He had also prayed for a declaration that he was entitled to be reinstated in service with full back wages. The appellant had been granted intermittent engagements as a daily wages kamgar. These engagements were time bound with a clear stipulation that it was to last only for a period of 58 days. The first appointment/ engagement was granted on October 15, 1989. Thereafter, he was granted a fresh appointment/ engagement on August 18, 1990 for a period of 58 days. Thereafter, a similar time bound engagement/appointment was granted to him on October 25, 1990 which expired on December 21, 1990. He claimed the protection envisaged in paragraph 11 of the Standard Standing Orders for all the Undertakings in the State of Madhya Pradesh. He also claimed that he was a workman and was entitled to the protection envisaged under the Industrial Disputes Act, 1947 as the impugned action amounted to illegal retrenchment. He also raised a plea that the impugned action amounted to unfair labour practice as the said action had been taken to take undue advantage. He also claimed that he was a workman and was entitled to the protection envisaged under the Industrial Disputes Act, 1947 as the impugned action amounted to illegal retrenchment. He also raised a plea that the impugned action amounted to unfair labour practice as the said action had been taken to take undue advantage. It was also asserted that in his place other workmen such as Maksud Khan, Virendrasingh Bhadoriya, Lakharam, Keshav, Shivlal and Rammilan had been appointed on regular basis after accepting Rs. 5,000/- from each of them. Since the appellant had not been able to fulfil the demand for payment of such an amount his service had been dispensed with and he was not given fresh appointment. 5. The claim of the appellant had been contested by the employer. 6. The Labour Court rejected the claim of the appellant so far as it related to his classification as a permanent employee was concerned. However, being of the view that the employer was not entitled to dispense with the service of the appellant without serving upon him a notice in this regard it came to the conclusion that the service of the appellant could not be deemed to have come to an end. In this connection, the Labour Court placed reliance upon paragraph 11 of the aforesaid Standard Standing Orders and held that dispensation of his services was invalid and illegal, granted the relief of reinstatement with back wages. 7. The employer challenged the said order in appeal. The appellate authority upheld the order passed by the Labour Court holding that the concerned employee was entitled to the protection envisaged under paragraph 1l(b) of the Standard Standing Orders since no order in writing had been issued by the employer disclosing the reasons for the termination of his service and further provision contains in Section 25H of the Industrial Disputes Act, 1947, had not been complied with. 8. The learned single Judge in the impugned order placing reliance on the ratio of the decision of the Apex Court in the case of M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A. P., and Anr. reported in 1994 (2) SCC 323 : (1994-I-LLJ-597) as well as in the case of State of Rajasthan and Ors. 8. The learned single Judge in the impugned order placing reliance on the ratio of the decision of the Apex Court in the case of M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A. P., and Anr. reported in 1994 (2) SCC 323 : (1994-I-LLJ-597) as well as in the case of State of Rajasthan and Ors. v. Rameshwar Lal Gahlot, reported in 1996 (1) SCC 595 : (1996-I-LLJ-888) which were held to be attracted in the facts and circumstances of the present case, quashed the order passed by the Labour Court as well as the Industrial Court, It was found that both the Courts below had committed an error in holding that the provisions of Clause 11(b) will be applicable to the facts of the present case. It was also found that the order directing the reinstatement was contrary to law. 9. Paragraph 11 of the Standard Standing Orders for all the Undertakings in the State of Madhya Pradesh is to the following effect: "11. Termination of employment and the notice thereof to be given by employer and employee.- (a) When the employment of a permanent employee is to be terminated, he shall be given one month's notice or shall be paid wages for one month in lieu of notice. No employee other than a permanent employee shall be entitled to any such notice or wages in lieu thereof for termination of his service. (b) The reason for the termination of service shall be recorded in writing and shall be communicated to the employee unless such communication may in the option of the manager directly or indirectly lay the Company or the manager or the person signing the communication open to Civil or Criminal proceedings at the instance of the employee. (c) Any permanent employee desirous of leaving the employment shall give one month's notice to his departmental officer stating the reason for which he is leaving but if he so requires he may be relieved earlier than the date on which the period of notice expires. (d) No notice shall be necessary for the discontinuance of the employment of a permanent seasonal employee on the expiry of the season, but he shall have a lien on his post at the commencement of the next season. 10. (d) No notice shall be necessary for the discontinuance of the employment of a permanent seasonal employee on the expiry of the season, but he shall have a lien on his post at the commencement of the next season. 10. It may be noticed that in the aforesaid Standard Standing Orders in paragraph 11 (a) while providing that when the employment of a permanent employee is to be terminated, he shall be given one month's notice or shall be paid wages for one month in lieu of notice, it has further been clearly provided that no employee other than a permanent employee shall be entitled to any such notice or wages in lieu thereof for termination of his service. Further the provision contained in 11(b) of the aforesaid Standing Orders relate to termination of service referred to in paragraph 11(a) i.e. termination of the service of a permanent employee. 11. The aforesaid provision cannot by any stretch of imagination extend or cover those cases where the appointment/engagement is itself time bound indicating thereby that on the expiry of the period stipulated in the order of appointment/engagement, the relationship of master and servant will automatically come to an end. 12. It may further be noticed that the provision contained in Section 25H of the Industrial Disputes Act, 1947 referred to in the Appellate Court order refers to a case where any workman is retrenched and the employer proposes to take into his employ any person, in which situation, the employer is required in such manner as may be prescribed, to give an opportunity to the retrenched workman who is a citizen of India, to offer himself for re-employment, and such retrenched workman who offers himself for re-employment shall have preference over other persons. 13. In the present case what we find is that the appellant could not by any stretch of imagination be put in the category of retrenched employee envisaged under Section 2(oo) of the Industrial Disputes Act, 1947 which excludes from its purview the termination of the service of a workman under a stipulation contained in the contract of employment itself. 14. It is not in dispute that under the terms and conditions upon which the engagement/appointment had been accepted by the appellant, the relationship of master and servant could not be taken to exist subsequent to the specific period stipulated in the order of the appointment/engagement. 15. 14. It is not in dispute that under the terms and conditions upon which the engagement/appointment had been accepted by the appellant, the relationship of master and servant could not be taken to exist subsequent to the specific period stipulated in the order of the appointment/engagement. 15. In the aforesaid circumstances, the appellant was not entitled to any protection as envisaged under Section 25H of the Industrial Disputes Act, 1947. 16. The orders passed by the Labour Court and the Industrial Court are silent so far as the plea in regard to the unfair labour practice was concerned though it has been noticed that the appellant besides examining himself in support of his case had not led any other evidence. 17. In the return/counter-affidavit filed by the appellant in opposition to the writ petition, the only thing asserted was that atleast 15 persons had been employed along with the appellant; out of which several candidates had been regularised in service by the employer and the regularisation of the aforesaid candidates and the termination of the non-petitioner amounted to discrimination. No other plea had been urged apart from the pleas referred to hereinabove. 18. So far as the plea of discrimination is concerned that was based only on the ground that some of the candidates had been regularised leaving the appellant who was denied the benefit of regularisation. In such a situation as pointed out by the Apex Court in its decision in the case of Chandigarh Administration and Anr. v. Jagjit Singh and Anr., reported in AIR 1995 SC 705 . The mere fact that the respondent- authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The Apex Court had further observed: ".... The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. The Apex Court had further observed: ".... The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order......." 19. It may further be noticed that the appellant had not raised the plea before the Industrial Court or the Labour Court challenging the regularisation of the other persons or claiming his regularisation. In fact, the respondent-authorities had rejected his plea in regard to his being classified as a permanent employee. The finding in this regard has since attained finality. 20. It has been faintly urged by the learned Counsel for the appellant that while passing the impugned order, the Counsel for the employer had been heard but the Counsel on behalf of the appellant was not present and the appellant was not aware regarding the date of hearing. In such circumstances, it is contended that the order passed by the learned single Judge is liable to be set aside because the order had been passed without furnishing an opportunity of hearing to the appellant. 21. In the aforesaid connection, it may be noticed that the appellant had engaged Shri O.P. Mishra, Advocate who had filed a reply to the writ petition on July 2, 1997. The order sheet maintained by the learned single Judge indicates that on November 7, 1997, Shri O.P. Mishra, Advocate had appeared representing the appellant. The writ petition was heard on November 30, 1999. The order sheet of that date shows that none had appeared for the respondent and after hearing the arguments of the Counsel for the appellant, the order was dictated and signed. 22. In the present appeal, the appellant has filed the vakalatnama of Shri Jitendra Maheshwari, R.K. Soni and Dhirendra Singh. Shri O.P. Mishra, Advocate who had been engaged to represent him in the writ petition has not appeared for the appellant. 23. 22. In the present appeal, the appellant has filed the vakalatnama of Shri Jitendra Maheshwari, R.K. Soni and Dhirendra Singh. Shri O.P. Mishra, Advocate who had been engaged to represent him in the writ petition has not appeared for the appellant. 23. However, the learned Counsel for the appellant has not disputed that the name of Shri O.P. Mishra, Advocate who represented the appellant before the learned single Judge was duly shown in the case list of the Court on November 30, 1999. 24. There is nothing on the record to indicate that there was sufficient cause for the non-appearance of the Counsel for the appellant who had represented him before the learned single Judge on the date of hearing of the writ petition. No effort was made to get the order of the learned single Judge recalled establishing sufficient cause for the non-appearance of the appellant's Counsel on the date of hearing of the writ petition. In appeal nothing has been indicated which could justify an inference that there was sufficient cause for the non-appearance of the aforesaid Counsel at the relevant time. In such circumstances, the appellant has to think himself before (sic) engaging a Counsel who did not properly watch his interest. The contention that it was incumbent upon the learned single Judge to afford an opportunity of hearing to the appellant in person as urged by the learned Counsel for the appellant is totally misconceived and misplaced. In the facts and circumstances of the present case, it is not at all acceptable. 25. Taking into consideration the facts and circumstances brought on record, we are not satisfied that any justifiable ground has been made out for interference in the ultimate order passed by the learned single Judge. 26. This appeal is clearly devoid of merits and is accordingly dismissed.