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2002 DIGILAW 185 (MP)

M. P. S. R. T. C v. CHAKRAPAN SINGH DHAKARH

2002-02-18

S.S.JHA

body2002
S. S. JHA, J. ( 1 ) PRELIMINARY objection is raised by respondents that petitioner has not filed the certified copy of the impugned order and has not arrayed Labour Court as a party, therefore, petition is liable to be dismissed for non-compliance of rules framed under Article 227 of the Constitution of India. After objection was raised certified copy of the order passed by the Industrial Court is filed by the petitioner. ( 2 ) IT is true that in a petition under Article 227 of the Constitution of India it is essential that party must file the certified copy of the impugned order. Petition was filed in the year 1997 and certified copy was not filed. When objection was raised petitioner immediately filed the copy on record. Since copy is received on record it will not be appropriate to dismiss the petition on this ground. As regards non-impleading the Labour Court is concerned, this aspect is to be examined on its merits. Petitioner has referred to the judgment in the case of Munshi Naziruddin v. P. S. Lawale, member, Board of Revenue and others, 1955 nlj 732. In this case it is held that the order of primary authority which is confirmed by appellate authority then primary authority should also be impleaded. It has held in para 4 that primary authority should be impleaded even if appellate authority has affirmed its order. In this case it is held that the judgment of the Revenue Court at the earlier stage, that is to say, of the Deputy Commissioner, has not been put in, nor has he been impleaded in these proceedings, but that is only a technical matter. In this case it has been held that it is only a technical matter and it is further directed that the mater be referred only to bring to the notice of the litigants that if they wish a certain order to be quashed, it is necessary to implead not only the appellate authority but the primary authority also, even though it may be a judgment of affirmance. ( 3 ) IN the case of Udit Narain Singh v. Additional Member Board of Revenue and others, reported in AIR 1963 SC 786 , question of necessary and proper parties was considered in the matter of petitions under Article 226 of the Constitution of India. ( 3 ) IN the case of Udit Narain Singh v. Additional Member Board of Revenue and others, reported in AIR 1963 SC 786 , question of necessary and proper parties was considered in the matter of petitions under Article 226 of the Constitution of India. In this case it is held that in a writ of certiorari not only the Tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party. This petition relates to writ in the nature of Certiorari. ( 4 ) IN the case of M. A. Qureshi v. State of madhya Pradesh and others, reported in 1978 jlj 675, Division Bench has held that misjoinder of parties may be a defect but not fatal. In the case of Jamuna Prasad v. Bhaiyalal, reported in 1979 (1)MP Weekly Note No. 231, it is held that under Article 226 necessary parties are all authorities and Tribunals who pronounced orders against petitioner and they were not impleaded properly. ( 5 ) IN the case of Ram Sewak v. Bhagwat sahai, reported in 1979 (1) MP Weekly Note no. 238, it is held that none of the Tribunals whose orders are sought to be challenged were impleaded as parties, it is held that petition was not tenable. Considering the different judgments and the earlier judgment in case of munshi Naziruddin (supra) it is held that the defect of non- impleadment is only a technicality and the Division Bench in the case of M. A. Qureshi (supra) held that misjoinder of parties is not fatal. In the case of Uditnarain singh (supra) Apex Court while considering the scope of Full Bench judgment has considered the scope of Full Bench judgment of Nagpur High Court in the case of kanglu Baula Kotwal and another v. Chief Executive officer, AIR 1955 Nagpur 49. In the case of Uditnarain singh (supra) Apex Court while considering the scope of Full Bench judgment has considered the scope of Full Bench judgment of Nagpur High Court in the case of kanglu Baula Kotwal and another v. Chief Executive officer, AIR 1955 Nagpur 49. In this case persons who were elected from various constituencies were not impleaded as parties to the petition and were not given an opportunity to be heard before adverse orders were passed then the decision was held to be void. ( 6 ) IN the set facts of the case when party whose rights are being affected were not impleaded as parties then failure to implead such party will be fatal to the petitioner but as held in the case of Munshi Naziruddin (supra) that when the non- impleadment of Tribunal is only a technicality then petition cannot be dismissed on the ground misjoinder of parties. ( 7 ) ON the merits of the case respondent no. 1 has filed an application under Sections 31, 61 and 62 of Madhya Pradesh Industrial relations Act, 1960 (hereinafter referred to as the 'mpir Act') for his reinstatement. Though in the application it is contended that respondent No. 1 has not pleaded the post on which he was appointed. However, in para 3 of the application it is pleaded that vide order dated 24/01/1990 issued by Depot manager, respondent No. 1 was appointed as cleaner on daily wages w. e. f. 1/02/1990 to 31/03/1990. In para 4 of the application he has further stated that vide order dated 15/02/1990 the Depot Manager has directed him to work as Tyre Care Taker upto 5/04/1990. After 5/04/1990 no work was given to the respondent No. 1 and was not allowed to continue by an oral order. Labour court on appreciation of evidence dismissed the application and held that the services of respondent No. 1 were not terminated but it came to an end automatically and no order of termination from service was necessary. It was not necessary to issue show cause notice. Labour Court recorded a finding that respondent No. 1 was appointed for a fixed period of two months temporarily and on expiry of two months his services have come to an end. Services of Respondent No. 1 had come to an end under the provisions of Section 2 (oo) (bb) of Industrial Disputes Act. Labour Court recorded a finding that respondent No. 1 was appointed for a fixed period of two months temporarily and on expiry of two months his services have come to an end. Services of Respondent No. 1 had come to an end under the provisions of Section 2 (oo) (bb) of Industrial Disputes Act. ( 8 ) IT is contended by the counsel for petitioner that provisions of Section 2 (oo) (bb) of i. D. Act has not been considered by the appellate authority and has set aside the order of the Labour court ignoring the provisions of law. Though finding is recorded that since juniors of respondent No. 1 have been continued, respondent No. 1 should be continued but provisions of Section 2 (oo) (bb) have not been considered by the Industrial Court. Counsel for respondent No. 1 submitted that order is proper and the person who was appointed after respondent No. 1 has been continued. ( 9 ) IN the case of M. Venugopal v. Divisional Manager, Life Insurance corporation of India, Machilipatnam, reported in AIR 1994 SC 1343 : 1994 (2) SCC 323 : 1994-I-LLJ-597, the scope of Section 25-F and exception under Clause (bb) of Section 2 (oo) of Industrial Disputes Act was considered and it is held that where in the appointment order confirmation of the probationer was dependent upon the fulfilment of minimum business guarantee set out in Clause 10 of the appointment order and the services were found not to the satisfaction of the competent authority, the contract of employment was terminated under a stipulation in that behalf, contained in the order of appointment is not a retrenchment in view of the exception under Clause (bb) of Section 2 (oo) of Industrial Disputes Act, and it was, therefore, provisions of Section 25-F of I. D. Act are not attracted in the case. ( 10 ) IN the case Mukhtyer Singh v. Food corporation of India and Others, reported in 1994-II-LLJ-488, Division Bench of this Court has held that in matter of dismissal of an employee it is to be seen whether or not there was violation of the provisions under the law. ( 10 ) IN the case Mukhtyer Singh v. Food corporation of India and Others, reported in 1994-II-LLJ-488, Division Bench of this Court has held that in matter of dismissal of an employee it is to be seen whether or not there was violation of the provisions under the law. In the judgment it is held that an employee may have justifiable reasons for not holding an enquiry at all rather than having the enquiry impugned by the workman have scrutinized by the Tribunal and the employer may bonafide discharge or dismiss a workman for an act of misconduct and then may place the whole evidence before the Tribunal to prove misconduct. In the judgment scope of Clause (bb) of Section 2 (oo) of I. D. Act was considered and it is held that in a matter of termination of service of a workman as a result of the non-renewal of contract of employment between the employer and the workman and expiry of such contract then it will not be retrenchment within the meaning of Section 2 (oo)of I. D. Act. ( 11 ) RESPONDENT No. 1 referred to the judgment of Punjab and Haryana High Court in the case of Banarasi Das v. Labour Court, ambala, reported in 1994 (69) FLR and submitted that where services are terminated as no longer required then provisions of Section 2 (oo) of I. D. Act is not required. ( 12 ) CONSIDERING the facts of the case it is established that respondent No. 1 was appointed on contractual basis and he was unable to explain before the Labour Court that he was appointed against a regular post and has been retrenched. Labour Court relying upon his admission has dismissed the petition. Industrial Court has ignored the provisions of section 2 (oo) of I. D. Act in passing the order. Thus, the order suffers from material infirmity and is contrary to law. Therefore, in exercise of powers under Article 227 of the Constitution of India, order of Industrial Court annexure P/l is quashed and that of Labour Court, annexure p/2 is restored. ( 13 ) PETITION succeeds and is allowed without any orders as to costs. .