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2010 DIGILAW 640 (MP)

Naveen Singh Bhadoriya v. State of M. P.

2010-06-30

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER A.K. Shrivastava, J. -- 1. The appellant/workman by taking aid of section 2 (1) of the Madhya Pradesh Uchcha Nyalay (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 has assailed the order dated 15th January, 2007 passed by the learned writ Court in WP No. 3540 of 2006 (S) as well as the order dated 25th November, 2009 passed in review application (MCC No. 133 of 2007) by which the award passed by the learned Labour Court dated 5th December, 2005 directing reinstatement of the appellant/workman with 50% back wages has been quashed. 2. No exhaustive statement of the facts of the case are required to be narrated for the disposal of this appeal. Suffice it to say that an industrial dispute was raised by the workman/appellant which was referred by the appropriate Government to the learned Labour Court for its adjudication. The point in dispute before the learned Labour Court was whether the action of the employer/ respondents in terminating the services of the workman/appellant, was in consonance with the law or not. 3. We have heard Shri D.P. Singh Advocate for the appellant and Shri P.N. Gupta, Government Advocate for the respondent-State and we are of the considered opinion that the appeal deserves to be allowed. 4. On going through the award passed by the learned Labour Court as well as the statement of claim submitted by the parties, this Court finds that as per the case of the workman, he was serving as daily wager in the employment of respondents. He was appointed in the month of December, 1985 as Driver on daily wages basis and after having served for near about 09 years, his services were terminated on 31st January, 1996. This order of termination was assailed by the workman/appellant by filing an application under section 19 of the Administrative Tribunals Act, 1985 before the Madhya Pradesh Administrative Tribunal. The learned Tribunal by an order dated 12th November, 1998 passed in OA No.131 of1991 quashed the termination order dated 31st January, 1996. But, the workman/appellant was again terminated by the respondents vide order dated 18th September, 2001 and the said order was served on him by affixture on 8th October 2001. The learned Tribunal by an order dated 12th November, 1998 passed in OA No.131 of1991 quashed the termination order dated 31st January, 1996. But, the workman/appellant was again terminated by the respondents vide order dated 18th September, 2001 and the said order was served on him by affixture on 8th October 2001. According to the workman, the action of the employer terminating his service de hors to the provisions of section 25 F and 25 F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') and because mandatory requirements were not complied with prior to passing of the termination order, the termination order would amount to illegal retrenchment and hence the workman be reinstated with full back wages. 5. Before the learned labour Court, the workman examined himself and on behalf of the employer, Shri GK. Tiwari, Assistant Conservator of Forest was examined. On behalf of the workman, an application was filed before the learned Labour Court on 5th August, 2003 praying to summon his service record. On this application no order was passed by the learned Labour Court as a result of which another application was submitted on 20th January, 2004 by the workman praying the same relief. The application was allowed by the learned labour Court on 18th March 2004 and it was directed to the respondents/employer to furnish the service record of the workman/appellant. No such record was produced by the employer/respondents before the learned Labour Court. 6. The learned Labour Court vide award dated 5th December, 2005 while deciding the issue No.1 came to hold that the action of the respondents/employer terminating the services of the workman/appellant runs contrary to the provisions of sections 25 F and 25 G of the Act and hence, directed the employer to reinstate the workman with 50% back wages. 7. The respondents/employer have assailed the award passed by the learned Labour Court by filing writ petition before this Court and the same was allowed by the impugned order by the learned writ Court. It is pertinent to mention here that no appeal was preferred by the workman disentitling him 50% of the back wages by the learned Labour Court. 8. Learned writ Court vide impugned order dated 15th January, 2007 allowed the writ petition of the employer by upholding the termination order of the workman/appellant. It is pertinent to mention here that no appeal was preferred by the workman disentitling him 50% of the back wages by the learned Labour Court. 8. Learned writ Court vide impugned order dated 15th January, 2007 allowed the writ petition of the employer by upholding the termination order of the workman/appellant. A review application (MCC No. 133 of2007) was preferred by the workman/appellant and it was also dismissed by learned Single Judge vide impugned order dated 25th November, 2009. 9. In this manner, the present writ appeal has been filed by the appellant/ workman. 10. During the course of arguments, it was submitted by the learned counsel for the appel1ant that finding of the learned writ Court holding that no application was filed by the workman/appellant before the learned Labour Court praying to summon his service record and, therefore, it cannot be said that the appellant had not served continuously for a period of 240 days, it a calendar year, is contrary to the record for the simple reason that not only once, but twice the workman filed applications before the learned Labour Court to summon the service record. His first application was filed on 5 August, 2003 on which no order was passed and another application was submitted on 20th January, 2004 which was allowed by the learned Labour Court on 18th March 2004 and it was directed to the employer to furnish the service record of the workman and, therefore, finding recorded by the learned writ Court is contrary to the record. This Court on 25th January, 2010 directed to summon the original record of the learned Labour Court and the same has now been placed before us. On going through the original record of the learned Labour Court, we find that two applications to summon the service record were filed by the workman/appellant before the learned Labour Court. The first application is dated 5 August, 2003 on which no order was passed, but, on another application which was filed on 20th January, 2004, an order was passed on 18th March, 2004 directing the employ to furnish the service record of the workman/appellant, hence, according• to us finding recorded by the learned Writ Court while allowing the writ petition preferred by the respondents/employer that the workman/appellant has not filed any application for summoning the service record before the learned Labour Court is contrary to the record. 11. 11. The question is whether the appellant/workman is still entitled for the relief which was prayed before the learned Labour Court and whether the award passed by the learned Labour Court should be restored. In this context, we have gone through the statement of claim filed by the parties as well as the evidence of the parties before the learned Labour Court from the original record. Indeed, categorically it was stated by the workman /appellant that he has worked for a continuous period of 240 days in a calendar year. Learned Labour Court while deciding issue No. 1 after appreciating and marshalling the evidence came to hold that for a considerable long period since 1985, the workman/appellant is serving as daily wager with the employer and, therefore, the action of the employer terminating the service of the appellant without following sections 25 F and 25 G of the Act is perverse and amounts to illegal termination. According to us, the learned Labour Court has rightly directed to reinstate the workman/appellant with 50% back wages. 12. Indeed, it was the bounden duty of the employer to submit the service record of the workman as directed by the Labour Court. Having failed to produce the service record, certainly, an adverse inference is to be drawn against the employer and we can infer that the said record was not submitted for the simple reason that if it would have been submitted it would go against the employer. 13. For the reasons stated above, we hereby allow this appeal. The impugned order dated 15th January 2007 passed by the learned writ Court in WP No. 3540 of 2006 (S) and the order passed by the learned Single Judge in the review application (MCC No. 133 of 2007) dated 25th November, 2009 are hereby set aside and the award dated 5th December, 2005 passed in case No. 67/A/ID Act/2002 (Reference) by the learned Labour Court is hereby restored. 14. Looking to the facts and circumstances of the case, the appellant shall also be entitled for cost of this appeal. Counsel fee Rs.5,000/- (Rupees five thousand only), if pre-certified.