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Madhya Pradesh High Court · body

2019 DIGILAW 166 (MP)

SHRI MOHANLAL KUMHAR v. STATE OF M. P.

2019-02-22

SANJAY DWIVEDI

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JUDGMENT : Sanjay Dwivedi, J. 1. At the request of the learned counsel for the parties, since the pleadings are complete, the matter is heard finally. 2. By the instant petition, the petitioner is not assailing any specific order but asking for issuance of appropriate writ especially for respondent No.4 who has dismissed the petitioner from service on the post of Unskilled Labour (Chowkidar) only by an oral order and also asking for his reinstatement with full back wages. 3. As per the facts of the case, the petitioner was initially appointed as a Driver in the contingency establishment by respondent No.2 on 25.09.2006 and thereafter the petitioner continued in service till 22.10.2011 without any written order. But, on the basis of oral order, he was removed from service without assigning any reason and also without giving any opportunity of hearing. The petitioner approached the Assistant Labour Commissioner for reconciliation of the dispute although that failed and thereafter the matter was referred to the Labour Court under Section 10 of the Industrial Disputes Act, 1947 (for brevity the 'Act, 1947') for resolving the dispute. 4. The Presiding Officer, Labour Court, Narsinghpur, vide order dated 17.12.2014 passed an award in favour of the petitioner directing the respondents to reinstate the petitioner on the post of Driver at the same place where he was posted at the time of dismissal within a period of two months without any back wages. The award passed by the Labour Court dated 17.12.2014 is available on record as Annexure-P-1 to the petition and perusal of the same it is clear that the respondents did not appear before the Labour Court and, therefore, the said award has been passed ex parte. 5. The respondents thereafter filed a writ petition before the High Court challenging the award dated 17.12.2014. The writ petition i.e. W.P. No.20564/2015 [Project Officer, ICDS, Narsinghpur vs. Mohallal Kumhar (Prajapati)] was dismissed vide order dated 19.08.2016 approving the award passed by the Labour Court. The order of the High Court is available on record as Annexure-P-2. 6. The respondents thereafter filed a writ appeal questioning the correctness of the order passed by the writ Court as also the award of the Labour Court. The said writ appeal was registered as W.A. No.11/2017 [Project Officer vs. Mohan Lal Kumhar (Prajapati)], which was also dismissed vide order dated 10.01.2018. 6. The respondents thereafter filed a writ appeal questioning the correctness of the order passed by the writ Court as also the award of the Labour Court. The said writ appeal was registered as W.A. No.11/2017 [Project Officer vs. Mohan Lal Kumhar (Prajapati)], which was also dismissed vide order dated 10.01.2018. The order of the writ appeal is available on record as Annexure-P-3. 7. The petitioner thereafter submitted his joining on 14.03.2018 giving reference to the order of the High Court. The joining letter is Annexure-P-4 to the petition. In response to the said letter, the District Program Officer (respondent No.4) wrote a letter to respondent No.3, sought his advice apprising that the post of Driver has been declared as a dying cadre post and there is no other Class-IV post lying vacant, ergo, in pursuance to the order passed by the High Court and also by the Labour Court, it is very difficult to get the petitioner reappointed. Thereafter, on 09.06.2018 instructions issued by respondent No.4 to respondent No.2 to take work from the petitioner as Unskilled Labour (Chowkidar) and post him in Child Development Project, Chichli. The letter dated 09.06.2018 is Annexure-P-6. On 14.06.2018, the petitioner submitted his joining. The joining letter is Annexure-P-7. The petitioner thereafter in a public hearing held on 19.06.2018 made a complaint to respondent No.5 that despite performing duties, his attendance is not being recorded by respondent No.2 and his presence is also not shown in the attendance register as such requested respondent No.5 to issue appropriate instructions to the officer so that his presence be officially recorded. The said complaint is available on record as Annexure-P-8. Thereafter, on 07.07.2018, he again made a complaint to respondent No.5 i.e. Annexure P-9, apprising him that although he was allowed to join on 14.06.2018 but thereafter respondent No.4 asked him not to come in the office as his services were not required. 8. The petitioner being aggrieved with this oral dismissal and also with the illegal and arbitrary conduct of the respondents not obeying the order passed by the Labour Court so also the High Court, has filed this petition asking interference by this Court and seeking appropriate directions to the respondents for his reinstatement in service. 9. The respondents have filed their reply. 9. The respondents have filed their reply. From a perusal of the reply submitted by the respondents, it is seen that a stand has been taken that the order passed by the Labour Court as well as High Court is complied with as the petitioner was allowed to join and was given work on the post of Chowkidar as per the requirement but he was not regular and he had to open the office before 10:30 a.m. and to close it at 5:30 p.m. but he used to come from Narsinghpur at about 06:00 p.m. in the evening and used to go back at 09:00 a.m. to Narsinghpur and despite giving him advice to perform the duties regularly, he did not do so. They have also annexed a letter dated 16.07.2018 (Annexure-R-1) apprising the District Project Officer that the petitioner used to come to the office at about 06:00 p.m. and remained there till 09:00 a.m. whereas, he had to open the office at 10:30 a.m. and to close it at 05:30 p.m. but he did not do so even for a single day and remained absent continuously for 18 days. 10. The respondents have also annexed the letter dated 29.03.2016 as Annexure-R-2 apprising the Labour Court, Narsinghpur, that they have deposited Rs. 62,265/- in the account of the Presiding Officer, Labour Court, Narsinghpur, towards the back wages. In their reply, they have also annexed the letter dated 24.08.2018 (Annexure- R-3) which probably a communication made by respondent No.4 to the Commissioner, Women and Child Development Department, Bhopal, in response to the complaint made by the petitioner in C.M. Help line regarding his removal from service. 11. In the reply it is stated by the respondents that the petitioner has not been removed from service but he himself is not attending the office. It is further stated that even if the petitioner attends the office and performs his duties, it is not sure that he would get the wages because there is no sufficient funds in the department. The respondents have stated that the order passed by the Labour Court and also this Court has been complied with and due to non-cooperation of the petitioner, the present existing situation has arisen. 12. The petitioner filed a rejoinder denying the stand taken by the respondents in their reply. The respondents have stated that the order passed by the Labour Court and also this Court has been complied with and due to non-cooperation of the petitioner, the present existing situation has arisen. 12. The petitioner filed a rejoinder denying the stand taken by the respondents in their reply. In the rejoinder, it is specifically stated by the petitioner that from the stand taken by the respondents itself, it is clear that the petitioner performs duties for 15 hours in a day and what more can be expected although he has stated that no attendance is being taken by the respondents, therefore, it is difficult to believe the allegation made by the respondents as to what time the petitioner used to come to the office. 13. Arguments heard. Record perused. 14. The learned counsel for the petitioner contends that it is a total disregard by the respondents especially respondent Nos.2 and 4 towards the orders passed by the Labour Court and also by this Court. He further submits that the conduct of the respondents is absolutely illegal, arbitrary and in fact derogatory because in any manner they have no option but to comply the order passed by the Labour Court, which has been even affirmed by the Division Bench of this Court. He further submits that the petitioner should have been reinstated on the post of Driver as directed by the Labour Court. Since there was no modification and correction in the order by any higher forum though the same was challenged by the respondents before the higher forum, respondents have no right to deviate from the same. 15. He further submits that before the High Court, the respondents have never taken any stand showing that the post of Driver is declared dying cadre post and, therefore, it is impossible for them to reinstate the petitioner on the post of Driver. The petitioner is, therefore, claiming that the respondents be directed to comply the order passed by this Court and reinstate him on the post of Driver. He further submits that just to circumvent the orders passed by the Labour Court and also by the High Court, the respondents have allowed the petitioner to work on the post of Chowkidar only for 4 days and thereafter he was removed. He further submits that just to circumvent the orders passed by the Labour Court and also by the High Court, the respondents have allowed the petitioner to work on the post of Chowkidar only for 4 days and thereafter he was removed. He further submits that the petitioner was vigilant, therefore, immediately he raised his grievance before the Collector and asking him to take appropriate steps so that his presence can be marked in the attendance register, but nothing was done and, therefore, this petition has been filed. 16. The learned counsel for the respondents has supported the stand taken by them in their reply and has stated that it is the petitioner who stopped coming to the office but he has not been removed as alleged by the petitioner. 17. I have heard the learned counsel for the parties and also perused the record. I am of the opinion that as far as the respondents, especially respondent No.4 is concerned, it shows that the said authority has no regard to the order passed by the Labour Court as well as the High Court. Not only this, but it can be easily gathered that, in every step, respondent No.4 has tried to mislead its Higher Authority and also to this Court and making false and frivolous stand even before this Court. From the language used by respondent No.4 in its letter dated 24.08.2018 (Annexure-R-3), it reveals that respondent No.4 has informed the Commissioner, Women and Child Development, Bhopal, that the petitioner has made false and frivolous statement before the Labour Court and also produced false evidence. 18. It is otherwise an allegation against the Court because the said order has also been affirmed by the High Court and without realizing the fact that the respondent/Authority has not contested the matter and chose not to appear before the Labour Court, an ex parte order has been passed by the Presiding Officer, Labour Court, Narsinghpur. In the said letter, it is not disclosed that the post of Driver is declared as dying cadre. On the contrary, it is shown in the letter that the vehicle which is being run by the petitioner is not in a workable position, therefore, the petitioner cannot be reinstated on the post of Driver. In the said letter, it is not disclosed that the post of Driver is declared as dying cadre. On the contrary, it is shown in the letter that the vehicle which is being run by the petitioner is not in a workable position, therefore, the petitioner cannot be reinstated on the post of Driver. However, the reply submitted by the respondents on an affidavit sworn by respondent No.4, it is stated that the post of Driver is declared dying cadre post. 19. Being the State, it is expected that each and every statement of the Authority must be supported by a document. If post of Driver is declared dying cadre post then, it was obligatory for respondent No.4 to file appropriate reply supported with documents. Thus, it can be presumed that respondent No.4 has made false statement before the Court just to avoid the compliance of the order of this Court otherwise this fact should have been disclosed in the letter dated 24.08.2018 (Annexure-R-3). 20. Not only this, but from the letter dated 24.08.2018, it is clear that respondent No.4 was well aware about passing of the order by the Labour Court that the petitioner has been directed to be reinstated without back wages but surprisingly in the reply they have annexed the letter dated 29.03.2016 (Annexure-R-2) showing that the petitioner was paid back wages amounting to Rs. 62,265/- and the same stand has been taken in paragraph-7 of the reply submitted by the respondents. Indeed, it is surprising that when the order of the Labour Court was very specific and reinstatement of the petitioner was made without any back wages then, why an amount of Rs. 62,265/- was deposited towards back wages. It shows the complete carelessness and casualness on the part of the Government Authority and its functionaries. 21. It is worth noting that from a letter annexed by the petitioner as Annexure-P-5 which has been written by respondent No.4 to respondent No.3 seeking his guidance and also from the language used by respondent No.4 in the said letter, it reflects that the Collector instructed respondent No.4 to comply the order of the Labour Court and the High Court but respondent No.4 has shown his incapability for implementing the order of the Courts. Nothing has been produced by the respondents as to on what basis respondent No.4 issued instructions on 09.06.2018 to the Project Officer, Integrated Child Development Scheme, Narsinghpur, allowed the petitioner to work as Unskilled Labour (Chowkidar) in Child Development Project, Chichli, whereas the order of the Labour Court was very specific that the petitioner was to be reinstated on the post on which he was working and at a place where he was working at the time of termination. It shows total disregard to the order of the Labour Court by respondent No.4 and it can be presumed that the said authority was not inclined to honour the order of the Court and to keep the petitioner in service. 22. Not only this, but the documents filed by the petitioner make it clear that just to circumvent the order of the Court, a letter dated 09.06.2018 was issued by respondent No.4 allowing the petitioner to submit his joining as a Chowkidar but respondent Nos.2 and 4 have not made any arrangement for recording the attendance of the petitioner, for which, the petitioner made a complaint to the authorities. The document filed by the petitioner also reveals that the petitioner was vigilant to raise his grievance and from time to time he was complaining the Authorities to take appropriate action in that respect and instruct the officer concerned so that his attendance can be recorded. But, nothing is available on record and even no reply has been filed by the respondents as to what arrangement they have made for recording the attendance of the petitioner and if the said arrangement was not made then, why that mistake could not be rectified. 23. The respondents even did not care to reply the said allegation of the petitioner. Not only this, but in the letter dated 24.08.2018 (Annexure-R-3), respondent No.4 also nowhere disclosed and apprised the Commissioner, Women and Child Development, Bhopal, that the petitioner has stopped coming in the office and he himself has left the job. I am surprised under the existing circumstances as to how such an important fact can be forgotten by respondent No.4. It indicates that it is respondent No.4 who is somehow trying to avoid compliance of the orders of the Labour Court and the High Court and also trying to mislead its higher Authority. 24. I am surprised under the existing circumstances as to how such an important fact can be forgotten by respondent No.4. It indicates that it is respondent No.4 who is somehow trying to avoid compliance of the orders of the Labour Court and the High Court and also trying to mislead its higher Authority. 24. From the available circumstances, I have no hesitation to say that the respondent/Authority especially respondent No.4 is trying to harass the petitioner and somehow making all endeavours for not implementing the order of the Courts. Such a conduct of an Authority that too holding the post of the District Program Officer is deprecated. Class-IV employee (Daily Wager) having orders of the Courts in his favour cannot be left helpless in such manner otherwise the faith of the public would be shaken over the judiciary. From the documents and reply filed by the respondents, it is seen that the petitioner was performing his duties at least for 15 hours. No document has been filed by the respondents showing that the petitioner was ever asked to come on time and this material fact was even not disclosed by respondent No.4 in letter dated 24.08.2018 (Annexure-R-3). Thus, it is clear that respondent No.4 has taken false stand before this Court in its reply dated 25.09.2018. 25. Accordingly, the petition filed by the petitioner is allowed directing the respondents to comply with the order passed by the Labour Court forthwith and allow the petitioner to perform duties on the post of Driver at a place from where he had been removed from service. 26. Before parting with the matter it is observed that when the order of the Court was very specific directing the respondents to reinstate the petitioner on the post of Driver at the same place wherefrom he had been terminated and if the implementation of the said direction was not possible, it was appropriate on the part of the respondents to seek leave of the Court or to seek review of the order apprising the Court about the difficulty being faced by the respondents but instead doing so, respondent No.4 sought opinion from the Higher Authorities. 27. Although, in the record there was nothing produced by the respondents as to what advice was given by the Higher Authority. 27. Although, in the record there was nothing produced by the respondents as to what advice was given by the Higher Authority. It is apt to mention here that filing reply in the Court is not a mere formality; the reply is not a stand of an individual and say of the Officer In-charge but it is considered to be a stand of the Government and, therefore, the Officer In-charge should not be casual or careless while passing on instructions to the Government Advocate, equally the Law Officer should also be vigilant while drafting the reply as to what is being written in the same. 28. In the present case, it is unequivocal that the stand of the respondents is very casual; full of false and frivolous fact just to circumvent the orders of the Courts. If the orders of the Courts are flouted or disregarded in such manner, this Court cannot shut its eyes to allow the Officer/Authority to shrug their shoulders to implement the directions of Court. It is a case of low paid employee and after moving from pillar to post, he succeeded in the case but yielded nothing merely because a particular officer somehow wanted to harass him. The Court must take cognizance of such a situation to do away with a situation of lawlessness so that the faith in justice would not be defeated or denied to the aggrieved person. 29. In such circumstance, it is directed that an appropriate enquiry be initiated against the officer who has deposited an amount of Rs. 62,265/- towards back wages in the Labour Court, Narsinghpur, despite the fact that the award has been passed by the Labour Court reinstating the petitioner without any back wages. It be also enquired about as to why respondent No.4 has made such a casual reply full of false facts and remained failed to discharge its obligation as Officer In-charge. 30. A copy of this order be forwarded to the Chief Secretary, Bhopal, Madhya Pradesh, and the Principal Secretary, Women and Child Development Department, Bhopal, for appropriate action. Accordingly, the petition filed by the petitioner is allowed. No order as to cost.