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Madhya Pradesh High Court · body

2019 DIGILAW 719 (MP)

Haripal Singh Chauhan v. State of M. P.

2019-10-04

SANJAY YADAV

body2019
ORDER 1. With the consent of learned counsel for the parties, the matter is finally heard. 2. The solitary issue which arises for consideration is whether it is lawful for the respondents not to consider the claim of the petitioner for absorption as Samvida Shala Shikshak Grade-III by not counting the period from 15.1.2001 to 16.2.2009, during which period, the petitioner remained out of service and was reinstated in service in pursuance to order dated 12.7.2016 passed in Writ Petition No. 4147/2016. 3. The issue arises from the impugned order dated 4.3.2017 which rejects the claim of the petitioner by not counting said period as service period; in other words, the petitioner is denied continuity. 4. The facts not in dispute are that the petitioner was initially appointed on 18.5.1997 as Shiksha Karmi under Shiksha Guarantee Scheme. That by order dated 15.1.2001, the services of the petitioner were terminated on certain allegations. The order was subjected to challenge in Writ Petition No. 1139/2001 (S). The Writ Petition was decided on 20.2.2007; whereby, the termination order was set aside on the findings: "4. From the facts stated above, it is clear that the impugned order has been passed without having any opportunity of hearing of show cause notice to the petitioner. Hon'ble Supreme Court in Shekhar Ghosh v. Union of India and another, (2007) 1 SCC 331 , has held that under certain circumstances, violation of rule of natural justice cannot be waived. In my opinion, the order is in violation of the rule of natural justice and this is not a fit case where rule of natural justice can be waived. 5. Consequently, petition of the petitioner is allowed. The impugned order Annexure P-1 with regard to petitioner is hereby quashed. No order as to cost." 5. In my opinion, the order is in violation of the rule of natural justice and this is not a fit case where rule of natural justice can be waived. 5. Consequently, petition of the petitioner is allowed. The impugned order Annexure P-1 with regard to petitioner is hereby quashed. No order as to cost." 5. That in furtherance to said order, the petitioner was "reinstated" by order dated 16.2.2009; the order spelt out: ÞØekd@ft-f'k-ds-@ EGS LFkk-@fof/k 2009@317 f'koiqjh fnuakd 16@2@2009 loZ f'k{kk vfHk;ku dk;kZy; ftyk f'k{kk dsUnz f'koiqjh ftyk iapk;r ds ihNs] iksgjh jksM] f'koiqjh e-iz-] fiu&473551 &vkns'k& dk;kZ- xzke ia;k;r fgMksjk[ksMh tuin iapk;r [kfu;k/kkuk f'koiqjh ds vkns'k Øekad 1&3 fnuakd 18-5-1997 ds }kjk Jh gfjiky flag pkSgku iq= Jh jfoiky flag pkSgku fuoklh&pkpksjk ckekSjdyk [kfu;k/kkuk dh fu;qfDr iq.kZr% vLFkkbZ vk/kkj ij xzke iapk;r fgMksjk[ksMh etjk nqxkZiqj ds bZ-th-,l- dsUnz esa xq:th ds in ij dh xbZ FkhA dk;kZ- xzke iapk;r fgMksjk[ksMh tuin iapk;r [kfu;k/kkuk ds i= Øekad@D;w@2000 fnukad 15-1-2001 ds }kjk Jh gfjiky flag pkSgku xq:th bZ-th-,l- dsUnz nqxkZiqj dh fu;qfDr fujLr dh xbZA vkosnd }kjk xkze iapk;r fgMksjk[ksMh ds lsok i`FkDdhdj.k vkns'k fnukad 15-1-2001 ds fo:) eku] mPp U;k;ky; [k.MihB Xokfy;j esa ;kfpdk Øekad MCyw-ih-,l- 1139@1 nk;j dh xbZA mDr izdj.k esa eku] U;k;ky; us vius vafre fu.kZ; fnukad 20-2-2007 esa Jh pkSgku dk i`FkDdhdj.k vkns'k fnukad 15-1-2001 dks fujLr fd;k x;k gSA ftlls xq:th ds iwoZ dh fLFkfr cgky gks pqdh gSA mDr izdj.k esa lfpo Ldwy f'k{kk ,oa vk;qDr jkT; f'k{kk dsUnz Hkksiky ds i= Øekad@jk-f'k-ds-@lrdZrk@2009@08 fnukad 13-2-2009 ds }kjk Jh gfjiky falg pkSgku iwoZ xq:th bZ-th-,l- dsUnz nqxkZiqj dks fo'ks"k izdj.k ekurs gq;s eku- mPp U;k;ky; [k.MihB Xokfy;j }kjk fn;s x;s vafre fu.kZ; fnuakd 20-2-2007 ds ikyu esa Jh pkSgku dks lsok esa cgky fd;s tkus gsrq dysDVj ds ek/;e ls xzke iapk;r dks funsZf'kr fd;s tkus ds funZs'k iznRr gSA jkT; f'k{kk dsUnz }kjk f'k{kk xkajVh ;kstuk 30 twu 2002 ls iqujhf{kr dh xbZ gS] ftlesa xq:th ds lanHkZ esa laiw.kZ vf/kdkj ftyk bZ-th-,l- lfefr dks fn;s x;s gS] ftlds v/;{k dysDVj gSA vr% mDr vkns'k ds ifjikyu esa Jh gfjiky flag pkSgku dks bZ-th-,l- etjk fgMksjk[ksMh tuin iapk;r [kfu;k/kkuk esa xq:th ds in esa fu;qDr fd;k tkrk gSA ;g vkns'k rRdky izHkko ls ykxw gksxkA ¼dysDVj ,ao ftyk fe'ku lapkyd egksn; }kjk vuqeksfnr½ eq[; dk;Zikyu vf/kdkjh ftyk iapk;r f'koiqjh ,oa ftyk ifj;kstuk lapkyd ftyk f'k{kk dsUnz f'koiqjhß 6. Careful reading of the order dated 16.2.2009 reveals that the petitioner was reinstated in service and as per decision in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. & Others [ (1979) 2 SCC 80 ] in case where the direction is for reinstatement, the natural consequence would be that incumbent is entitled for continuity of service. 7. In M/s. Hindustan Tin Works (supra), it is held: "9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneo-usly deprived workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself through-out the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workman's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U. P. Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal, [(1971) 1 LLJ 506 (Guj.)] and a Division Bench of the Allahabad High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court 11, Lucknow & Ors. [(1971) 1 LLJ 327], have taken this view and we are of the opinion that the view taken therein is correct." 8. [(1971) 1 LLJ 327], have taken this view and we are of the opinion that the view taken therein is correct." 8. In the case at hand, since the petitioner was reinstated by order dated 16.2.2009, he earned continuity of service from the date his services were terminated (15.1.2001) till reinstate-ment, i.e., 16.2.2009. 9. It is revealed from the record that the State Government caused a substitution of sub-rule (3) in rule 7A of Madhya Pradesh Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005, in the terms vide Notification No. F-1-7-2013-XXII-P-2, dated 30.12.2013: "(3) The Gurujis and supervisors who are presently working under Madhya Pradesh Education Guarantee Scheme may be employed on the post of Samvida Shala Shikshak Grade-III without taking examination, as per procedure as may be determined by the Government." 10. The procedure for appointment was laid down by State Government vide order No. F-44-6/2014/20-2, dated 10.2.2014 wherein as per clause (v) (3), continuity of receiving honorarium from the initial date of appointment which must be prior to 19.7.2005 was made one of the imperative conditions. The said clause stipulates: Þ¼3½ fujUrjrk%& fu;qfDr@vuqca/k dh fnukad ls tks fd 19-7-2005 ds iwoZ dh gks ls orZeku rd fu;fer ekusn; izkIr fd;k gks] ,sls xq:th gh lafonk 'kkyk f'k{kd Jss.kh&3 esa fu;kstu ds ik= gksxsaA f'k{kk xkajVh 'kkykvksa esa dk;Zjr~ xq:th fd lsok fujUrjrk dh iqf"V lacaf/kr fodkl[k.M lkszr dsUnz@ftyk f'k{kk dsUnz }kjk ekuns; Hkqxrku gsrq ekfld mifLFkfr ,ao ekuns; ds lR;kiu i=akd ls gh dh tkosAß 11. As the petitioner was out of service from 15.1.2001 till 16.2.2009, he has been denied the appointment as Samvida Shala Shikshak. As the petitioner was out of service from 15.1.2001 till 16.2.2009, he has been denied the appointment as Samvida Shala Shikshak. This is the reason which finds mention in impugned order: Þpwafd Jh gfjiky flag pkSgku fnukad 15@1@2001 ls iqu% cgkyh fnukad 16@2@2009 rd xq:th ds in ij ugh jgs ,ao u gh ekuns; izkIr fd;kA tcfd eË; izns'k 'kklu Ldwy f'k{kk foHkkx ds i= Øekad ,Q&44&6@2014@20&2 Hkksiky fnuakd 10@2@14 ds funsZ'kksa ds vuqlkj dsoy os gh xq:th lafonk 'kkyk f'k{kd ds in ij fu;kstu ds fy;s ik= gksaxs tks 19@7@2005 ds iwoZ ls fu;qDr gksa vkSj ftuds }kjk fnuakd 19@7@2005 ls orZeku rd xq:th ds in ij fu;fer :i ls ekuns; izkIr fd;k gksA vr% 'kklu }kjk fu/kkZfjr ekin.Mksa dh iwfrZ u gks ikus ds dkj.k Jh gfjiky flag pksgku xq:th 'kk-izk-fo- nqxkZiqj ¼y[kkjh½ fodkl[k.M [kfu;k/kkuk ftyk f'koiqjh dk fu;kstu lafonk f'k{kd oxZ 3 ds in ij ugha fd;k tk ldrkAß 12. Evidently, the termination of the petitioner on 15.1.2001 was found to be illegal resulting in his reinstatement which resulted in continuity in service as per law laid down in M/s. Hindustan Tin Works (supra). As the granting of back-wages is the sole discretion of the Court, the non-grant of back-wages to the petitioner from 15.1.2001 till 16.2.2009, in the considered opinion of this Court, will not wipe off the continuity of service which is what the prime object is under clause (v) (3) of order dated 10.2.2014. 13. When the impugned order is tested on the anvil of above analysis, the same cannot be given the stamp of approval. 14. Consequently, the impugned order dated 4.3.2017 is set aside. The respondents are directed to pass suitable order treating the period from 15.1.2001 to 16.2.2009 as duty period. 15. Let the order be passed within three months from the date of communication of this order. 16. The petition is disposed of finally in above terms. No costs.