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Madhya Pradesh High Court · body

2020 DIGILAW 301 (MP)

Shiv Kumar Kanhaua v. State Of Madhya Pradesh And Others

2020-02-26

SUJOY PAUL

body2020
JUDGMENT Sujoy Paul, J. - This order will dispose of W.P. No.5323/2018 and W.P. No.28258/2018. 2. Draped in brevity, the relevant facts are that petitioner was appointed on 1.5.1986. The petitioner was working as a "Vaidya" with respondent No.5 Municipal Council, Khurai. The petitioner was dismissed from service on 10.12.1987. An industrial dispute was raised by petitioner against said dismissal order which was ultimately decided by Labour Court, Sagar in Case No.63/89/ID Reference on 13/2/1991. The termination was held to be illegal and employer was directed to be reinstated the employee with continuity of service. Petitioner was given the status of quasi permanent employee. It was further directed to grant back wages to the petitioner. The employer aggrieved by the award of Labour Court aforesaid, filed M.P. No.2818/1993. During the pendency of said petition before this Court, the employer entered into a settlement with the petitioner and on the strength of settlement arrived at, an interlocutory application was filed in the said petition. This Court entertained the said application and permitted the employer to withdraw the petition. 3. As per the said settlement, the employer treated the entire period of petitioner as spent on duty for the purpose of qualifying service and for the purpose of considering his claim for grant of Kramonnati. Accordingly, Kramonnati benefits were extended to the petitioner from due date. The petitioner retired on attaining the age of superannuation on 31.3.2017. Thereafter, by impugned order dated 12.2.2018 (Annexure P-1), the respondent opined that the petitioner rendered regular service only for a period of 18 years 28 days. The representation of employer to treat his services as regular w.e.f. 1.5.1986 were not approved by the department or the Directorate. In absence of any such decision taken by the State Government, his regular service can be counted only from 3.3.1999 and, therefore, he was entitled for only one Kramonnati w.e.f. 3.3.2011 and was not entitled to get second Kramonnati which was granted to him w.e.f. 31.3.2017. Resultantly, the excess payment arising out of grant of second Kramonnati was directed to be recovered from the petitioner. The W.P. No.5323/2018 assails this order dated 12.2.2018 and it is prayed that while setting aside this order, the respondents be directed to treat him as a regular employee w.e.f. 1.5.1986 and restore his benefit of first and second Kramonnati with all consequential benefits. The W.P. No.5323/2018 assails this order dated 12.2.2018 and it is prayed that while setting aside this order, the respondents be directed to treat him as a regular employee w.e.f. 1.5.1986 and restore his benefit of first and second Kramonnati with all consequential benefits. In the second petition i.e. W.P. No.28258/2018, the petitioner is aggrieved by non release of pension and gratuity and prayed for a writ of mandamus for making such payments with interest on delayed payment. 4. Shri Ajit Singh, learned counsel for the petitioner in both the cases urged that sole reason for the grievance of petitioner is the impugned order dated 12.2.2018. As per order of Labour Court aforesaid, the termination order was set aside. This would mean that termination became nullity in the eyes of law and, therefore, petitioner was entitled to get the benefit for continuity of service. The respondents themselves settled the claim by entering into a settlement and, therefore, they cannot resile from the terms and conditions of the settlement. More so, when their writ petition against the aforesaid award of Labour Court was withdrawn. 5. Per contra, Shri Paritosh Gupta, learned Government Advocate for the respondents/State supported the impugned order dated 12.2.2018 and urged that for the purpose of regularizing the services of petitioner, the State Government is the competent authority. The State Government was required to take a decision on the resolution dated 1.6.1998 (Annexure R-1) and 20.5.1998 (Annexure R-2). Since State Government has not taken any decision, the employer expressed his inability to count the said period as spent on duty. No fault can be found in the impugned order dated 12.2.2018 whereby his previous services w.e.f. 01.05.1986 were not taken into account. Shri Paritosh Gupta, learned Government Advocate fairly urged that in the connected matter W.P. No.28258/2018, the Government has taken the same stand and borrowed the return filed in the connected matter. 6. No other point is pressed by learned counsel for the parties. 7. I have heard the parties at length and perused the record. 8. Indisputably, the petitioner was appointed w.e.f. 01.05.1986. The petitioner was dismissed from service and this action was called in question before the Labour Court in Case No. 63/89/ID reference. By award/order dated 13.02.1991 the termination was found to be illegal and petitioner was directed to be reinstated with continuity of service as a quasi permanent employee. 8. Indisputably, the petitioner was appointed w.e.f. 01.05.1986. The petitioner was dismissed from service and this action was called in question before the Labour Court in Case No. 63/89/ID reference. By award/order dated 13.02.1991 the termination was found to be illegal and petitioner was directed to be reinstated with continuity of service as a quasi permanent employee. The employer although preferred aforesaid writ petition before this Court, decided to withdraw it on the strength of a compromise settlement entered into with the petitioner. As per terms and conditions of settlement (Annexure-R/2), it was made clear - (i) The petitioner shall not get the benefit of arrears of pay between 01.05.1986 to 31.04.1991 (ii) The services of the petitioner shall be treated as continuous for the purpose of pension w.e.f. 01.05.1986 (iii) Petitioner shall get the pension in accordance with the said qualifying service rendered w.e.f. 01.05.1986. 9. This is a peculiar case where on the one hand the employer escaped the liability to pay entire back wages to the petitioner on the strength of the compromise (Annexure-R/2) and on the other hand not giving the other benefits arising out of said compromise to the petitioner. Putting it differently, the back wages between 01.05.1986 to 31.04.1991 which were otherwise payable as per the said order of Labour Court, were not paid by taking shelter of the compromise. On the other hand, the decision taken in the settlement to treat the services as continuous w.e.f. 01.05.1986 is sought to be altered to petitioner's detriment on the ground that this decision/settlement could not get a stamp of approval from the State Government and no consequential sanction/order passed by the State Government. This Court is unable to accept this diametrically opposite and inconsistent stand taken by the respondents. 10. The matter may be viewed from another angle. If the compromise is a nullity for want of consequential approval order passed by the State Government, there would be no valid compromise in the eyes of law. In that event, the petitioner will be entitled to get the fruits of the litigation i.e. award of the Labour Court. In that event employer will be required even to pay him the backwages between 01.05.1986 to 31.04.1991. 11. The petitioner has shown his bonafides, since a signatory to settlement he did not claim the back wages for the said period. In that event employer will be required even to pay him the backwages between 01.05.1986 to 31.04.1991. 11. The petitioner has shown his bonafides, since a signatory to settlement he did not claim the back wages for the said period. The petitioner did not make any effort to resile from his own stand which was taken in the settlement. However, the employer took a different stand which is not only contradictory, it is highly unjust, improper and capricious in nature. 12. The petitioner's services are treated to be qualifying service from the date of his initial appointment i.e. 01.05.1986. After taking such a decision, it is no more open to the respondents to deprive the petitioner from the benefit of service rendered after 01.05.1986 for first and second Kramonnati. 13. It cannot be forgotten that the Labour Court directed "reinstatement of the petitioner" with a further direction that he should be treated as a quasi permanent employee. The word "reinstatement" has a definite connotation in service jurisprudence. In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, 2013 10 SCC 324 the Apex Court candidly held as under: "21. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or W.P. No.9585/2019-2-original state; to reinstate afresh and the word"reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word"reinstate" means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority(as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word "reinstate" means to placeagain (as in possession or in a former position), torestore to a previous effective state. As per Black's Law Dictionary, 6th Edn., "reinstatement" means: To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."(Emphasis supplied) 14. As per Black's Law Dictionary, 6th Edn., "reinstatement" means: To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."(Emphasis supplied) 14. A plain reading of this para makes it clear that once an order of "reinstatement" is passed (it cannot be equated with "reappointment") the end result would be restoration of position of the employee to the position and date he was terminated from service. He will enjoy the same status which he was enjoying on the said date. Pertinently, the order of Labour Court declaring petitioner as quasi permanent was not disturbed by any higher Forum. This is not the stand of the respondents in the impugned order dated 12.02.2018 that being a quasi permanent employee w.e.f. 01.05.1986 petitioner will not be entitled for the benefit of first and second Kramonnati. Apart from this, impugned order dated 12.02.2018 is an adverse order and entails civil consequences. For this reason also, this order could not have been passed without following the principles of natural justice. 15. In view of forgoing analysis, dated 12.02.1918 is set aside. The respondents shall restore the benefits to the petitioner as if the order dated 12.02.2018 was never passed. 16. In W.P. No. 28258/2018 the respondents borrowed the stand of previous case. The impugned order dated 12.02.2018 could not sustain judicial scrutiny and therefore, this Court is unable to hold that respondents were justified in not releasing the retiral dues of the petitioner. Withholding or delay in payment of retiral dues is solely attributable to the respondents. Thus, in view of Union of India v. Justice S.S. Sandhawalia, 1994 2 SCC 240 the respondents are bound to pay the interest to the petitioner for delayed payment. Consequently, these petitions are allowed. The respondents shall restore the entire benefits which were taken away by impugned order dated 12.02.2018 within 60 days from the date of communication of this order. The entire retiral dues including pension and gratuity be paid within aforesaid period with 12% interest till the date of actual payment. In the considered opinion of this Court, these are avoidable piece of litigation. Because of highhandedness and non-application of mind on the part of the respondents the petitioner was compelled to knock the doors of this Court after retirement. In the considered opinion of this Court, these are avoidable piece of litigation. Because of highhandedness and non-application of mind on the part of the respondents the petitioner was compelled to knock the doors of this Court after retirement. Resultently, I deem it proper to direct the respondents to pay Rs. 25,000/- as cost to the petitioner which shall be paid within aforesaid period. 17. Accordingly, these petitions are allowed.