r-' ^^^ s '^ IN THE HIGH COURT OF JUDICATTJRE AT JABALPUR' WITT FETITION N0*^^-^"^ /1998 -'^ PETITION^. RESPONDENTS Shri E* Satyanarayan, aged 55 years^ Son of Shri Venkanna^ Assistarit Manager (Handloom.s) y M.P. State Textile Corporation Ltd., Chhatisgarh Bunlcer Sangh Bhawan; Aanapsra, Raipi-ir - 492 001 (M.t>.). Yersus L21 M.Po State Textile Corporation Ltd^ (A Govt. of M.P. Undertsking), Through; its Managing ©irector, Floor, 3 & 6 AC, Gangotn CompLex^ T.T» Wagar^ Bhopal (M.P»)o Shri K.P, Singh, ^" Managing Directory M.P.State T^xfciLe Corporation Ltd., Floor 5 & 6 AC, Gangotri^ Complex^ T.T. Nagar, Bhbpal CM»P»)• miT PETZTION UNDER 'ARTICLE 226 OF THE CONSTITUTION OF ^DI^-.£S-IS§^2S-o£-¥RF£-.IS-.SSE^T^£^S-9£Jl^i^ff§A CERTICR^i ETC. AND FOFl FIMTI-IER APPROPRIATE WtlT IN REL.ATION TO BAQC VJAGES ^ HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. ^- PETITIPNER RESPONDENTS Writ Petition No.5276/1998 Shri E. Satyanarayan Versus M.P. State Textile Corporation Ltd. and another ORDER POST ON y "SEFTEMBER, 2010 Sd/- Manindra Mohan Shrivastava Judge ^ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. r PETITIONER RESPONDENTS Writ Petition No.5276/1998 Shri E. Satyanarayan Versus M.P. State Textile Corporation Ltd. and another Appearance: Dr. N.K. Shukla, Sr. Advocate with Ms. Ritu Mishra, counsel for the petitioner. Shri Abhishek Sinha, counsel for the respondents. ORDER (Passed on 4 .09.2010) 1. This petition is directed against the order dated 21st/27th October, 1998 of the Managing Director of respondent -Corporation, by which the back wages in respect of the period from 17th January, 1989 to 20th December, 1996 have been denied on the ground that the petitioner was engaged in business during period from 17th January, 1989 to 20til December, 1996. 2. Facts, in brief, necessary for determination of the issue involved in this petition are that the petitioner, while under employment of respondent No.l, was subjected to disciplinary action, which culminated in issuance of an order of penalty of dismissal passed on 17th January, 1989. The same was challenged before the High Court of Madhya Pradesh in M.P. No.569/89, which was fmally disposed off vide order dated 30th October, 1996. The order of punishment was quashed and ^. >:\ -2- ^^3 'l "/ '^^^;i i.^^^^,^ 1 Z.3 the petitioner was reinstated in ser^ice. In so far as back wages are concerned, it was ordered that the respondent employer shall issue a notice to the petitioner and hold an enquiry into the matter whether he was gainfully employed elsewhere or not during the intervening period from the date ofdismissal to the date of re-instatement and on the result of enquiry suitable orders with regard to payment of back wages be passed. 3. Thereafter, the petitioner was reinstated in service and Enquiry Officer was appointed. The petitioner was given a notice in response to which the petitioner submitted his affidavit and other documents in support of his claim that he was not gainfully employed. In the meanwhile, the Enquiry Offlcer was also changed. As the matter was not finalized, the petitioner again approached the Court by filing Writ Petition No.2006/1998, which was fmally disposed off videorder dated 14.5.1998 with direction to pass orders within 3 months. Finally, the impugned order came to be passed, wherein, the petitioner was informed that he is not entitled to back wages as it has been found that during the period in question, he was engaged in a business. 4. Assailing the aforesaid order and actiori of denial of back wages, learned senior counsel appearing for the petitioner argued that neither a proper enquiry was made nor due and proper hearing was afforded. It is submitted that though the Enquiry Officer was appointed, the Enquiry Officer himself did nothing, but the entire matter for enquiry was outsourced to a private detective agency, which made some enquiry and submitted a report, which has been made a basis in denying back wages. Learned counsel for the petitioner further submitted that the respondents did not even supply to the petitioner -3- ^o copy of the fact finding report submitted by the private agency, which resulted in violation of principles of natural justice as also violation of Court's order, wherein, it was directed that enquiiy with regard to back wages shall be held by giving a notice to the petitioner. It is submitted that instead of handing-over the matter to a private agency, the Enquiry Officer himself ought to have held the enquiry. Further submission of learned counsel for the petitioner is that even in the report which has been submitted by a private agency, all that has been stated is that the petitioner was helping his ailing father in the cloth business and there is nothing to show that the petitioner was gainfully employed and getting any salary from his father. Therefore, there is no evidence of gainful employment and consequently, the petitioner is entitled to full back wages in respect of the entire period during which he was out of servrice i.e from 17th January, 1989 to 20th December, 1996. p 5. Per contra, submission of learned counsel for the respondents is that a due and proper enquiry in compliance of the order of Hon'ble Court was made. The petitioner was given notice and was afforded opportunity. The petitioner did participate in the enquiry. It is further submitted that the enquiry was held in compliance of the order of Hon'ble High Court of Madhya Pradesh and it was not governed by any specific provisions of the Servrice Rules and, therefore, fact finding enquiry, collection of evidence through private detective agency is quite permissible. According to learned counsel for the respondents, the petitioner himself in the petition has stated that it was not meant to be an exhaustive enquiry, but only a simple enquiry with regard to gainful employment. It is further argued that the petitioner himself does not -4- \^\ ^^i dispute the fact that he was working with his father in the cloth business and, therefore, it is clear that he was earning out of the cloth business during the period he was out of employment. In the submission of learned counsel for the respondents, this by itself is sufficient to justify the action of the respondents in refusing to grant any back wages. He further submits that the Hon'ble Court though directed the enquiry to be held with regard to gainful employment, a discretion was given to the employer to pass suitable orders with regard to payment of back wages. In the circumstances, where it was revealed that the petitioner was working with his father in cloth business, the employer found it not to be a fit case for grant of back wages. Learned counsel for the respondents argued that the petitioner is not entitled to back wages as of right, but it will depend on various circumstances. A relevant circumstance revealed during the enquiry and which is not disputed by learned counsel for the petitioner is that he was working with his father in cloth business and therefore, taking that relevant circumstance into consideration, back wages have been denied by the employer in its discretion. It does not call for any interference by this Court under Article 226 of the Constitution of India. 6. Learned counsel for the respondents during the course of argument has raised another objection with regard to maintainability of the petition by submitting that as no part of cause of action arose in Chhattisgarh, this Court has no territorial jurisdiction to entertain the petition. Reliance has been placed on the judgment of Supreme Court ^—' -5- l3> "L^ in the case of State Bank of Patiala & Ors. Vs. Vinesh Kuniar Bhasin1 7. I have considered the rival submissions made by learned counsel for the parties and perused the records. 8. Before I advert to merit of the case, the submission made by learned counsel for the respondents with regard to territorial jurisdiction of this Court needs to be answered. This petition was filed before the High Court of Madhya Pradesh in the year 1998. There was no occasion for the respondents to raise any such objection with regard to territorial jurisdiction in view of the facts of the case floating on its surface which clearly shows that the cause of action did arise within the territorial jurisdiction of the High Court of Madhya Pradesh on the date when the petition was flled. Upon reorganization of the State, in view of the provision contained in the Madhya Pradesh Reorganization Act, 2000, (hereinafter referred to as uthe Act of 20009)), this case was transferred to this Court. If in the changed circumstance, respondents had any objection with regard to the territorial jurisdiction, it should have been raised in writing giving the petitioner an opportunity to rebut the same. It was only during the course of argument that the learned counsel for respondents raised such an objection. It has to be noted that Section 30 of the Act of 2000 contains statutory scheme regarding transfer of cases from High Court of Madhya Pradesh to High Court of ChhattisgarK. In the absence of any factual foundation laid in a properly constituted pleading supported by any affidavit, the objection raised by learned counsel for (2010) 4 SCC 368 •M' . -6- i,^y p3 the respondents with regard to territorial jurisdiction of this Court deservres to be rejected and is accordingly rejected. In the peculiar facts and circumstance in which this petition came to be transferred to this Court upon re-organization of State, decision in the case of State Bank of Patiala (supra) is distinguishable on facts and not applicable. 9. Vide order dated 30th October, 1996, the order of dismissal of the petitioner passed on 17.1.1989 was quashed and the petitioner was reinstated in servrice. A liberty was reserved to the respondent employer to proceed against the petitioner for the alleged misconduct by holding a departmental enquiry in accordance with rules. As far as back wages are concerned, the High Court directed that a notice shall be issued to the petitioner and enquiry shall be held into the matter whether the petitioner was gainfully employed during the intervrening period from the date of dismissal to the date of reinstatement and on the result of that enquiiy, suitable orders with regard to payment of back wages were required to be passed in view of the order of the High Court. 10. The petitioner has stated in his petition that notices were given to the petitioner by the Enquiry Officer appointed and information were sought from the petitioner. The petitioner himself has pleaded that he submitted his affidavit and other certificates pursuant to the notice given to him. From the return of the respondents, it is clear that after giving the notice to the petitioner and receiving information/reply/affidavit submitted by the petitioner, considering that the petitioner, during the period he remained out of employment, resided at a far-off place, services of private agency namely Industrial Army were taken and the evidence, certificates etc. submitted by the "\ -7- -'^ :^-"' \^\ petitioner were forwarded. The said Agency went to the home town of the petitioner and made an enquiry and also recorded statements of father and brother of the petitioner. The report stated that during the period the petitioner was out of employment, he stayed in his father's house along with his wife and children and helped his father in cloth business. From the statement of petitioner's brother, it was revealed that the petitioner was sitting in his father's cloth shop and helping his father's cloth business during the period from 1989 to 1996 at Pendurthi. Father of the petitioner was reported to be a cancer patient suffering since 1989. The said Investigating Agency fonvarded its report along with the statement of the father, brother and neighbours along with the medical report of illness of his father. In the light of aforesaid material collected, the respondent-employer found that as the petitioner was associated in business and therefore back wages have been denied. 11. In the rejoinder filed by the petitioner, the petitioner has not disputed the fact that he helped his father in his cloth business. The petitioner's objection to the enquiry made by Agency and decision taken thereupon is based on the submission that the entire enquiry ought to be held by the Enquiry Officer only and the said report of enquiry ought to be supplied to the petitioner. The petitioner has also not disputed that his father was suffering from cancer and his brother was already engaged in an employment. The petitioner has stated that the report does not disclose that any monthly emolument was paid to the petitioner by his father. It has also been stated by the petitioner that doing the business of the father does not go on to reflect that the petitioner was having some alternative source of livelihood and it could not be said to be a •^^1'^ !i:i?i..^^i ^"Y. .^ -8- ^s case ofgainful employment. From petitioner's letter dated 12th October, 1998 (Annexure P-17), it is disclosed that it was within the knowledge of the petitioner that enquiry is being made and the statements of petitioner's father and brother have already been recorded. In the said letter, the petitioner stated that he has not b'een communicated the result of enquiry and requested the respondents to pass necessary orders for releasing of back wages. 12. It has to be noted that the enquiry which was held by the employer was necessarily a fact finding enquiry with regard to gainful employment under the direction of the Court and it was not meant to be a regular departmental enquiry. The petitioner was given an opportunity to submit his own version by the Enquiry Officer appointed by the respondent employer and the petitioner did submit his affldavit, certificates etc. The employer, thereafter, got an enquiry held by an Agency and came to the conclusion that the petitioner was associated in a business. 13. Taking into consideration the nature of enquiry held, I am not inclined to brush aside the material collected by employer only on the ground that the fact finding enquiry was got conducted through a private agency, particularly when the petitioner having come to know that a report has been submitted, did not raise any specific demand for copy of report, but requested the authority to communicate the result and take decision and pass necessary orders regarding back wages. In the rejoinder also, the petitioner has not disputed following facts: (a) that during the period from the date of his termination till his reinstatement he was sitting with his father and helping his father in his cloth business. L:^-^:i^ -9- \3^> (b) that his father was suffering from cancer since 1989. (c) that his brother was in employment and working in a Steel Factory. 14. It has therefore to be seen whether the action of the respondents in denying back wages on the basis of the material collected by it through in the enquiry was just and proper. As the most material facts collected during enquiry though by a private agency have not been disputed by the petitioner, the decision of the employer does not call for any interference only on the ground that there was some defect in the enquiry or that the enquiry was conducted by a Private Agency or that copy of enquiry report was not supplied to the petitioner. 15. The next aspect which requires consideration is as to whether the petitioner engagement and association with his father in running cloth business could be made a basis to deny back wages. The respondents employer has drawn an inference of petitioner's gainful employment on the basis that the petitioner was associated with his father in cloth business. In the opinion of this Court, such an inference drawn by the employer on preponderance of probabilities that the petitioner was gainfully employed as he was working with his father in cloth business cannot be said to be so outrageous or arbitrary as to warrant interference by this Court under Article 226 of the Constitution of India. Considering the nature of enquiry made by the employer, which only related to an aspect of gainful employment of the petitioner, the inference of gainful employment from the material available with the respondents, cannot be said to be without any basis. Paragraph -2 of the rejoinder of the petitioner is worth mentioning and is reproduced as under: v^ -10- \y^ <<2.....Doing the business of the father does not go on to reflect that he was having some alternative source of livelihood. Thus, the only evidence that could be gathered by the Investigating agency was that the petitioner was helping his father. This cannot be said to be a gainful employment so as to reject the claim for back wages.?? This clearly is an admission on the part of the petitioner that the petitioner was helping his father and doing the business of his father. In the cae of North- East Karnataka Road Transport Corporation Vs. M. Naeaneouda, (2007 (2) SLR 205) , it has been held that gainful employment includes self-employment. Therefore, the employer is justified in arriving at conclusion that the petitioner was associated in the business ofhis father during the period he was out of employment. 16. It cannot be ignored and even though the employer was given an opportunity by the Court to hold fresh departmental enquiry against the petitioner, employer chose not to proceed against the petitioner and the petitioner was reinstated in service and the chapter was closed. 17. The last question which survrives for consideration is as to whether on the basis ofmaterial collected and having found that the petitioner was helping his father in the cloth business, employer was justified in denying entire amount of back wages to the petitioner. Though, the employer was justified in drawing an inference that during the period the petitioner was out of employment, he associated and helped his father in his business, denial of the entire amount of back wages is not justifled. Though ordinarily, this Court would have directed another round of enquiry to be made with regard to aforesaid aspect, but taking -11- '.-^ "s>^,/ 13 Prnvmi into consideration that this petition itself has remained pending since 1998 and that the respondents did not initiate fresh enquiry in exercise of liberty granted to them by the Court, in the opinion of this Court ends of justice would be served if the respondents are directed to pay 25 per cent of back wages to the petitioner. 18. Consequently, it is directed that the respondents shall pay 25 per cent of the back wages to the petitioner. 19. Petition is accordingly partly allowed. There shall be no orders as to costs. 1 Manindra Mohan Shrivastava Judge k<