1 WP (S) No.7168/2011 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE D.B.: Hon'ble Shri Shantanu Kemkar & Hon'ble Shri Prakash Shrivastava, JJ. Writ Petition (s) No.7168/2011 Ujjain Development Authority Versus Kailash Ghavri s/o Shri Laddu Singh Ghavri * * * * * Shri AK Sethi, learned Senior Counsel with Shri Harish Joshi, learned counsel for the petitioner. * * * * * O R D E R (Passed on this 24th day of November, 2011) Per Shantanu Kemkar, J. By this petition, the petitioner has challenged the award dated 04.05.2011 passed by the Labour Court, Ujjain in case No.55/2009 ID Reference, whereby the Labour Court has directed reinstatement of respondent, without back wages. 2. Brief facts necessary for disposal of this petition are that the respondent/workman worked as a daily wager under the petitioner from 01.02.1996. His services were dispensed with on 12.05.2000. Aggrieved, the petitioner approached to the Deputy Labour Commissioner of the State Government under the Industrial Disputes Act, 1947 (for short, the Act) for conciliation. On failure of conciliation proceedings, the Deputy Labour Commissioner referred the 2 WP (S) No.7168/2011 dispute under Section 10 of the Act to the Labour Court, Ujjain. The Labour Court, Ujjain after giving opportunity to the parties to complete the pleading and to lead evidence, passed the impugned award dated 04.05.2011 whereby the respondent/workman has been ordered to be reinstated, without back wages. Feeling aggrieved, the petitioner/employer has filed this petition. 3. It has been contended by the learned Senior counsel for the petitioner/employer that on the basis of bald statement of the respondent, that he had worked for more than 240 days in the year preceding his termination, the Labour Court has committed error in recording the finding that he had worked for 240 days in the year. He argued that in the absence of any cogent evidence in support, the Labour Court could not have recorded such finding. He placed reliance on the judgment of the Supreme Court in the case of Rajasthan State Ganganagar S. Mills Limited v. State of Rajasthan & another [(2004) 8 SCC 161] and in the case of Manager, RBI, Bangalore v. S. Mani and others [2005 AIR SCW 1729] in support of his contention. He also contended that the Labour Court, instead of ordering for reinstatement, should have ordered for payment of compensation to the respondent, keeping in view the fact that he was merely a daily wager. To support this contention, he placed reliance on the judgment of the Supreme Court in the case of Jagbir Singh v. Haryana 3 WP (S) No.7168/2011 State Agriculture Marketing Board and another [(2009) 15 SCC 327]. 4. On going through the impugned award, we find that in order to prove his case, the respondent examined himself. He had deposed that he was working since 01.02.1996 and had worked for more than 240 days in the year prior to termination of his services on 12.05.2000. He stated that he has not been paid the requisite amount of retrenchment compensation; the employees, who were appointed after him, have been retained; and no procedure for retrenchment, as provided under the Act, has been followed. In rebuttal, the petitioner/employer examined one witness Chandrakant Patel. He did not dispute that the respondent/workman was working since 01.02.1996 till his termination. He, however, stated that he never worked continuously for 240 days in the year preceding to his termination. He deposed that the petitioner had paid one month's notice pay and retrenchment compensation to the respondent. 5. The Labour Court initially in paragraph 7, though has stated that termination of the respondent is not illegal retrenchment, but thereafter, on further discussion and on detailed appreciation of the evidence, recorded a finding in favour of the respondent that he had worked for more than 240 days in the year and that he had worked for more than five years. The Labour Court has also recorded a finding 4 WP (S) No.7168/2011 that retrenchment compensation amount, which was paid to the respondent/workman was less than the amount, for which he was entitled for. A finding has also been recorded by the Labour Court that number of employees, who were appointed after appointment of the respondent, have been retained and there is violation of the principles of “last come first go”. Having recorded these findings, the Labour Court directed the reinstatement of the respondent, without back wages, taking note of the fact that the respondent was a daily wager. 6. In the case of Rajasthan State Ganganagar S. Mills Limited (supra), the Supreme Court found that the Labour Court had failed to notice that even if the period stated by the workman is taken into consideration, requirement of 240 days work during the twelve months preceding the alleged date of termination, prima facie does not appear to be fulfilled. On the basis of this factual foundation, the Supreme Court remanded the matter to the Labour Court. In the case of Manager, RBI (supra), the workman had failed even to make a statement on oath to substantiate his pleading that he had worked for more than 240 days. Whereas, in the present case, the workman had made a categorical statement that he had worked for more than 240 days in the year preceding to his termination. His evidence that he was working since 01.02.1996 till 12.05.2000 also remained un-rebutted. The petitioner's 5 WP (S) No.7168/2011 witness, on the other hand, has stated that: - “gekjs ;gkWa tks deZ0 dke djrs gSa mldh mifLFkfr ,oa osru dk fjdkMZ j[kk tkrk gS izkFkhZ dk Hkh fjdkMZ j[kk x;k gksxk A ;g lgh gS fd mDr fjdkMZ ns[kus ls ;g Kkr gks tkrk fd izkFkhZ us 96 ls 12-5- 2000 rd fdl o"kZ esa fdrus fnu dke fd;k gSA ;g lgh gS fd mDr fjdkMZ gekjs }kjk dksVZ esa is'k ugha fd;k A mDr fjdkMZ U;k;ky; esa is'k ugha djus dk dkj.k esaS ugha crk ldrk A” He also admitted that prior to termination of service of the respondent, no permission was sought from the Labour Commissioner. 7. Thus, in our considered view, the workman having discharged the initial burden and on the basis of statement of the employer's witness, as extracted above, the Labour Court has not committed any error in drawing an adverse inference for non-production of relevant record by the petitioner. The respondent's termination being ordered without following the procedure prescribed under Section 25-F of the Act, inasmuch as the compensation was not paid equivalent to fifteen days average pay for every completed year of continuous service, no notice to the appropriate Government in the prescribed manner was given, the same is an illegal retrenchment as held by the Supreme Court in the case of Krishna Bahadur v. M/s. Purna Theatre and others (AIR 2004 SC 4282) and as such, has rightly been set aside by the Labour Court. 6 WP (S) No.7168/2011 8. As regards the plea that instead of reinstatement the Labour Court should have awarded compensation, we find that in the case of Jasbir Singh (supra), the Supreme Court taking into consideration the short tenure of service of the workman, which was about eleven months, ordered for payment of compensation in place of reinstatement. Whereas, in the present case, the respondent/workman had worked for more than four years, and therefore, looking to the tenure of service if the Labour Court has ordered for reinstatement, in our view, no error has been committed by the Labour Court. 9. Thus, we find no ground to interfere in the award passed by the Labour Court ordering reinstatement of the respondent without back wages in this petition under Article 227 of the Constitution of India. Accordingly, the petition fails and is hereby dismissed. No order as to costs. (Shantanu Kemkar) (Prakash Shrivastava) Judge Judge Pithawe RC