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2009 Supreme(MP) 1005
A.K. Mishra and Smt. Sushma Shrivastava, JJ.
Municipal Council, Umaria v. Gopal Prasad Kacher
WP. No. 130 of 2009 (J); Decided on 8.10.2009.*
Ashok Lalwani for petitioner. Shailendra Singh for respondent.
Headnote:(1) Industrial Disputes Act, 1947 -- S. 25F -- more than 240 days service rendered in the preceding year -- services could not be dispensed with without compliance of provisions under. [Para 6]
(2) Public Servant-- satisfactory services for requisite period rendered -- employer also awarding permanent post on classification -- employee becomes permanent. 2006 (1) Vidhi Bhaswar 162 (SC) and 2006 (2) JLJ 1 (SC) followed. AIR 2006 SC 1806 distinguished. [Para 7]
(3) Evidence Act, 1872 --S. 114 -- seal of municipal council missing on summons duly served upon it n presumption under cannot be discarded. [Para 8]
(4) Public Servant--not gainfully employed during period of termination n 50% of back wages correctly awarded. [Para 9]
¼1½ vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 25p & iwoZorhZ o"kZ esa 240 fnu ls vf/kd dh lsok & mica/kksa ds vuqikyu ds fcuk lsok,a vfHk;qfDr ugha dh tk ldrhaA ¼iSjk 6
¼2½ yksd lsod && visf{kr dkykof/k ds fy, larks"kizn lsok,a nh xbZa & fu;kstd us oxhZdj.k ds vk/kkj ij LFkk;h in Hkh iznku fd;k & deZpkjh LFkk;h gqvkA 2006 ¼1½ fof/k HkkLoj 162 ¼,l lh½ rFkk 2006 ¼2½ ts ,y ts 1 ¼,l lh½ vuqlfjrA , vkb vkj 2006 ,l lh 1806 izHksfnrA ¼iSjk 7
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 114 & lE;~d :i ls rkehy fd, x, leuksa ij uxjikfyd ifj"kn dk eqækadu xk;c & mi/kkj.kk R;Dr ugha dh tk ldrhA ¼iSjk 8
¼4½ yksd lsod && i;Zoklu dh dkykof/k ds nkSjku ykHkizn :i ls fu;ksftr ugha & 5 izfr‘kr fiNyh etnwjh dk vf/kfu.kZ; ;FkksfprA ¼iSjk 9
1. Writ petition has been preferred by Municipal Council, Umaria, as against the award dated 6.5.2008 (Ex. P.6) passed by Labour Court, Shahdol in reference case No. l/I.D.Act/07 Ref.
2. On failure of conciliation the case of workman was referred for adjudication to the Labour Court with respect to termination of his services. It was claimed by the workman that he was appointed on clear vacant post of Driver in the year 1995. He had continuously rendered the services till 15.5.2005, he had acquired status of permanent Driver, thus, termination of services as per oral order was illegal. ·No retrenchment compensation was paid. The provision of Section 25-F was also not complied with. The order of termination of services was not based on departmental enquiry. The principal of "last come, first go" was not adhered to, thus, retrenchment was illegal. The workman was receiving wages of Rs.2180/- at the time of illegal retrenchment. He has remained unemployed after termination of his services, thus, prayer was made for his reinstatement along with back wages.
3. The municipal Council was served by registered post acknowledgment due but it did not appear before the labour Court, ultimately the labour Court proceeded it ex-parte and after recording evidence on the basis of oral and documentary it has found that the workman had rendered continuous services, the order of termination was illegal. The labour Court has passed the impugned award (Ex.P.6) by which labour Court has directed, reinstatement with 50% back wages. The said award has been assailed by way of filing the instant writ petition by Municipal Council.
4. Shri Ashok Lalwani, learned counsel for petitioner, has submitted that in order to assail ex-parte award, the only remedy available is byway of filing writ petition. Labour Court has not ensured that service of notice by other modes except registered post of which acknowledgment (Ex.P.3) which is on record purported to be signed by personnel of Municipal Council does not bear the seal of Municipal Council, Umaria, thus, the labour Court ought to have been cautious to ensure that other modes of services were also resorted to. As the only prayer was made that retrenchment compensation was not paid, thus, the award could have been passed for reinstatement. Only retrenchment compensation could have been ordered to be paid. He has submitted that the finding of labour Court with respect to the permanent status having been acquired by the workman could not have been recorded as permanent status could not have been acquired in the light of the decision of the Apex Court in Secretary, State of Kamataka & others v. Umadevi & others, AIR 2006 SC 1806.
5. Shri Shailendra Singh, learned counsel for respondent, has supported the award. He has submitted that there is clear averment that workman had worked on the permanent vacant post of driver inter alia the roster showing vacant post was placed on record, thus, the finding with respect to the appointment, having been made on the vacant post calls for no interference. The workman had rendered continuous service for more than 10 years, thus, services could not have been dispensed with in violation of Section 25-F of ID Act. Umadevi's case also provided for regularization and right is independent under standard standing order on avilability of vacant post, thus, no case for interference in the award is made out. The service of summon was duly affected. Inspite of services no reply was filed, thus, writ petition may be dismissed:
6. We take up first the submission of petitioner's counsel that whether the retrenchment was legally made and retrenchment was not violative of Section 25-F of ID Act. There is evidence on record to indicate that workman was employed in the year 1995 and he was removed on 15.5.2005 without payment of retrechment compensation. The workman has stated that he has rendered continous service and an order was also passed by the Chairman of Municipal Council o
