Termination deemed unlawful when employer fails to present evidence; reinstatement and back wages are justified under social welfare legislation.

ORDER :

1. This petition has been filed under Article 226/227 of the Constitution of India by the petitioner challenging the legality, validity and propriety of award dated 30.05.2004 passed by the Labour Court in Case No.227/2001, by which the respondent no.1 was directed to be reinstated on the post of peon with all consequential benefits as claimed by the respondent no.1.

2. The facts, as detailed in the petition reflect that the respondent/workman, had approached the Labour Court disputing termination of services. The Labour Court, vide impugned award, which is contained in Annexure-P/1, has issued direction for reinstatement of the workman as well as grant of 50% back wages.

3. Counsel for the petitioner contended that the award passed by the Labour Court is unsustainable inasmuch as the Labour Court has travelled beyond the scope of reference. It is contended by counsel that the reference which was referred to the Labour Court, did not contain any whisper regarding the grant of minimum wages yet, in operative part of the award, there is a direction to grant minimum wages to the workman. Further contention of the counsel that the workman in the present case was employed elsewhere and in order to demonstrate, document which was contained in D/1 was submitted along with the Statement of Claim. Said document was not disputed by the workman in his testimony and therefore, it was the burden upon the workman to establish before the Labour Court that he was not gainfully employed elsewhere. However, there was utter failure on the part of the workman to establish the same, therefore, there could not have any award of back wages and in support of his contention strong reliance has been placed on the decision of Division Bench of this Court in the case of Munni Bai Sen Vs. M.P. State Agriculture Marketing Board , 2019 (4) MPLJ 173 . Further contention of the counsel for the petitioner is that petitioner no.2 is not a Statutory Body constituted under any Act and is no more in existence. Petitioner no.2 was constituted in terms of Annexure-P/2 and there is a circular which was issued by the Department of School Education, by which, the provisions were made to constitute Shala Vikas Samiti and, the said Samiti is not permanent in nature. The said entity worked for the time being, and as such, no liability of reinstatement and pay wages could have been fastened upon the petitioner no.2. It is the further contention of the learned counsel that there has to be finding as regards the employment during the period of termination but there are no finding by the Labour Court so as to warrant the award pertaining to the back wages.

4. Per contra, counsel for the respondent submits that the documents which have been filed along with the petition were not produced before the Labour Court. The Employer did not adduce any evidence either oral or documentary, which is evident from the perusal of the award, therefore, the document which are being sought to be relied upon along with the memorandum of the petition, cannot be taken note of. It is further contended by counsel that the Labour Court was only required to answer the reference. The reference was never questioned by the petitioner at any point of time, therefore, the reference which was forwarded in terms of section 7 of the Industrial Disputes Act, 1947, already attained finality and, at this stage, interference with the award is impermissible. It is further contention of the counsel that this is not within the scope of Articles 226/227 of the Constitution of India to interfere with the award and this aspect has already been dealt with by Apex Court in the case of Jasmer Singh Vs. State of Haryana & Another,