W.P. No.11158.09
Writ Petition No. 11158 of 2009
16/03/2011
Shri Gajendra Singh, learned counsel for
the petitioner.
Shri Anshuman Singh, learned counsel for
the respondent No. 2.
Challenge in this petition is to an order
dated 19-08-2009 passed by the Industrial
Court, Jabalpur, whereby Appeal No.
21/09/MPIR preferred by respondent No.
2/Municipal Corporation against the order
dated 09-02-2009 passed by the Labour Court
has been allowed.
The order dated 09-02-2009 was passed in
a proceeding under section 31(3) read with
section 61 of the M. P. Industrial Relations Act,
1960 (for short ‘the Act of 1960) whereby the
petitioner herein had sought the relief of
promotion to the post of Lower Division Clerk
and had claimed for difference of wages on
such promotion. The petitioner at the relevant
time was discharging his duty as a labour and
looking after the work of pump operation. By
order dated 09-02-2009 the Labour Court
allowed the application with a direction to
W.P. No.11158.09
respondent No.1/Corporation to promote the
petitioner as Lower Division Clerk. Against this
order an appeal was preferred by the
respondent/Corporation under section 65 of the
Act of 1960. The said appeal was allowed on
19-08-2009.
Grievance of the petitioner is that the
appellate Court without affording any
opportunity of hearing to the petitioner has
decided the appeal and set aside the order
dated 09-02-2009. It is urged that this action of
the appellate Court has greatly prejudiced the
cause of the petitioner as he had no opportunity
to defend he order dated 09-02-2009 which was
in his favour.
Learned counsel appearing for respondent/
Corporation submits that before the appellate
Court notices were tendered on the petitioner
by registered with acknowledgment due letter
and the appellate Court assuming that despite
of service of notice, the workman did not
appear, proceeded to decide the case on merit.
It is also urged that there is no inherent right
on the petitioner to seek promotion to the post
of Lower Division Clerk when the petitioner
W.P. No.11158.09
was found to be working as a labourer on daily
wages. It is urged that the approach of the
Labour Court in directing the Municipal
Corporation to promote the petitioner on the
post of Lower Division Clerk was contrary to all
canons of justice and was rightly intercepted
with by the appellate Court.
Be that as it may, in this petition we have
called upon to examine as to whether the
petitioner was afforded any opportunity of
hearing by the Industrial Court in an appeal
preferred by respondent/Corporation.
Paragraph 4 of the impugned order records
a finding regarding the issuance of notice by
registered acknowledgment due letter. The
appellate Court drew a presumption that
despite of service of notice the workman did
not turn up. The appellate Court accordingly
proceeded to hear and finally decided the
matter in absence of the workman.
Paragraph 4 of the impugned order when
examined closely would reveal that the
presumption drawn by the appellate Court that
the workman was having due knowledge of
appeal is not correct. Paragraph 4 records :-
W.P. No.11158.09
“fu;ks D rk dh vks j ls vihy is ‘ k gks u s ds ckn
fjLiks a M s a V dz e ka d – 2 yxk;r – 12 dks jftLVMZ lw p uk
i= tkjh gq v k gS A x.kd fjiks V Z vuq l kj fjLiks a M s a V ua – –
1] 2 ,oa 6 dks Hks t k x;k jftLVMZ lw p uk i= iks L Ves u
dh bl Vhi ds lkFk okil iz k Ir gq v k gS fd ryk’k
djus ij irk ugha pyk ,oa fy[ks irs ij ugha gS A
fjLiks a M s a V dz e ka d – 3] 4] 5 ,oa 7 yxk;r – 12 dks
Hks t k x;k jftLVMZ lw p uk i= iz k Ir gks tkus ds i’pkr
Hkh os mifLFkr ugha gq ; s gS a A bl iz d kj iz L rq r vihy es a
fjLiks a M s a V dz e ka d – 1 yxk;r – 12 us dks b Z i{k leFkZ u
ugha fd;k ,oa rdZ Hkh iz L rq r ugha gq ; s gS a A ”
Petitioner herein was respondent No. 1
before the Industrial Court in appeal preferred
by respondent/Corporation. Admittedly, that the
notice sent by registered acknowledgment due
was not served and was returned unserved. The
Industrial Court in our considered opinion was,
therefore, not justified in drawing a
presumption of service of notice on the
petitioner herein.
In view whereof since there was no
effective service of notice on the petitioner, the
finding of service of notice recorded by the
Industrial Court suffers from vice of perversity
and the order based on such finding is not
sustainable in the eyes of law. The impugned
order dated 19-08-2009 is, therefore, quashed.
The matter is remitted to the Industrial Court,
W.P. No.11158.09
Jabalpur, for its decision on merit afresh after
affording opportunity of hearing to the
petitioner herein. Since the workman and
management are duly represented before us, we
direct them to appear before the Industrial
Court, Jabalpur, on 27-04-2011 and no fresh
notice need be issued to the respective parties.
The Industrial Court thereafter would be at
liberty to dwell upon the matter in accordance
with law.
The petition is allowed to the extent above.
However, no costs.
(AJIT SINGH) (SANJAY YADAV)
JUDGE JUDGE
SC