NAFR HIGH COURT OF CHHATTISGARH, BILASPUR W.P.(L) No. 133 of 2014 Reserved on 04.12.2025 Pronounce on 03.03.2026 Uploaded on 03.03.2026 Sanjeev Tripathi S/o Shri Awadh Narayan Tripathi Aged About 40 Years R/o House No. 16/218, New Mandi Ward, Lodhipara Chowk, P.S. Pandri Raipur , Distt. Raipur C.G. Chhattisgarh --- Petitioner Versus 1. Grasim Cement And Ors. S/o Through Its Vice President Post Rawan, Tahsil Simga, Distt. Baloudabazar C.G., 2. State Industrial Court, Chhattisgarh, Nagar, Ghari Chwok, P.S. Civil Line, Raipur , Distt. Raipur C.G. 3. Labour Court No.2, Through Presiding Officer C/o Labour Court No. 1, Anand Nagar, Ps Telibandha, Raipur Distt. Raipur C.G. --- Respondents Cause Title is taken from CIS system __________________________________________________________________ For Petitioner : Shri Sudeep Johari and Shri J.K. Gupta, Advocates. For Respondent No. 1 : Shri Ashish Shrivastava, Senior Advocate assisted by Shri Rahul Ambast, Ms. Shatabdi Bagchi and Shri Ishaan Singh Rathore Advocates. __________________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment This writ petition has been filed by the petitioner challenging the order dated 19.03.2014 passed by the State Industrial Court, Raipur (C.G.) in Civil Appeal No. 09/CGIRAct/A/II/2013 by which the appeal filed by the petitioner was dismissed affirming the order dated 04.02.2013 passed by Labour Court No.2, Raipur in New Case No.07/2011 C.G.I.R. Act Old Case No. 66/1996 CGIR Act by which the application of the ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2026.03.03 18:42:01 +0530 -2- petitioner filed under Section 31(3) read with Sections 61 and 62 of MP/CG Industrial Relation Act, 1960 (for short “Act of 1960”) was dismissed. 2. The facts which emerge from the record are that the petitioner was appointed by respondent No.1 as Trainee Electrician vide order 25.11.1994 (treating joining with effect from 07.11.1994 as mentioned in the order itself) on monthly wages of Rs. 1,500/- initially for a period of one year, further extendable depending on satisfactory performance, and thereafter he joined his services and he worked as such continuously for more than fifteen months and as such was entitled to be declared as regular permanent employee. However, on 30.03.1996 the petitioner was inflicted the punishment of one day suspension without giving an opportunity of hearing. Further case of the petitioner is that on 06.04.1996 he suffered an injury on his leg during work and for that he received treatment in the hospital of respondent No.1 and also took two day rest for 08.04.1996 and 09.04.1996. On 11.04.1996, the petitioner reported on duty with the requisite medical certificate but he was not allowed to join. On 11.04.1996 a show cause notice was issued to the petitioner asking him to explain in writing within 72 hours of its receipt as to why disciplinary action should not be taken against him. The show cause notice also mentions that if the explanation did not come from the petitioner within the stipulated time, it would be assumed that he had nothing to say and the matter would be dealt with accordingly without any further reference to him. Reply to the show cause notice was submitted by the petitioner on 18.04.1996. According to the petitioner, even thereafter on many occasions he presented himself in the establishment of respondent No.1 but he was not allowed to work. Thus according to the petitioner his services orally came to be terminated on 09.04.1996. On 18.07.1996, the petitioner filed an application before the Labour Court, Raipur under Section 31(3) read with sections 61 and 62 of the Act of 1960 with a prayer to regularize his appointment as Trainee Electrician, for declaring the order dated 11.04.1996 (which in fact is a show-cause notice) as illegal and for release of the salary withheld by order dated 12.04.1996. Subsequently, by way of amendment the petitioner also sought for setting aside the order of termination dated 19.04.1996. It is -3- relevant to note here that the amendment allowed by the Labour Court on 16.10.1996 was subsequently set aside by the Industrial Court on 21.08.1998, and the said order did not ever come to be challenged. 3. The respondent No.1 then entered its appearance and denied the averments of the petitioner. Though it has admitted that the petitioner was appointed for a period of one year as Trainee Electrician, it was pleaded that his services were terminated on 19.04.1996 but in the application filed before the Labour Court, termination of his services was not challenged and only the relief of regularization was sought. It is pleaded that as the services of the petitioner were terminated, he no more remains an employee as defined under Section 2(13) of Act of 1960. It is further pleaded that the performance of the petitioner was not satisfactory and that he often remained absent from duty unauthorizedly. It is averred that the services of the petitioner were not terminated by an oral order, rather it was done by an order in writing dated 19.04.1996. It is further pleaded that the application seeking regularization and for setting aside the show-cause notice dated 11.04.1996 cannot be subjected to challenge, and that the petitioner has failed to challenge the order of termination dated 19.04.1996. It is averred that in fact the petitioner refused to accept the said termination order. Being all this, it is submitted that the petitioner is not entitled to any relief as claimed. 4. On the basis of above broad pleadings, learned Labour Court framed the following issues. (i) Whether the order dated 11.04.1996 issued by the non applicant is illegal and inappropriate? (ii) Whether the non applicant is liable to pay the salary of the petitioner which was withheld from 12.04.1996? (iii) Whether as per the definition provided in Section 2(13) of the Industrial Relations Act, the petitioner cannot be treated as an employee? 5. After assessment of the material on record, learned Labour Court dismissed the claim of the petitioner vide order dated 04.03.2013, which subsequently was subjected to challenge by way of appeal by the petitioner before learned Industrial Court, Raipur. -4- Vide impugned order dated 19.03.2014 the appeal filed by the petitioner also stood dismissed, and it is this order which is under assail in the present writ petition. 6. Learned counsel for the petitioner submits that both, the Labour Court as well as Industrial Court have committed an error of law in holding that as the petitioner has not challenged his termination order dated 19.04.1996, the relief claimed by the petitioner could not be granted. He submits that the order passed by respondent No.2 affirming the order of respondent No.3 is patently illegal and not based on the merits of the case. He submits that since subsequently by way of amendment the petitioner has deleted the relief of regularization and as the oral order of termination dated 11.04.1996 was challenged, the order passed by respondent No.1 on the assumption that the petitioner was seeking the relief of regularization and reinstatement in the same application, is illegal. He submits that of course in the cross examination of the petitioner, he happened to admit the fact that he was terminated on 19.04.1996 and that he has not filed the application for reinstatement, but that it would not be helpful to the respondent No.1 as the petitioner was only paid salary up to 11.04.1996, meaning thereby he stood orally terminated from that day. He further submits that as the petitioner was terminated on 19.04.1996, he will have to be paid the salary up to that period. He submits that the petitioner was on probation which was extendable on performance basis. He further submits that the oral termination of the petitioner was on the ground that his performance was not satisfactory, is an stigmatic one. He submits that before passing such an order, a departmental enquiry as contemplated under Rule 12 of Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 (for short the “Standing Order”) which has been framed exercising power under the M.P. Industrial Employment (Standing Order) Act, 1961 (for short ‘Act of 1961’) was to be conducted, which admittedly, was not conducted in this case before passing the oral termination order, and on this ground only the impugned orders passed by the learned Labour Court and subsequently confirmed by the Industrial Court are liable to be set aside reinstating the services of the petitioner. To further his arguments, learned counsel for the petitioner submits that the allegations made against him do not embrace in its fold any financial irregularity or moral turpitude, -5- the punishment of termination from service appears to be quite disproportionate. He submits that the cause of action to file the application before the Labour Court accrues when the petitioner after 11.04.1996 was not allowed to join the duty and was paid salary up to that period only. To elaborate this proposition, he placed reliance upon the judgment of Supreme Court in case of Raja Ram Maize Products v. Industrial Court of M.P. and others reported in (2001) 4 SCC 492. He further submits that the provisions of Standing Order would over-ride all the agreements, settlements, awards if any entered into between the respondent and any of the Union because it has a statutory force. To bolster this submission, he placed reliance upon the judgment of the Supreme Court in case of Bhartiya Kamgar Karamchari Mahasangh Vs. Jet Airways Ltd. reported in (2023) 20 SCC 178. Lastly he submits that the petitioner is agitating his claim since 1996 and after almost 30 years he must be nearing the age of superannuation. He submits that in the event this petition is allowed, this Court may consider for suitable compensation being granted. 7. On the other hand, learned Senior Advocate assisted by his associates submits that the relief of reinstatement as argued by counsel for the petitioner is misconceived. He further submits that initially the petitioner had filed an application seeking relief to set aside the letter dated 11.04.1996 being illegal, and the further prayer made was that the petitioner may be allowed to mark his signature on the attendance register and be paid the salary from 12.04.1996. He submits that even assuming for the sake of arguments that the petitioner was orally terminated on 11.04.1996 but the petitioner had not specifically challenged his termination. He submits that the argument of the counsel for the petitioner that he is protected by Rule 12 of the Standing Order is totally misplaced for the reason that the standing order does not apply to the case of the petitioner as it would apply only in the cases of the permanent employees, and the petitioner being a probationer cannot take the benefit of Rules 11 and 12 of the Standing Order. Referring to the document of 11.04.1996, learned counsel for the respondent submits that it is merely a show-cause notice which was duly replied to by the petitioner. He submits that these documents have also been exhibited by the petitioner himself, and therefore, it -6- cannot be said that the petitioner was orally terminated on 11.04.1996. He further submits that of course no evidence was led by the respondent No.1 in support of its case, but the petitioner has to stand on his own legs and cannot take the benefit of the weakness of his adversary. He submits that the petitioner has only claimed for declaration of the notice dated 11.04.1996 as illegal as the petitioner has already admitted in his cross examination that he was aware of the fact that he was terminated on 19.04.1996 and thus the relationship of the employer and employee has come to an end and therefore, the petitioner cannot fall within the meaning of Employee as defined under Section 2 (13) of the Act of 1960. He submits that in the entire pleadings, nothing has been mentioned by the petitioner that there is a violation of Rule 12 of the Standing Order, and in the absence of such pleadings, the respondents were precluded to submit reply in this regard. He further submits that as the petitioner is claiming regularization and no specific challenge to the order of termination was made by the petitioner, no relief regarding his reinstatement can be granted. He submits that in the fact and circumstances of the case, the case laws which have been relied upon by the learned counsel for the petitioner do not come to his rescue. He further submits that as the petitioner was aware of the fact that he was terminated by a written order dated 19.04.1996, he moved an application for incorporating amendment seeking setting aside of the termination order, which was allowed by the learned Labour Court on 16.10.1996. However, the same was set aside by the Industrial Court vide order dated 21.08.1998, copy of which was placed before this Court. He submits that the order of Industrial Court setting aside the order of Labour Court allowing the amendment has not been assailed further, therefore it attains the finality. It is thus submitted that non-challenge of express termination order dated 19.04.1996 is writ large and therefore the relief claimed by the petitioner cannot be granted. 8. In rejoinder, larned counsel for the petitioner submits that even if the order of the Industrial Court rejecting the amendment application is not challenged, it would not curtail the right of the petitioner in light of the decision in the matter of Raja Ram Maize -7- Products (Supra). In these circumstances, it is submitted that this writ petition may be allowed. 9. Heard learned counsel for the parties and perused the appended documents. 10. A chronological re-look to the factual backdrop indicates that the petitioner entered in the services of respondent No.1 as Trainee Electrician vide appointment order dated 25.11.1994, though asked to report on duty on 07.11.1994. The order dated 25.11.1994 shows that initially the appointment was for a period of one year which clearly stipulates that if during this period his performance remained unsatisfactory, the management would consider to continue or terminate his services without any notice. On 25.03.1996 the petitioner was issued a letter by respondent No.1 asking him to explain within 72 hours from receiving time his unauthorized absence from 25.02.1996, to which reply was submitted on 29.03.1996. However, on 30.03.1996 the petitioner was put to one-day suspension without giving an opportunity of hearing. On account of an injury to his leg suffered on 06.04.1996 he received treatment in the hospital of respondent No.1 and also took two-day rest for 08.04.1996 and 09.04.1996. On 11.04.1996, the petitioner reported on duty with the requisite medical certificate but he was not allowed to join. On 11.04.1996 a show cause notice was issued to the petitioner asking him to explain in writing within 72 hours of its receipt as to why disciplinary action should not be taken against him. From the record it is apparent that the petitioner worked with respondent No.1 for more than 15 months. Further, the record reveals that first the petitioner was issued show cause notice dated 11.04.1996 and reply was sought from him. Thereafter, his services came to be terminated by a written order to this effect was issued on 19.04.1996. The record also reflects that the letters extending the probation period of the petitioner were issued on 24.11.1995 and 07.02.1996 respectively with a specific mention that if performance did not come upto the mark within the extended period, his probation period would automatically come to an end. Regularization order also does not appear to have been issued by the respondent No.1 as it is not a part of the record before this Court, and in such a situation no safe presumption can be drawn as to the fact that the -8- petitioner was a regular employee of respondent No.1. Since respondent No.1 has treated the petitioner’s service as on probation, his services have been terminated. 11. Record shows that the show cause notice was issued to the petitioner for unauthorized absence and reply thereto was also submitted by him. Thereafter termination order dated 19.04.1996 came to be passed, which was challenged by way of amendment before the labour Court after being allowed to do so. However, subsequently the said amendment has been set aside by the Industrial Court, and in this view of the matter, the termination remains unchallenged even now. Thus the question that remains is the termination order dated 19.04.1996 is still out of question. Further, the material available on record in the case in hand indicates that the appointment of the petitioner was for a fixed term of one year which was made extendable from time to time but depending upon his performance. If the facts involved in the case in hand are given a glimpse to, it becomes manifest that the misconduct, if any, of the petitioner pertains to unauthorized absence. No specific charge of moral turpitude, dishonesty, or financial irregularity is pointed out even by the respondent No.1. It is not even its case. Even assuming that the petitioner remained unauthorizedly absent from duty as is alleged by respondent No.1, the punishment must satisfy the test of proportionality. The doctrine of proportionality in industrial disputes adjudication has been recognized by the Supreme Court in the case of Workmen vs Bharat Fritz Werner (P) Ltd. and another reported in (1990) 3 SCC 565 holding that punishment must not be so disproportionate. From the record it is apparent that in the present case the alleged misconduct was confined to absence from duty. Having regard to the nature of appointment, long period during which the petitioner persisted with the litigation, absence of any allegation of grave misconduct, according to the considered opinion of this Court, the penalty imposed on the petitioner appears to be excessive. 12. This Court is not in agreement with the argument of the counsel for the respondent that the petitioner did not challenge his termination. Of course, in the first instance the petitioner had not challenged the written order of termination dated -9- 19.04.1996 but he has specifically challenged the oral order dated 11.04.1996 where he was not permitted to join his duties. Termination from a job need not necessarily be in writing, it can be done orally as well. From the record it is manifest that after availing the leave for 08.04.1996 and 09.04.1996 when the petitioner went to join his duty on 11.04.1996 with the requisite medical certificate, he was not allowed to join. Not only this, after 12.04.1996 he was not even paid his salary. The application filed by the petitioner before the Labour Court clearly goes to show that he had made a specific prayer for a direction to the respondent No.1 to permit him to sign the attendance register and also to pay his withheld salary with effect from 12.04.1996. While dealing with almost an similar issue in the matter of Raja Ram Maize Products (supra) the Supreme Court has categorically held that once the workman is not allowed to resume work, the cause of action is complete. It is also held therein that when the workman had been refused work goes to the period when he deemed to resume work but was refused for that. Relevant portion of the said decision reads as under:- “7. In our view, the Labour Court, the Industrial Court and the High Court have proceeded on a misapprehension of facts. As noticed earlier, the whole case put forth on behalf of the workmen before the courts below is that the appellant is not taking the workmen to duty though they have been reporting for duty. The action of the appellant in not allowing the workmen to resume their duty gives rise to the dispute in respect of which application before the Labour Court is filed. It is to redress this grievance the workmen had approached the Labour Court. Even as noticed by the Labour Court, the dispute in this regard between the parties started from the time when the charge sheet was issued on 12.2.1986 to Dushyant Kumar as to why he should not be suspended at 8 a.m. and from 12.2.1986 when he was prevented from entering the factory under the oral orders of the Factory Manager while the workmen asserted that they along with Dushyant Kumar should have been permitted to join duty. This aspect was commented upon by the Industrial Court as not amounting to any willingness on the part of the workmen to do their work. There is some dispute as to whether the order made by the Labour Court on 1.3.1986 is binding on all the parties, as to that -10- application only 29 persons had been impleaded as parties though the words "all other workmen" were also added. In the relief portion also, the prayer is confined only to 29 workmen. However, that aspect of the matter need not detain us because even according to the workmen, as indicated in their application filed by them, it is clear that they understood the order of the Labour Court to be one made in respect of all the workmen. It appears that thereafter they started demanding that they should be given work. Otherwise, the period when the workmen had been refused work goes back to the date when they deemed to resume work with Dushyant Kumar who was prevented from resuming work. It is only thereafter they were also not allowed to join duty. When the workmen themselves understood the order of the Labour Court dated 1.3.1986 as directing them to resume their duties and thereafter though they have reported for duty, they have not been allowed to join their duty, the application filed in each of these cases is beyond the period of two years mentioned in Section 62 of therefrom 1.3.1986. 8. The aspects considered by the courts below whether there was abandonment of work by the workmen or termination of the services of the respondent are not all germane to the main issue at all. The courts have unnecessarily travelled at a tangent missing the essence of the matter. 9. Now we have to see as to whether the case put forth before the courts falls under which of the clauses provided under Section 62 of the. The largest period of limitation prescribed therein is two years and in cases of termination of services and other incidental matters lesser period of limitation has been prescribed. Therefore, even taking that two years period from the date of the dispute either taking the date on which when they were refused work when they made a demand that they should be allowed to do work with Dushyant Kumar or when they made a demand after the order made by the Labour Court on an interim application directing them to resume work or calling off the strike, the applications filed are beyond the period of limitation prescribed under Section 62 of the limitation prescribed under Section 62 of the Act. 10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari -11- Waghmare and others v. Shree Dhyaneshwar Maharaj Sansthan and others, AIR 1959 SC 798 [LQ/SC/1959/35] , it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.” 13. Having thus analysed the material on record, this Court thus does not see any legal error having crept in the order of the Labour Court which subsequently has been affirmed by the Industrial Court establishing the misconduct on the part of the petitioner. However, as regards the penalty of termination imposed on the petitioner, in the factual backgkround of the case, in the considered opinion of this Court, appears to be dis- proportinate. At the same time, this Court is also conscious of the fact that the petitioner performed his duties for a very short period, after such a long period of time the relief of reinstatement also does not seem to be appropriate.Thus in such a situation, this Court thinks it just and reasonable that the interest of justice would be served, if in the entirety of circumstances, the petitioner is awarded suitable compensation. Dealing with this issue, in the matter of Jagbir Singh vs Haryana State Agr. Marketing Board & another reported in (2009) 15 SCC 327 it has been held by the Supreme Court as under:- “7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.” -12- 14. In the matter of Bharat Sanchar Nigam Ltd v Bhurumal reported in AIR 2014 SC 1188, the Supreme Court has held as under:- 26. Applying the aforesaid principles, let us discuss the present case. We find that the respondent was working as a daily wager. Moreover, the termination took place more than 11 years ago. No doubt, as per the respondent he had worked for 15 years. However, the fact remains that no direct evidence for working 15 years has been furnished by the respondent and most of his documents are relatable to two years i.e. 2001 and 2002. Therefore, this fact becomes relevant when it comes to giving the relief. Judicial notice can also be taken of the fact that the need of lineman in the telephone department is drastically reduced after the advancement of technology. For all these reasons, we are of the view that ends of justice would be met by granting compensation in lieu of reinstatement. In Man Singh (supra) which was also a case of BSNL, this Court had granted compensation of Rs.2 Lakh to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. Award of the CGIT is modified to this extent. The appeal is disposed of in the above terms. The respondent shall also be entitled to the cost of Rs.15,000/-(Rupees Fifteen Thousand only) in this appeal. 15. As already mentioned above, as by now there is every possibility of the petitioner having retired from service or on the verge thereof, reinstatement in this case appears to be neither practicable nor appropriate. The petitioner was appointed on monthly stipend wages at Rs. 1500/- per month and that he has been facing litigation right from 1996 enveloping a long span of about 30 years since then in its fold. Thus considering his monthly stipend, the period of service lost, and keeping in view the principle of equity, this Court is of the view that award of lump-sum compensation would meet the ends of justice. Therefore, this Court is of the opinion that the interest of justice would be served if the petitioner is granted a compensation quantified at Rs. 1,00,000/-. Respondent No.1 is thus directed to deposit the compensation amount as ordered before the concerned -13- learned Labour Court within a period of sixty days from the date of receipt of copy of this order, and the Labour Court in turn is directed to pay the same to the petitioner by adhering to due process of law. If the order is not complied with within the stipulated period, the respondent No.1 shall pay interest at the rate of 12% per annum. 16. In view of aforesaid, this petition stands disposed of. 17. Copy of this order be sent to the concerned Labour Court forthwith. Sd/- (Sachin Singh Rajput) Judge Ashish//J