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Rajasthan High Court · body

2001 DIGILAW 1393 (RAJ)

Kesar Dev v. JDA

2001-09-03

S.K.KESHOTE

body2001
JUDGMENT 1. - Arguments were heard on 1st of August, 2001, and the matter was kept for dictation of Judgment on 17.8.2001. On that date dictation could not be done and matter has come up today. 2. In this petition, under Article 226 of the Constitution, these two petitioners-employees of the Jaipur Development Authority, Jaipur, are praying for following reliefs. (a) Issue a writ of certiorari or mandamus quashing the oral termination order dated 6th Feb., 1991 and reinstating petitioners in to services with all back wages and consequential benefits. The oral termination order dated 6/2/91 may kindly be declared illegal, bad, arbitrary, void, passed by incompetent authority in malice intention with ulterior motive. (b) Issue an appropriate order or direction in the nature declaring that petitioners are entitled to be continued in to service and entitled to enjoy the benefits of seniority wages as paid to the employees since entry in to service alongwith other benefits, facilities admissible with post. (c) Issue an appropriate order or direction directing respondents that the petitioners to be considered for the regular appointment as class IVth employee and be allowed all the benefits admissible with the post. (d) Issue any appropriate order or direction directing respondents to pay the salary to the petitioner as per prescribed pay scale w.e.f. entry into service alongwith interest within stipulated period. (e) Any other appropriate order or direction which may be deemed fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner. (f) That cost of the writ petition may kindly be awarded to the petitioner. 3. So far as the reliefs Nos. (b), (c) and (d) are concerned these cannot be granted under Article 226 of the Constitution at this stage. The petitioners as per their own case were working as daily wager. A daily wager may not have any right of regularisation on the post which is to be filled in by direct recruitment through selection. Nor they may be given all the benefits akin to the regularly selected, and appointed person on the permanent post. So far as the termination of the services of the petitioners is concerned by the respondents, it is contended by Shri Mitlesh Sharma Counsel for the respondents that the petitioners have alternative efficacious remedy of raising an industrial dispute. Nor they may be given all the benefits akin to the regularly selected, and appointed person on the permanent post. So far as the termination of the services of the petitioners is concerned by the respondents, it is contended by Shri Mitlesh Sharma Counsel for the respondents that the petitioners have alternative efficacious remedy of raising an industrial dispute. Learned counsel for the respondents submitted that the Rajasthan (Regulation of Appointment to Public Services and Rationalisation of Staff) Act, 1999 prohibits regularisation of the persons who are appointed on daily wages. He made reference to the provisions of this Act, 1999. 4. The learned counsel for the respondents in support of his contentions placed reliance on the Larger Bench decision of this Court in the case of Gopilal Teli vs. State of Rajasthan 1995(1) RLR 1 = 1995(2) WLC page No.1 . 5. Shri A.K. Bhargava learned counsel for the petitioner on the other hand submitted that in this petition, the respondents have not filed reply thereto and have not raised any dispute on the fact that the petitioners have worked for 240 days in a calendar year and their services are brought to an end without making the compliance of the provisions of section 25F of the Industrial Dispute Act, 1947. It is also not in dispute that the petitioners are workmen and the JDA an industry. 6. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. 7. I am satisfied that it is not a case wherein for this relief the petitioners are to be relegated to the remedy to raise an industrial dispute under the Industrial Dispute Act, 1947. 8. This petition has come up on board on 5th February, 93 for preliminary hearing, on which date the same was admitted and notice was issued, returnable on 24th April, 93. On 7th July, 93 on behalf of the respondents the power has been filed. They also engaged advocate, who filed Vakalatnama in the matter, however till day they have not bothered to file the reply to the petition. The petitioners filed an application on 15th of July,2000 and prayer is made therein for early listing of the petition. A copy of this application has been sent to the Secretary, JDA, Jaipur by speed post on 12th May, 2000. The matter had come before the Court on 21st July,2000. The petitioners filed an application on 15th of July,2000 and prayer is made therein for early listing of the petition. A copy of this application has been sent to the Secretary, JDA, Jaipur by speed post on 12th May, 2000. The matter had come before the Court on 21st July,2000. The Court ordered for listing of this matter for hearing in third week of September, 2000. Thereafter the matter was placed on 19th September,2000, 21st September, 2000, 21st November,2000, 12th February,2001, 14th May, 2001, 16th May,2001, 21st May,2001 and lastly on 23rd May, 2001. The respondents have not cared, bothered or considered it to be necessary to file the reply to the petition. There is yet another aspect of this matter that the arguments in the matter were heard on 1st of August, 2001 and the matter was placed for dictation of order on 17th of August, 2001 but during this period also the respondents have not cared to file reply to the petition. On 17th of August,2001 the Judgement could not be dictated and it was adjourned to 3rd of September,2001. During this period also the respondents have not cared to file reply to the petition. From these undisputed facts reasonably two inferences can be drawn by the Court. Firstly that the officers of the JDA an impersonal machinery are unmindful of their duties which they owe to their employee and the people. Second is that the officers of the JDA are indirectly extending favour to these petitioners for consideration or without consideration, this is not the matter for enquiry of this court at this stage. They are making easy assail in the matter of the petitioners. They are not making or creating any obstacle in the matter, so that the petitioners may get the desired reliefs in the petition from the Court. It is difficult to believe what to say to accept that the officers of the JDA Jaipur, would not have known of this basic principle of rule of pleadings that where the reply to the petition is not filed the averments made in the petition are taken to have been admitted by the respondents. It is unfortunate for this impersonal machinery that despite spending huge amount in paying the salary, perks etc. of the officers, and employees of legal cell this is their only defence and assistance in litigation in the Court. It is unfortunate for this impersonal machinery that despite spending huge amount in paying the salary, perks etc. of the officers, and employees of legal cell this is their only defence and assistance in litigation in the Court. If ultimately its officers are not cared, bothered or concerned for the litigation, I fail to see what for this impersonal machinery is expending huge amounts under the head of the litigation expenses. Looking to road condition in the city as well as other civic difficulties which are being faced by the people, this amount better can be utilised for other public works. It is a clear case of negligence, carelessness and unmindful of their duties of the officers which they owe to their master and the public. 9. Be that as it may, it is a matter for the consideration of the JDA, Jaipur and not for the Court in this case. 10. The respondents have not raised any dispute on the points, (i) that first petitioner worked as daily wager from Feb. 85 to 7th Feb. 91. (ii) Second petitioner worked from May, 86 to Feb. 91 (iii) Their services are terminated under an oral termination order.(iv) They have not given any notice or pay in lieu of notice and retrenchment compensation. It is a clear case of termination of the services of the petitioners by the respondents under the oral termination order without making compliance of the Section 25F of the Act, 1947. In the case of Gopilal Teli vs. State of Rajasthan (supra) it is held that in the matter of the termination of the services in violation of the provisions of section 25F of the Act, 1947, the alternative remedy by raising industrial dispute is to be availed of first. However, the larger bench in this case held that further argument advanced before us by the counsel for the petitioner is that the entertainment of writ petition under Article 226 of the Constitution of India even in cases where there are statutory alternative remedies available to the petitioners, is no bar. However, the larger bench in this case held that further argument advanced before us by the counsel for the petitioner is that the entertainment of writ petition under Article 226 of the Constitution of India even in cases where there are statutory alternative remedies available to the petitioners, is no bar. There cannot be two opinions in view of the law laid down by the Apex Court in large number of cases that alternative remedy is no bar for entertainment of writ petitions under Article 226 of the Constitution of India and there may be cases in which this Court inspite of the fact that there is an alternative remedy, may interfere depending on the facts of the case. The last submission made by the counsel for the petitioner is that this court may lay down the circumstances/grounds exhaustively in which this Court inspite of availability of alternative remedy may entertain petitions under Article 226 of the Constitution of India. In our opinion, the aforesaid submission cannot be accepted as it is difficult to lay down conditions/ ground exhaustively as the facts differ from case to case and as such conditions/grounds which may be held as sufficient for invoking the extra ordinary jurisdiction of this Court cannot be confined in a water-tight compartment. The Industrial Disputes Act, 1947, which is a special statute has been enacted by the Parliament for setting the industrial disputes through conciliation and if not possible, then by the Tribunals constituted under the Act, and, also to reduce the files of conflict between the employer and the employees in order to increase the industrial growth of the country. The Act is a self-contained code and provides complete procedure, even machinery has been provided for recovering the money due from the employer to the employee under section 33-C of the Act. In our opinion even where the question is raised as to whether the principles of natural justice have been complied with before passing the impugned order or not, is also a question of fact which requires investigation. In our opinion even where the question is raised as to whether the principles of natural justice have been complied with before passing the impugned order or not, is also a question of fact which requires investigation. Similarly, the question as to whether the order is without jurisdiction, is also essentially a question of fact and requires investigation before reaching a conclusion and that investigation or enquiry in our opinion is normally beyond the scope of Article 226 of the Constitution of India and these questions can be suitably agitated and adjudicated upon by the authorities constituted under the Act, on the basis of evidence adduced by the parties. We are, therefore, of the opinion that even in such cases the normal rule for an employee should be to avail remedies provided under the Act and entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting the remedies should be with great care and caution and in very exceptional cases. 11. It is not absolute bar of filing of petition before this court in case where alternative remedy of raising of industrial dispute is available in the matter. In the exceptional cases the direct writ petition under Article 226 of the Constitution in case of termination of the services of a workman can be entertained by this court. Here , in this case, the respondents have not disputed the fact aforestated and it is an exceptional case where and moreso at this stage this court may not relegate the petitioner to the alternative remedy. In para No.10 of the Judgment Gopilal Teli (supra), the Court held that where the conditions prescribed under section 25F of the Act of 1947, for retrenchment of the workman have been fulfilled or not, is a pure question of fact and in order to arrive at a conclusion/recording finding, some investigation/enquiry has to be embarked upon which would be beyond the purview of Article 226 of the Constitution. The questions of facts arise for consideration have not been disputed by the respondents as no reply to the petition has been filed. It is a case where by not filing the reply to the petition the respondents have not contested the case on any of the question of fact and now they want to non suited the petitioners on this ground. It is a case where by not filing the reply to the petition the respondents have not contested the case on any of the question of fact and now they want to non suited the petitioners on this ground. This plea raised by the learned counsel for the respondents in not bonafide. If the respondents would have been really interested in contesting this petition they could have filed reply to it long back and thereunder preliminary objection could have been raised. But this cannot be permitted by the Court in the manner and fashion as what it is sought to be done by the respondents. In fact it appears to be an objection raised by the counsel for the respondents on his own and not on the instructions of officers of the JDA, Jaipur. 12. As a result of the aforesaid discussions, this petition succeeds and same is allowed and the termination of services of the petitioners by the oral order by the respondents is declared to be invalid and illegal. The respondents are directed to reinstate the petitioners back in services with full back wages and continuity thereof. The determination of the back wages payable to the petitioners, in pursuance of this order is to be made within one month of the receipt of the certified copy of this order and amount so determined by paid to the petitioners within 7 days next. So far reinstatement of the petitioners is concerned it is to be done within 7 days of the receipt of the certified copy of this order. It is a fit case where the cost of the petition is to be awarded in favour of the petitioners. However, Mr. A.K. Bhargava submits that he has not charged a single pie from the petitioners for providing them his professional services in the case. It is submitted that he provided free legal services to the petitioners in this case. In view of this statement made by the counsel for the petitioner, I do not consider it to be appropriate to award any cost under the head of payment of expenses incurred by the petitioners towards the fee of the counsel. It is not the statement of the counsel for the petitioner that he himself also bears the expenses of preparation and filing of the petition, which heavily costs to a litigant. It is not the statement of the counsel for the petitioner that he himself also bears the expenses of preparation and filing of the petition, which heavily costs to a litigant. The petitioners certainly fall tinder the category of the employees who cannot afford and incure the expenses of filing of this petition. In view of this, I am satisfied that Rs. 400/- as costs towards preparation and filing expenses of the petition, be awarded to the petitioners. Accordingly the respondent JDA is directed to pay Rs. 400/- as cost of this petition to the petitioners. The Commissioner JDA, Jaipur is directed to hold an enquiry in the matter and find out who is responsible for not filing the reply to the petition and the amount of the back wages payable to the petitioners and amount of the cost as well as the monthly salary to be paid to the petitioners are to be recovered from that officer. The Judgement of this Court will not come in the way of the JDA, Jaipur to terminate the services of the petitioners in accordance with law. The compliance of this order is to be reported to the Court by the Commissioner JDA, Jaipur.Petition Allowed with costs. *******