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2004 DIGILAW 1763 (SC)

KRISHI UPAJ MANDI SAMITI v. MUKESH KUMAR SHARMA

2004-12-13

C.K.THAKKER, RUMA PAL

body2004
ORDER 1. Leave granted. 2. The appellants were appointed as daily-wagers. These appeals have been preferred from an order of the Division Bench by which the Division Bench of the High Court had directed the reinstatement of the respondents in service with back wages. 3. The facts of the case in all these appeals are substantially similar. We, therefore, take up the case of Mukesh Sharma as the leading case. The respondent Mukesh Sharma was appointed in 1991 as a daily-wager by the appellant. On 30-9-1994, a writ petition was filed by several workers including Mukesh Sharma for regularisation. The writ petition was disposed of by a direction to the Government to decide whether the workers were seasonal or not. It was made clear that the fact that workers had not been appointed by the competent authority, would not be relevant. It was also made clear that the provisions of Section 25-F of the Industrial Disputes Act would be applicable to the seasonal workers. However, in case the workers d were not in employment of the appellant Samiti, the Samiti was free to pass any order as the facts and circumstances warranted. 4. A letters patent appeal was preferred by the workers from this order of the learned Single Judge. That LPA was disposed of by an order dated 2-4-1998 by directing the Government to take a decision on the point as mentioned by the learned Single Judge after giving notice to both the parties within four months from the date of communication of the order in accordance with law. 5. It may be noted at this stage that the appellant Samiti had been left free, by the order of the learned Single Judge, to take action against those who were not in the appellants employment. 6. On 11-10-1999 an order was passed by the Samiti in the case of Mukesh Sharma saying that he had not been appointed by the appellant and had been appointed by the Director of the Government and as such he is not qualified for appointment. It was further held that he should be removed since the instructions were that no daily-wager could be appointed after 31-12-1988 by any samiti. On 10-12-2000 a general order was passed that all daily-wagers appointed after 1-1-1989 be removed as employees. A showcause notice was issued to the respondent on 14-1-2000. It was further held that he should be removed since the instructions were that no daily-wager could be appointed after 31-12-1988 by any samiti. On 10-12-2000 a general order was passed that all daily-wagers appointed after 1-1-1989 be removed as employees. A showcause notice was issued to the respondent on 14-1-2000. In that notice, it was stated that the respondent was given an opportunity to show cause why his services should not be terminated w.e.f. instructions dated 31-12-1988. On 22-1- 2000, since no satisfactory reply had been given by the respondent, his services were terminated and he was given one months salary and retrenchment compensation along with the order of termination. 7. Challenging this order, a writ petition was filed by the respondent. The writ petition was disposed of by the learned Single Judge on 15-2-2000 stating that disputed questions of fact were involved. The appropriate remedy for the respondent-writ petitioner was to approach the Labour Court for redressal. 8. Being aggrieved, the respondent preferred an appeal. The Division Bench found that although only the writ petitioner was present when the order of learned Single Judge was passed, the Government Advocates name had been mentioned in the order. The Division Bench then came to the conclusion "thus Government Advocate was hearts behind the back of the petitioner. Before considering any other reasonable are of the view that this particular inference was unwarranted was nobodys case that the Government had been surreptitiously heard then the respondent-Writ petitioner was not present. 9. The additional reason given by the Division Bench was that the appellant had not complied with the earlier order passed in the earlier round of litigation. As we have noted, the appellant Samiti claims to have taken action in terms of the directions given by the Court. However, the Division Bench said that until the decision was taken by the Government, the direction passed in the earlier proceedings should be complied with. This order was passed on 20-10-2003. The matter was again taken up by the Division Bench which sought to correct its earlier order by directing that the writ petitioner should be taken back into service forthwith and also directed that he was entitled to the back wages for the entire period he was not allowed to work. 10. We are of the view that the Division Bench entirely erred in passing the order. 10. We are of the view that the Division Bench entirely erred in passing the order. None of the earlier orders passed in the earlier, writ petition filed by the respondent warranted any such direction being made. The Division Bench itself did not independently consider any evidence as to whether the direction had been complied with. Besides that was an exercise which a court exercising jurisdiction under Article 226 is singularly ill-equipped to perform. 11. Being aggrieved, the appellant has preferred the present appeal. This Court passed an order on 30-1-2004 staying operation of the Division Benchs order. While the matter was pending before this Court there has been a change in policy under which all persons who were daily-wage employees and whose services were terminated after 31-12-1988 are to be reinstated in service subject to certain terms and conditions. These terms and conditions have been noted in the letter. Some of the appellants who are before us have already complied with the terms and conditions. We are of the view that having regard to the subsequent events, all the appeals must be disposed of by directing the implementation of the letter dated 21-1-2004 as indicated on 12-3-2004 in respect of daily-wage employees including the respondent before us, subject to their compliance with the conditions within one week thereafter. Thus while setting aside the decision of the Division Bench which cannot, in our view, be sustained, we dispose of these appeals in the manner as indicated above.