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2006 DIGILAW 2924 (RAJ)

Jagdish Prasad Sharma v. State of Rajasthan

2006-10-19

MOHAMMAD RAFIQ

body2006
Judgment Mohammad Rafiq, J.-The petitioner Jagdish Prasad Sharma in this writ petition has challenged the order dated 112.2002 passed by the Municipal Board, Pokaran whereby he was removed from service. In fact, the order dated 112.2002 is a notice, which was served upon the petitioner alongwith cheque for salary of one month in compliance of the direction issued to the Municipal Board by Dy. Director (Regional), Local Self Department, Jodhpur. 2. Brief Facts of the case are that the petitioner was appointed on the post of sanitary Inspector on daily wage muster rolls basis with the Municipal Board, Pokaran by order dated 012.1992. His services were terminated w.e.f. 01.01.1996. The appropriate Government made a reference as to legality of his removal from service to Labour Court, Jodhpur. The Labour Court, Jodhpur upon adjudication of dispute passed an award on 210.2002 holding removal of the petitioner to be illegal and directed the respondents to reinstate him in service with 40% backwages. According to the petitioner, when he approached the Municipal Board, Pokaran for compliance of the award, he was compelled to forego the back wages under threat that if he did not do so, the Municipal Board would file the writ petition against the award. Since the petitioner was out of employment and in dire need of service, he accepted this unreasonable condition and the Municipal Board by its order dated 011.2002 reinstated him in service in the pay scale of Rs. 4000-100-6000 of Assistant Sanitary Inspector with continuity in service, but it was directed that the petitioner shall not be entitled to any back wages on account of compromise arrived at between the parties. A copy of this order was also endorsed to the Director, Local Bodies as well as to the Dy. Director (Regional) Local Self Department, Jodhpur. The Dy. Director (Regional), Local Self Department, Jodhpur by his letter dated 112.2002 raised an objection as to how the Municipal Board has given appointment to the petitioner in regular pay scale/regular basis. It was conveyed that steps be taken to cancel the appointment order and explanation of the officials of the Board was called for as to why they did not take steps to challenge the award of the learned Labour Court and relevant files were also summoned. It was conveyed that steps be taken to cancel the appointment order and explanation of the officials of the Board was called for as to why they did not take steps to challenge the award of the learned Labour Court and relevant files were also summoned. It was in this background that the order of removal of the petitioner dated 112.2002 was passed, which is under challenge in this present proceeding. 3. The respondents have contested the writ petition by filing reply thereto. Their contention is that the petitioner was working on daily wages basis and the learned Labour Court in its award had directed his reinstatement as such with 40% of the back wages. It was nowhere directed that he should be appointed in regular pay scale and that too on the post of Assistant Sanitary Inspector. It was a case of undue favour and the Executive Officer has given such appointment to the petitioner beyond the directions contained in the award and, therefore, the explanation was rightly called for. It has been submitted that the Executive Officer acted beyond his competence in appointing the petitioner on the post of Assistant Sanitary Inspector on regular basis, which could be made only by regular mode of recruitment. The petitioner was entitled to reinstatement on daily wage basis with only 40% of the back wages. It has been prayed that the writ petition may be dismissed. 4. I have heard Shri Deepash Beniwal, learned Counsel for the petitioner and Shri Rameshwar Dave, learned Dy. Government Advocate and perused the record. 5. Learned Counsel for the petitioner argued that the Municipal Board, being an autonomous body, the Directorate of Local Bodies and its officer Dy. Director (Regional) could not control the affairs of the Board and direct it to terminate the service of the petitioner. He argued that the petitioner’s reinstatement was made pursuant to the award passed by the learned labour Court and there was nothing wrong if the Board decided to appoint the petitioner on the post of Assistant Sanitary Inspector in the regular pay scale. According to the petitioner, even before the earlier retrenchment of the petitioner he was working on the post of Assistant Sanitary Inspector. According to the petitioner, even before the earlier retrenchment of the petitioner he was working on the post of Assistant Sanitary Inspector. He argued that the removal of the petitioner from service was made in utter disregard of the provisions of Section 25-F of Industrial Disputes Act, 1947 inasmuch as his retrenchment compensation was not paid alongwith notice pay. When the post of Assistant Sanitary Inspector was lying vacant in the Board and duly selected candidate was not available and if the petitioner who was qualified was appointed in the spirit of compromise thereby requiring him to forego back wages, there was nothing illegal about this action. In fact, action of the Dy. Director (Regional) requiring the Board of terminate the service of the petitioner tantamounts to interfering in the authority of the local bodies as enshrined in Part IXA of the Constitution of India. Shri Deepash Beniwal, learned Counsel for the petitioner has relied upon an unreported Judgment of this Court in Ajay vs. State of Rajasthan & Ors., (S.B. Civil Writ Petition No. 372/1997, decided on 05.03.2001) wherein this Court quashed the termination order of an employee of the Municipal Board which also made on the basis of directions received from the Government dated 211.1996 whereas according to various circulars of the Government, his case should have been considered for regularization. In that case, the workman was reinstated in service pursuant to award passed by the learned Labour Court subject to his undertaking not to claim back wages. 6. On the other hand, Shri Rameshwar Dave, learned Dy. Government Advocate argued that the Executive Officer has no authority to act contrary to rules. When the petitioner was simply working on daily wages on the post of Assistant Sanitary Inspector. The Executive Officer on his own without any authority of law appointed him on the post of Assistant Sanitary Inspector in the regular pay scale of Rs. 4000-100-6000 whereas in fact, the amount of 40% of the back wages of a daily wages employee for a period of six years by no means was any comparison to the regular appointment on the post of Assistant Sanitary Inspector. He argued that there was no resolution of the Board in favour of the petitioner for appointing him on regular basis in the regular pay scale. He argued that appointment of the petitioner was not made by any acceptable mode of recruitment. He argued that there was no resolution of the Board in favour of the petitioner for appointing him on regular basis in the regular pay scale. He argued that appointment of the petitioner was not made by any acceptable mode of recruitment. He in this connection, cited the Judgment of the Hon’ble Supreme Court in Nagar Mahapalika (Now Municipal Corporation) vs. State of U.P. & Ors., 2006 (5) SCC 127 , in which case it was held that where the appointment was made in violation of the provisions contained in the Act, the relief of reinstatement should not be granted. He also cited the Judgment of the Hon’ble Supreme Court in M.P. Housing Board & Anr. vs. Manoj Shrivastava, 2006 (2) SCC 702 , wherein it was held that a daily wager does not hold a post or derive any legal right in relation thereto, unless he is appointed (1) against a duly sanctioned vacant post, and (2) upon following the statutory law operating in the field. He also relied upon the Judgment of Hon’ble Supreme Court in M.P. State Agro Industries Development Corporation Ltd. & Anr. vs. S.C. Pandey, 2006 (2) SCC 716 in which it was held that a daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and, therefore, he does not drive any legal right. He further relied upon a recent Judgment of the Hon’ble Supreme Court in Reserve Bank of India vs. Gopinath Sharma & Anr., 2006 (6) SCC 221 , wherein also, similar view was taken. He argued that it was a pure case of undue favour to the petitioner where the Executive Officer legalized an illegal appointment by way of back door entry for which the Dy. Director (Regional) has rightly asked for his explanation and directed for terminating petitioner’s service. It is not a case of interference in the autonomy of the Municipal Board. He, therefore, argued the writ petition may be dismissed. 7. I have considered the rival submissions made by learned Counsel for the parties and perused the record. 8. Careful study of the award passed by the learned Labour Court reveals that the appointment of the petitioner was made on the daily wage basis on muster roll. He, therefore, argued the writ petition may be dismissed. 7. I have considered the rival submissions made by learned Counsel for the parties and perused the record. 8. Careful study of the award passed by the learned Labour Court reveals that the appointment of the petitioner was made on the daily wage basis on muster roll. He was appointed on 012.1992 and was removed on 01.02.1996 and his name was struck off from the muster roll. All that the learned labour Court held that it was a case of violation of Section 25-F of the Industrial Disputes Act, 1947 and, therefore, directed his reinstatement with 40% back wages. The said compromise was sham because it had not received any approval either from the Board in accordance with the Act or even the Directorate of Local Bodies. The Dy. Director (Regional) who by virtue of his office would be akin to the Director of Local bodies would have legitimate say in supervising the functioning of Municipalities in the State. Section 283 of the Municipalities Act provides that powers of inspection and supervision of the Municipalities in State. Section 283 of the Rajasthan Municipalities Act is reproduced as under:- “283. Director (Regional) who by virtue of his office would be akin to the Director of Local bodies would have legitimate say in supervising the functioning of Municipalities in the State. Section 283 of the Municipalities Act provides that powers of inspection and supervision of the Municipalities in State. Section 283 of the Rajasthan Municipalities Act is reproduced as under:- “283. Powers of Inspection and supervision.-(1) (The Director or any) officer appointed or authorized by the State Government in this behalf by a general or special order shall have power : .(a) to enter on and inspect, or cause to be entered on and inspected, any immovable property occupied by any board or any institution under its control or management or any work in progress under it or under its direction or control; .(b) to call or any extract from the proceedings of any board or of any committee, or for any book or document in the possession of or under the control of a board, and any return, statement, account of report which he may think fit to require such board to furnish; .(c) to require a board to take into consideration any objection which appears to him to exist to the doping of anything which is about to be done or is being done by such Board, or any information which he is able to furnish any which appears to him to necessitate the doing of a certain thing by the board and to make a written reply to him with a reasonable time stating its reasons for not desisting from doing or for not doing such thing. (2) All or any of the powers given to such officer as may be appointed or authorized under Sub-section (1) may be delegated by him to any officer subordinate to him not below the rank of a Sub-divisional Officer”. 9. The Executive Officer, therefore, could not straightway appoint the petitioner on the post of Assistant Sanitary Inspector in the regular pay scale without due process of law. All that was directed by the learned Labour Court was to reinstate the petitioner with 40% of the back wages and in the normal course his reinstatement required to be made in the status in which the petitioner was earlier working. All that was directed by the learned Labour Court was to reinstate the petitioner with 40% of the back wages and in the normal course his reinstatement required to be made in the status in which the petitioner was earlier working. The petitioner however agreed to forego his 40% back wages as per the said compromise in which it was agreed that if the petitioner forgoes his back wages, he shall be granted regular pay scale and consequential regular appointment on the post of Assistant Sanitary Inspector. In this matter, it is proved that the petitioner was merely a daily wager. In the light of various Judgment s of the Hon’ble Supreme Court cited Supra, a daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and, therefore, he does not derive any legal right. At the same time, however the respondents cannot escape their liability to make complete compliance of the award passed by the learned labour Court. Moreover, the removal of the petitioner has not been made after making due compliance of Section 25-F of the Act of 1947, although he has been paid the notice pay, but retrenchment compensation as required under Section 25-F was not paid to him. The entire period of service starting from his original date of appointment on 012.1992 till he was removed second time should have been taken as the basis for calculating the final compensation. 10. In the result, the writ petition is partly allowed and the retrenchment of the petitioner is also held to be illegal. He shall however be entitled to reinstatement on daily wage basis only in terms of award passed by the learned labour Court and would be further entitled to back wages to the extent of 40% as already ordered by the learned labour Court. He would also be entitled for arrears of backwages an admissible to a daily wager from the date of his earlier reinstatement by order dated 011.2002 till his reinstatement now. However, pursuant to this Judgment , the Municipal Board, Pokaran shall at liberty to retrench the petitioner again from their service after making compliance of provisions of Section 25-F of the Industrial Disputes Act, 1947. Accordingly, the writ petition is partly allowed with no order as to costs.