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Uttarakhand High Court · body

2007 DIGILAW 96 (UTT)

Rajeev Kumar v. Managing Director, Uttaranchal Rajya Sahkari Vipran Sangh Ltd.

2007-03-09

M.M.GHILDIYAL

body2007
Judgment Heard Sri S.S. Yadav, learned counsel for the petitioner, Sri Subhash Upadhyay, learned counsel for respondent nos. 1, 2 & 5 and Sri Ashish Joshi, learned counsel for respondent no. 3. 2. By means of this writ petition, the petitioner has prayed to issue a writ, order or direction in the nature of mandamus directing the respondents to give joining to the petitioner at Soyabin Evam Vanaspati Pariyojana Halduchaur Haldwani, district Nainital or in U.P. Cooperative Federation Ltd. Lucknow. He has further prayed to issue directions to the respondents to pay regular month to month salary alongwith the arrears of salary to the petitioner from the date of order passed by this Court on 30-07-2005 in writ petition no. 856 (SS) 2001. 3. Brief facts of the case, as stated by the petitioner, are that the petitioner was initially appointed by respondent no. 3 in the office of respondent no. 2 i.e. In-charge Project Manager, Soyabeen Evam Vanaspati Pariyojna, Halduchaur, Haldwani District Nainital as Helper on daily wage basis vide order dated 22-08-1985. The petitioner is a handicapped person. On 09-10-1991, the petitioner fell ill and went on medical leave. After the petitioner recovered from illness, he approached to respondent no. 3 for joining of the office, however the petitioner was not allowed by the respondent no. 3 to join his duties. On 20-04-1992, explanation was sought by the employer from the petitioner about his absence, to which he replied on 0606-1992. In the meantime, though the petitioner was reappointed on 25-02-1991 in regular establishment, however he was not permitted to join his services and vide order dated 27-09- 1993, he was terminated from service. Aggrieved by the aforesaid order dated 27-09-1993, the petitioner raised an industrial dispute and the matter was referred to Labour Court, Haldwani u/s 4-K of the U.P. Industrial Disputes Act, 1947 for adjudication of following reference :"Whether termination of the services of Sri Rajeev Kumar S/o Mahesh Pr\3sad by the employer from 27-09-1993 is illegal I or justified? If not, then what benefit I relief the concerned workman is entitled for and to which extent." 4. The case was contested by the respondents before the Labour Court and the Labour Court on 30-06-1999 passed an order that the petitioner's services were rightly terminated and the petitioner is not entitled for any relief, nor he is entitled for reinstatement in the service. The case was contested by the respondents before the Labour Court and the Labour Court on 30-06-1999 passed an order that the petitioner's services were rightly terminated and the petitioner is not entitled for any relief, nor he is entitled for reinstatement in the service. Feeling aggrieved with the Award dated 30-06-1999 passed by the Labour Court, the petitioner preferred writ petition no. 856/2001 (ss) and this Court on 30th July 2005 quashed the Award passed by the Labour Court dated 30-06-1999 as well as the impugned termination order dated 27-09-1993 with the directions to the respondents to reinstate the petitioner in the service and not to pay any back wages to him, except for the days permissible under the standing orders. The respondents have not challenged this order dated 30-07-2005, which has become final. 5. Submission of the learned counsel for the petitioner is that, although the order passed by this Court on 30-07-2005 has become final; even thereafter the petitioner has not been permitted to join either with the respondent no. 2 or with respondent no. 3. On the contrary, learned counsel for respondent no. 3, Sri Ashish Joshi has submitted that since the petitioner was appointed in the project, namely, "Soya been Evam Vanaspati Pariyojria, Halduchaur, Haldwani" and the said project, after bifurcation of U.P. Cooperative Federation, has been transferred to Uttaranchal Marketing Federation and further the project, where the petitioner was working since 1985 was situated at Halduchaur, Haldwani, district Nainital and the project is still continuing at the same place under the control of Uttaranchal Marketing Federation, thus it is the respondent no. 2 who has to reinstate the petitioner in service in compliance of the order dated 30-07-2005 passed by this Court. 6. Learned counsel for respondent no. 1,2 & 5 Sri Subhash Upadhyayhas submitted that a new Cooperative Federation, known as "Uttaranchal State Cooperative Marketing Federation" has been established w.e.f. 01-01-2005 in the State of Uttarakhand. AMemorandum of Understanding (hereinafter referred to as MoU) was signed on 06-12-2004 between the UP. Provincial Cooperative Federation (hereinafter referred to asP.C.F.) and Uttaranchal State Cooperative Marketing Federation (hereinafter referred to as C.M.F.) in respect of the assets and liabilities and payment of provident fund, gratuity, leave encashment allowances and other dues payable to the employees. Sri Upadhyay, Adv. has referred Clause-2 & 5 of the MoU, which are quoted hereunder :2 7. Sri Upadhyay, Adv. Sri Upadhyay, Adv. has referred Clause-2 & 5 of the MoU, which are quoted hereunder :2 7. Sri Upadhyay, Adv. has submitted that as per Clause 2 of the MoU, only those employees of P.C.F. who were working in the State of Uttaranchal at the time of signing of MoU, will be treated employees of C.M.F. with effect from 01-01-2005 and since the petitioner was not in service on 1st January 2005, it is the P.C.F., and not the C.M.F., who has to reinstate the petitioner in service in pursuance of the order passed by this Court on 30-07- 2005 in writ petition no. 856 (ss) 2001. He has further submitted that as per Clause-5 of MoU, the C.M.F. is not liable for payment of any financial and legal liabilities, which has arisen prior to signing of MoU. 8. It is not disputed that the petitioner was initially appointed as daily wager with the Project Soyabeen Evam Vanaspati Pariyojna, Halduchaur, Haldwani. His services were terminated vide order dated 27-09-1993 against which he approached to the Labour Court and the Labour Court has passed order on 30-06-1999 against the petitioner. Feeling aggrieved with the order of Tribunal, the petitioner preferred writ petition no; 856 (ss) 2001 which was allowed on 30th July 2005 with a direction to the respondents to reinstate the petitioner in service. The Pariyojna Manager Soyabeen Evam Vanaspati Industries, Halduchaur, Haldwani, where the petitioner was engaged by the respondents, was party to the writ petition but none of the respondents have challenged the order passed by this Court on 30th July 2005 with the result the said order has become final. It is also not disputed that the project, where the petitioner was initially appointed and from where the petitioner's services were terminated though were terminated by the Managing Director Cooperative Federation UP., was situated at Halduchaur, Haldwani, district Nainital and even after creation of State of Uttaranchal and also after signing the MoU between the two Federations, is still situated at Halduchaur, district Nainital, which comes under the territorial jurisdiction of State of Uttarakhand. None of the parties have declined that MoU was arrived at between the two Federations, in which Managing Director of P.C.F., Managing Director C.M.F., Joint Manager-Administration P.C.F. and Joint Manager Finance P.C.F. were the signatories. 9. None of the parties have declined that MoU was arrived at between the two Federations, in which Managing Director of P.C.F., Managing Director C.M.F., Joint Manager-Administration P.C.F. and Joint Manager Finance P.C.F. were the signatories. 9. From perusal of MoU, it illustrates that the project Soyabeen Evam Vanaspati Pariyojana, Halduchaur, Haldwani was transferred to C.M.F. alongwith the Cooperative Drugs Factory Ranikhet, Rosin Processing Factory Haldwani, Cold Storage Kashipur with the field staff working in Garhwal and Kumaun. Since at the time of signing of MoU, the petitioner was neither working in PC.F. or C.M.F., as the judgment was passed on 30-07-2005 and the MoU in respect of assets and liabilities between the two Cooperative Federations was signed on 06-11-2004 to be implemented w.e.f. 01-01-2005. In case, the petitioner is to be reinstated, he should be reinstated only in the project from where his services were terminated. The services of petitioner were terminated while he was working with Soyabeen Evam Vanaspati Pariyojna, Halduchaur, Haldwani, district Nainital, therefore submission of the learned counsel for the respondent nos. 1, 2 & 5 that it is the respondent no. 3 who has to reinstate the petitioner, cannot be accepted and, as such, is rejected. 10. Another argument of learned counsel for the respondent nos. 1,2 & 5 that as per Clause-5 of the MoU, the C.M.F. is not liable for payment of any financial or legal responsibilities arisen prior to signing of MoU between the two Cooperative Federations. But in my opinion, the respondents are misinterpreting the Clause-5 of the MoU, which relates to the payments to be made by the Federation or the payments, which are to be made by the Federation legally. It does not mean that the person who was appointed in the project, which was situated in the State of Uttarakhand and lateron was transferred to C.M.F. by means of MoU arrived at between the two Cooperative Federations, would not be reinstated by the C.M.F., in case, the termination order was passed prior to bifurcation of the Federation is quashed by the competent authority. 11. Learned counsel for the petitioner has submitted that the petitioner would not claim for the back wages and the respondents be directed to make payment of salary of the petitioner from the date he is reinstated. 12. For the reasons stated above, the writ petition is allowed. The respondent no. 11. Learned counsel for the petitioner has submitted that the petitioner would not claim for the back wages and the respondents be directed to make payment of salary of the petitioner from the date he is reinstated. 12. For the reasons stated above, the writ petition is allowed. The respondent no. 2 is directed to permit the petitioner to join his duties in pursuance of the order dated 30-07-2005 passed by this Court in writ petition no. 856 (ss) 2001. No order as to costs.