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2011 DIGILAW 2593 (HP)

Jeewan Lal v. State of H. P.

2011-12-28

V.K.AHUJA

body2011
JUDGEMENT V.K. Ahuja, J. : This is a petition filed by the petitioner under Article 226 of the Constitution of India, for quashing the award made by the learned Labour Court dated 18.3.2006. 2. A notice of the petition was issued to the respondents, who filed replies, except respondent No. 4, who did not put upappearance inspite of service and did not choose to file any reply or contest the petition. 3.I have heard the learned counsel for the parties and have gone through the record of the case. 4. The submissions made by the learned counsel for the petitioner were that the petitioner was a workman and he had completed 240 days of service and as such, was entitled to the protection of Section 25-F of the Industrial Disputes Act, 1947. It was contended that since the services of the petitioner were terminated without issuance of notice to him, he is entitled to the protection under the Act. 5. A reference was made to the learned Labour Court, which is reproduced as under:- “Whether the termination of Sh. Jeewan Lal, part time worker by Pradhan Gram Panchayat Lower Rewalsar, Distt. Mandi, H.P. and Block Development Officer Rewalsar, Distt. Mandi, H.P. without any prior notice is legal and justified. If not, to what relief of service benefits and amount of compensation Sh. Jeewan Lal is entitled to? 6. The learned Labour Court entered into the reference and concluded as under:- “However, there is no evidence on record led by the claimant in rebuttal to the contentions of the respondents that the provisions of section 135 of the H.P. Panchayat Raj Act, had, not come to be complied with by the Gram Panchayat Rivalsar before proceedings to appoint the claimant against the post of Asstt. Secretary. Such non­adherence though mandatorily required for clothing the appointment of the claimant with legality renders his appointment to be not inconformity with law. Merely the resolution of the Panchayat cannot confer any right upon the claimant to assert that he has been lawfully appointed. Being so, consequently even, if, the claimant has rendered the legally requisite period of qualifying service under the respondent, he cannot assert that he ought to receive the protection of the provision of section 25-F of the I.D. Act, as obviously, in my view, there is force in the contentions of the ld. Being so, consequently even, if, the claimant has rendered the legally requisite period of qualifying service under the respondent, he cannot assert that he ought to receive the protection of the provision of section 25-F of the I.D. Act, as obviously, in my view, there is force in the contentions of the ld. Counsel for the respondent that the protection of the statutory provisions ought not to be made available to persons, who, have come to be appointed contrary to the provisions of law, like the claimant, who then cannot assert that on his completion of the requisite period of qualifying service under the respondent, he was entitled to receive the protection of the provision of section 25-F of the I.D. Act, as his very entry into service is legally flawed. Both these issues are answered accordingly.” 7. Being aggrieved by the said award passed by the learned Labour Court, the present petition has been filed challenging the order. 8. During the course of arguments, learned counsel for the petitioner submitted that the Panchayat is also covered by the term ‘industry’ and as such, the petitioner was entitled to the protection under Section 25-F of the Industrial Disputes Act. He submitted that there is a decision to this effect, but no such decision was relied upon or cited during the course of arguments. The Pradhan of the Panchayat had appointed the petitioner against the post of Assistant Secretary. The Panchayat was not involved in any work related to industry or construction of any road etc. For day- to-day work, the petitioner had been appointed to the post of Assistant Secretary. A bare reading of the word ‘industry’ under Section 2(j) of the Industrial Disputes Act, shows that prima facie, it is clear that the Panchayat was not covered under the term ‘industry’ and, therefore, the protection available to a workman under Section 25-F of the Industrial Disputes Act that a retrenchment notice be issued or compensation has to be paid, does not apply to the petitioner. 9. Learned counsel for the petitioner had relied upon the decision in Mohan Lal Vs. 9. Learned counsel for the petitioner had relied upon the decision in Mohan Lal Vs. The Management of M/s. Bharat Electronics, Ltd., AIR 1981 Supreme Court 1253, to substantiate his plea, but the said decision is not applicable to the facts of the case since it was laid down by their Lordships to this effect only that a workman can complain of retrenchment being not in consonance with Section 25-F, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. 10 The learned Labour Court has taken the question that the appointment of the petitioner as Assistant Secretary was not in accordance with the provision of Section 135 of the Himachal Pradesh Panchayati Raj Act, 1994, which reads as under:- “135. Other Officers and servants of Panchayats.- (1) Subject to the provision of section 134 every Panchayat may, with the previous approval of prescribed authority, appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. 11. It is clear that the prior sanction of the Government was required before the petitioner could be appointed to the post of Assistant Secretary. No prior sanction was taken by the Panchayat and Pradhan respondent No. 4 in his individual capacity appointed the petitioner against the rules since there was no sanction and the post was also not advertised. These conclusions have been drawn by the Labour Court on the basis of the facts and those facts cannot be disputed before this Court and which cannot look into the evidence again in this regard. Once the petitioner has been appointed to the post against the rules, such appointment can be said to have been made by respondent No. 4 in his individual capacity and he cannot bind the Panchayat or the State Government with such an illegal appointment. 12.The respondents in their reply supported by an affidavit of the Officer of the rank of Block Development Officer had pleaded that the petitioner was appointed at his own risk by the Pradhan, since the petitioner is the relative of the said Pradhan and the then Secretary, Panchayat. 12.The respondents in their reply supported by an affidavit of the Officer of the rank of Block Development Officer had pleaded that the petitioner was appointed at his own risk by the Pradhan, since the petitioner is the relative of the said Pradhan and the then Secretary, Panchayat. Once the Pradhan could not have participated in the selection of any post under the Panchayat in which his relative was to be interviewed, which necessarily follows that he cannot be a party to the process of appointment of his relative against a post, for which he cannot take interview. 13. These allegations were not denied by the petitioner by filing any rejoinder or by filing the reply supported by an affidavit of respondent No. 4, the then Pradhan, who was a party to the petition, but was proceeded against ex parte, since he did not put up appearance. Once the appointment was clothed with illegality and was not in accordance with the rules, such appointment can be said to have been made by the Pradhan in his personal capacity and he cannot bind the Panchayat or the State Government for payment of the pay and no protection has been given under the Industrial Disputes Act, to such an illegal appointment. The payment of the pay of the petitioner shall be made by respondent No. 4 from his personal funds and in case, some amount has been paid out of the funds of the Panchayat, that shall be got recovered from respondent No. 4 and it shall be the duty of the Block Development Officer to realize the amount so illegally paid to the petitioner. 14. I may make a reference to the decision of the Hon’ble Apex Court in Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., AIR 2006 Supreme Court 1806, wherein their Lordships had observed that the appointment dehors due process of selection envisaged by constitutional scheme, confers no right on appointee for regularization in violation of constitutional scheme. The Court cannot direct regularization to be treated as permanence in service, even though the employee may have been continued for long. The observations made in Para-34 of the judgment are relevant and are being reproduced below:- “Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. The observations made in Para-34 of the judgment are relevant and are being reproduced below:- “Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. “ 15. From which ever angle, the facts of the case are looked into, the order passed by the learned Labour Court does not suffer from any illegality to be interfered with by way of extra ordinary jurisdiction to be exercised under Article 226 of the Constitution of India. The petition is accordingly dismissed, with no order as to costs, so also the pending miscellaneous application(s), if any.