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2012 DIGILAW 218 (UTT)

Firoz Mukhtar v. Uttarakhand Jal Sansthan

2012-05-08

TARUN AGARWALA

body2012
JUDGMENT : 1. This petition has been filed by the son of Parvez Mukhtar, who died before being reinstated in service. The petitioner, being the son of the deceased, has filed the present writ petition seeking a writ of mandamus commanding the respondent Uttarakhand Jal Sansthan to give an appointment on compassionate grounds on a Class-III post. 2. The facts leading to the filing of the writ petition is, that the petitioner’s father was appointed as a Clerk on a temporary basis in the year 1970 in the Water Supply & Sewerage Department of the Nagar Palika, Roorkee and his services was regularized in the year 1971. The services of the petitioner’s father was terminated on 25.02.1991. Being aggrieved, the father of the petitioner raised an industrial dispute with regard to the validity and legality of his termination. The dispute was referred for adjudication to the labour court. The labour court gave an award dated 30.03.1998 holding that the termination of petitioner’s father was valid. The petitioner’s father thereafter filed a writ petition, which was allowed by an order dated 01.10.2001. The award of the labour court was set aside and the matter was remitted back to the labour court to decide the matter afresh. The labour court, thereafter, reconsidered the matter and gave a fresh award dated 30.01.2003 holding that the order of termination passed by the Nagar Palika Parishad, Roorkee was illegal and accordingly directed the employer to reinstate the petitioner’s father with full backwages with continuity of service. The Nagar Palika Parishad, being aggrieved by the said award, filed a writ petition for the quashing of the whole award. 3. Prior to the award, the Water Supply & Sewerage Department of Nagar Palika Parishad was taken over by the Uttarakhand Jal Sansthan w.e.f. 29.08.2002. Consequently, when the said writ petition was filed Uttarakhand Jal Sansthan was also impleaded as a party. The High Court, while considering all aspects of the matter, dismissed the writ petition of Nagar Palika Parishad by a judgment dated 22nd September, 2005 with a slight modification that instead of 100% backwages, the petitioner’s father was entitled for 50% backwages from the date of the award. The High Court held that in view of the provision of Section 18 (3)(c) of the Industrial Disputes Act, the successor Uttarakhand Jal Sansthan was liable to implement the award of the labour court. The High Court held that in view of the provision of Section 18 (3)(c) of the Industrial Disputes Act, the successor Uttarakhand Jal Sansthan was liable to implement the award of the labour court. This direction was not liked by the Jal Sansthan and, accordingly, the Uttarakhand Jal Sansthan filed a Special Leave Petition before the Supreme Court questioning the direction of the High Court. During the pendency of the Special Leave Petition, the petitioner’s father died on 24.02.2006 and inspite of getting knowledge of this fact, the Jal Sansthan failed to file a substitution application. Consequently, the special leave petition was dismissed as abated on 25th August, 2009. A review application was filed which was also dismissed. Consequently, the order of the High court stood affirmed and was liable to be implemented. 4. Pursuant to the direction of the High Court, the petitioner, who is the son of the deceased, immediately applied for appointment on compassionate grounds. This application remained pending and, after four years, the petitioner was constrained to file the present writ petition seeking a writ of mandamus commanding the respondents to give him an appointment on compassionate grounds. 5. The respondents have taken a strange stand in their counter affidavit, namely, that since they could not reinstate the petitioner’s father pursuant to the judgment of the High Court, the petitioner’s father was consequently not a workman and, therefore, the petitioner further was not an employee of Jal Sansthan and was not liable to be considered for appointment under the Dying-in-Harness Rules, 1974. 6. Having heard the learned counsel for the parties, the court is of the opinion that once an order of termination is set aside by the labour court, the consequence is that the petitioner’s father immediately becomes a workman of the employer and is deemed to be on the rolls of the employee’s register. Reinstatement is consequential action on the part of the employer upon the order of termination being set aside. It is irrelevant whether the workman has been reinstated or not. Once the order of termination is set aside, the petitioner’s father’s name is automatically entered in the rolls of the employee’s register. Since there was an order of the High Court for the Jal Sansthan to comply with the award, it became the onerous duty of the Jal Sansthan to reinstate the petitioner’s father. Once the order of termination is set aside, the petitioner’s father’s name is automatically entered in the rolls of the employee’s register. Since there was an order of the High Court for the Jal Sansthan to comply with the award, it became the onerous duty of the Jal Sansthan to reinstate the petitioner’s father. By not doing so, the liability of the Jal Sansthan does not come to an end and the petitioner’s father would be deemed to be a workman of Jal Sansthan pursuant to the award of the labour court as modified by the judgment of the High Court which has attained finality. Once the petitioner’s father becomes a workman and dies in harness on 24th February 2006, any heir of the deceased could apply for appointment under the Dying-in-Harness Rules. The petitioner’s application has remained pending since 2006. Initially, the petitioner was intimated that there was an interim order granted by the Supreme Court but after the dismissal of the S.L.P. in the year 2009, no action whatsoever has been taken by the respondents inspite of reminders being written by the petitioner. 7. In the light of the stand taken by the respondents in their counter affidavit, it is clear that any direction to the respondents to consider the petitioner’s application would be an exercise in futility since the mindset of the respondents has been clearly indicated in their counter affidavit. The court consequently finds it to be a fit case where a positive direction should be issued to the respondents. 8. In the light of the aforesaid, the writ petition is allowed and a writ of mandamus is issued to the respondents directing to give a suitable employment to the petitioner on a post on which the petitioner fulfills the educational qualification. This exercise would be carried out by the respondents within three months from the date of production of a certified copy of the order.