Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 475 (RAJ)

Deen Mohd. v. Industrial Tribunal

2014-02-13

VINEET KOTHARI

body2014
Judgment 1. The petitioner has filed the present writ petition against the award dtd.23.12.2008 passed by the learned Labour Court, Jodhpur in Industrial Dispute Case No.10/2004 – Deen Mohd. V/s Managing Director, Paschimi Rajasthan Dugdh Utpadak Sahkari Sangh, Jodhpur. 2. The petitioner – workman, Deen Mohd. unfortunately died on 4.7.2013 during the pendency of this writ petition while serving the respondent -Paschimi Rajasthan Dugdh Utpadak Sahkari Sangh, Jodhpur as daily rated employee having been appointed as casual labour on daily wage basis way back on 30.10.1982 at the rate of Rs.12/-per day. His employment continued upto 10.12.1989, when his services were terminated by an oral order. 3. On a writ petition filed by him, though the petitioner failed before the learned Single Bench of this Court, the Division Bench allowed his appeal No.405/1996 – Deen Mohd. V/s State of Rajasthan and a copy of that order is placed on record as Annex.2. The relevant extract of Division Bench of order is quoted below for ready reference: “We are of the opinion that the nomenclature whether he is appointed as employee on daily wages or on contract basis is not of the essence. What is of essence is existence of relation between the employee and employer. The petitioner has been discharging the services for respondents as equipment cleaner. Initially he was drawing emoluments on daily rates basis and then he was paid monthly wages. The petitioner was directly employed under the employment of respondents for discharging the duties under his supervision at his establishment. Therefore, there is no reason to doubt that relation between the petitioner and the respondent was that of an employee and employer and not an engagement on contract basis. We are of the opinion that termination of petitioner's services from the respondent's – Establishment by the respondents was squarely covered by the definition of retrenchment and had to conform to the provisions of Chapter 5A of the Industrial Disputes Act. We are also not inclined that after the dispute has been raised and the matter is pending here for almost a decade to relegate the parties to get it adjudicated before the Labour Court moreover, when the facts are admitted. The learned counsel for the appellant during the course of arguments has stated that in the totality of the circumstances, the appellant would not insist for back wages if he reinstated in service. The learned counsel for the appellant during the course of arguments has stated that in the totality of the circumstances, the appellant would not insist for back wages if he reinstated in service. In these circumstances, we allow the appeal as well as writ petition, set aside the order under appeal and also set aside the order of termination passed against the petitioner orally and direct reinstatement of the petitioner with all other consequential benefits except the benefit of any arrears of wages anterior to delay of this order. No order as to costs. Sd/- sd/- (SUNIL KUMAR GARG), J. (RAJESH BALIA), J. 4. The petitioner was actually reinstated back in service on 14.5.2001 in pursuance of aforesaid Division Bench order of this court and since then, till the date of his death, he served the respondents on daily wages only. In the present writ petition, the petitioner challenged the award passed by the Industrial Tribunal, Annex.11 dtd.23.12.2008, whereby on the basis of Supreme Court decision in the case of State of Karnataka V/s Uma Devi, reported in 2006 (4) SCC 1 , the petitioner workman claimed the benefit of regular pay scale and regularisation after completion of 10 years of service in the capacity of daily rated worker. The same was denied by the Industrial Tribunal only on the ground that since the petitioner was reinstated on account of order of this court, therefore, the exception provided in para 53 of the decision of the Hon'ble Supreme Court in the case of Uma Devi (supra) would not cover the case of present petitioner and therefore, he was not entitled to any regularisation or regular pay scale as claimed by him upon completion of 10 years of his services as a daily rated workman. 5. Being aggrieved by the said award of the Industrial Tribunal, the petitioner approached this Court by way of present writ petition, which was filed on 24.2.2009 and on account his death on 4.7.2013, his legal representative were taken on record by the order of coordinate bench of this Court on 25.7.2013 allowing the appliation being IA No.7518/22013. 6. The learned counsel for the petitioner, Mr. 6. The learned counsel for the petitioner, Mr. Manoj Bhandari urged that the effect of the Division Bench order in favour of the present petitioner setting aside the termination order even though oral and directing reinstatement of the petitioner with other consequential benefits except the arrears of back wages, was to treat the period of service as continuous right from the date of initial appointment i.e. 30.10.1982 and after completion of 10 years of said service, the ratio laid down by the Hon'ble Supreme Court in the case of Uma Devi (supra) clearly entitled the petitioner to the regularisation in service and regular pay scale. In the alternative, he urged that atleast 7 years period from 30.10.1982 (the date of initial appointment) to 10.12.1989 (the date of termination by oral order) and then 14.5.2001 (the actual reinstatement in pursuance of Division Bench order) to 4.7.2013 (the date of death) computes to nearly 20 years of services and therefore, the benefit of judgment of Hon'ble Supreme Court in the case of Uma Devi (supra) para 53 deserves to be given to him and the learned Industrial Tribunal has not properly appreciated the quoted para 53 in para 14 of its order and wholly misconstrued the words “intervention of orders of the Court or of Tribunals”, the said benefit of regularisation has been denied to the present petitioner. He submitted that such intervention was meant only to indicate the situation of continuation in service on account of interim order of the Court, which intervened in the delinking of the relationship of employer and employee on account of impugned termination and not the final effect of judgment of the Court which in the present case was by the Division Bench of this Court giving him all consequential benefits holding termination by oral order as illegal cannot be said to be reinstatement on account of 'intervention of the court' and therefore, the entire period of said delinking or snapping of the relationship between the period 10.12.1989 to 14.5.2001 has to be treated as notional continuation of his services in pursuance of the Division Bench order and this cannot be said to be on account of intervention of Court's order. Irrespective of that also, the petitioner rendered the actual service initially for the period 30.12.1982 till 10.12.1989 and thereafter from 14.5.2001 till the date of his death on 4.7.2013 and therefore, viewed from any angle, he had actually served for about 20 years even if the notional period of his service is ignored for the time being, more than 10 years in the respondent – Society and consequently, he was definitely entitled to the regularisation and regular pay scale after completion of 10 years of service in terms of judgment of Hon'ble Supreme Court in the case of Mineral Exploration Corporation Employees' Union V/s Mineral Exploration Corpn. Ltd. reported in 2006 (6) SCC 310 explaining the para 53 of the Uma Devi's case. 7. Para 53 of the judgment in the case of Uma Devi is as follows: “53. One aspect needs to be clarified. There may be cases of irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarajan (supra) and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within a six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 8. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 8. In the case of Mineral Exploration Corporation Employees' Union (supra), the Hon'ble Supreme Court held as under: “In para 53 of Umadevi case, (2006) 4 SCC 1 , the Supreme Court directed the Union of India, the State Governments and their instrumentalities to regularise as a one-time measure, the services of such irregularly appointed workmen, who had worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being not employed.” 9. Therefore, Mr. Manoj Bhandari, for the workman prayed that benefit of regularisation and regular pay scale may be given to the petitioner from the year 1982, if the notional period is taken into account or atleast after completion of 3 years from 14.5.2001 taking the initial 7 years of services and 3 years after the actual reinstatement in pursuance of Division Bench order. 10. On the other hand, the learned counsel for the respondent – Society, Mr. D.K. Parihar relying upon the Division Bench decision of this court in the case of Keshav Puri V/s Union of India reported in 1979 RLW 509 in which it was held that when a Government Servant files an appeal against his compulsory retirement and who died during the pendency of appeal, the right to sue did not survive as it was a personal contract of service and on the death of the employee, the legal representatives are not entitled to any relief after death of petitioner Deen Mohd. 11. Taking up the last submission of the respondent first, this Court is of the opinion that the said submission has no force and deserves to be rejected. The legal representations of the petitioner Deen Mohd. with the right to sue have already been taken on record by the order of coordinate bench of this Court on 25.7.2013. 11. Taking up the last submission of the respondent first, this Court is of the opinion that the said submission has no force and deserves to be rejected. The legal representations of the petitioner Deen Mohd. with the right to sue have already been taken on record by the order of coordinate bench of this Court on 25.7.2013. That order has not been assailed at any appropriate forum by the respondent – Society and the same cannot be reviewed by this Court sitting singly, even if it was assumed for argument sake that the contention raised by the learned counsel for the respondents had any force. The argument about the abatement of appeal on the death of employee is not a sufficient ground to disentitle the legal representatives of present petitioner, Deen Mohd. from getting financial benefits and other benefits, which are likely to flow to the petitioner, if the direction of regularisation of his service after 10 years of working on daily rates employee was to be given in view of judgment of the Hon'ble Supreme Court in the case of Uma Devi (supra), particularly with reference to para 53 of the said judgment. 12. The learned Labour Court in the impugned order in para 15 has clearly fallen into error in misconstruing the words “but without intervention of Court's order or Tribunal” in para 53 of the judgment of the Hon'ble Supreme Court in the case of Uma Devi (supra). The employment of the present petitioner was not a litigious employment as held by the Industrial Tribunal. The employment of the present petitioner was not on account of intervention of Court's order as contended, but was in fact to give effect to the Division Bench judgment of this Court in the case of present petitioner himself which undisputably became final as the respondent does not appear to have challenged the same before the Hon'ble Supreme Court. The said Division Bench judgment in favour of the petitioner could not be a useless order for the present petitioner and the respondents in fact gave effect to the said judgment by actually reinstating him back in service soon after the judgment on 14.5.2001 and even thereafter the petitioner continued in the same status of daily wages employee till the date of his death on 4.7.2013. Such reinstatement could not be said to be on account of 'intervention' of the Court, but was actually to give effect to the orders of the Court, which was only the legal consequences of Division Bench order in his favour. Therefore, the learned Labour Court has erred in misapplying the para 53 of the judgment of Hon'ble Supreme Court in the case of Uma Devi in the present case. 13. The petitioner and his legal representatives now after his death would be certainly entitled to the monetary and other benefits, which were bound to flow to him on account of benefit of aforesaid para 53 of the judgment of Hon'ble Supreme Court in the case of Uma Devi (supra) and regularisation after 10 years of his service on the basis of daily wages or as a casual worker. The said 10 years of de facto employment with the respondents were completed by him after adding 3 years after the date of his actual reinstatement on 14.5.2001, namely in the year 2004, if the period of notional continuation of service from 10.12.1989 to 14.5.2001 was to be not taken into account for this purpose, but there is no reason to treat the said petitioner as still a casual employee or daily rated employer after 2004 till 2013 when he died. Therefore, to this extent, the petitioner was clearly entitled to the benefit of judgment of Hon'ble Supreme Court in the case of Uma Devi (supra) and was entitled to the regularisation in service and grant of regular pay scale and other consequential benefits. 14. Thus, the present writ petition deserves to be allowed and the same is accordingly allowed and setting aside the impugned award of the Industrial Tribunal to the extent of denial of relief of regularisation to the petitioner, it is directed that the respondents shall treat the petitioner Deen Mohd. as regularized in service from 14.5.2004 after 3 years from the date of actual reinstatement on 14.5.2001 in pursuance of the Division Bench Judgment and shall be conferred the benefit of the regular pay scale from that date and after adjustment of the daily wages already paid to him, the arrears would be payable to the legal representatives of the deceased Government servant now on record. The same may be paid within a period of three months from today to them. The same may be paid within a period of three months from today to them. If the said arrears are not paid within a period of three months from today, the same will bear simple interest @9% per annum. The other benefits on account of aforesaid Division Bench judgment in favour of the petitioner, if any accruing to them, are not being adjudicated upon in the present case and the petitioner or his legal representatives will be free to avail appropriate legal remedy for the same. No order as to costs. A copy of this order be sent to the parties concerned forthwith.