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2015 DIGILAW 1501 (RAJ)

Divisional Manager, RSRTC v. Dev Narayan Mishra

2015-08-11

AJIT SINGH, SUNIL AMBWANI

body2015
JUDGMENT : Hon'ble AMBWANI, J.—The delay in filing the Special Appeals is satisfactorily explained and is condoned. The applications under Section 5 of the Limitation Act are allowed. 2. The respondent-workman was engaged as a Conductor in the Rajasthan State Road Transport Corporation (for short, "the Corporation") on daily wages on 6.4.1983. His services were terminated on allegations of misconduct on 27.8.1984. The respondent approached the Industrial Tribunal against the order of termination. By an Award dated 20.11.1996, the termination was held to be illegal and he was made entitled for reinstatement with continuity in service. On the question of back wages, the Tribunal awarded 75% wages. In the same Award, the Tribunal observed that in this case, there does not exist any dispute for making the workman permanent on 6.4.1983 and not paying him salary in the regular pay scale even after he had completed 240 days. 3. The Corporation filed S.B. Civil Writ Petition No. 6263/1997 challenging the Award of the Tribunal. The Court while admitting the writ petition on 27.11.1997 stayed the operation of the Award. The application under Section 17B of the Industrial Disputes Act, 1997 was allowed on 28.7.1998 and that instead of paying the last drawn wages in terms of Section 17B, the Corporation opted to reinstate the workman in the year 1998. Since than he is working on daily wages under the Corporation. 4. We are informed that the respondent-workman has attained the age of superannuation and has been relieved while working as daily wager. 5. The workman filed S.B. Civil Writ Petition No. 10446/2010 Dev Narain Mishra vs. RSRTC & Anr. praying for regularization of his services as he had worked for more than 10 years after reinstatement in the year 1998. Learned Single Judge relied upon the Rajasthan Various Service (Second Amendment),Rules 2009, made in pursuance to the directives of the Supreme Court in Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. (2006) 4 SCC 1 ) (Para 53), and held that the workman, who has continued in service for 10 years or more without the intervention of the Court would include a person in whose favour an Award has been made after final adjudicatory process. vs. Uma Devi & Ors. (2006) 4 SCC 1 ) (Para 53), and held that the workman, who has continued in service for 10 years or more without the intervention of the Court would include a person in whose favour an Award has been made after final adjudicatory process. In the present case, the respondent was not re-engaged and had continued in service since 1998 pursuant to the order passed by the Court and consequently, direction was issued that the Management will consider the case of the petitioner for regularization and pass appropriate order within three months from the date the copy of the order is produced before them. 6. We have gone thorough the Award and find that the workman was found to have committed misconduct in allowing 10 passengers to travel without tickets and on which his services were terminated on 27.4.1984. The Tribunal allowed the Corporation to lead evidence on misconduct. After considering the record, the Tribunal on the charge of misconduct, found that after 21 days training, the workman was appointed on 27.10.1983 and on 16.11.1983, he was found to be carrying 4 passengers without tickets, on which his name was removed from the duty chart. He was punished for the misconduct on 16.11.1983 and on his application to allow him an opportunity to work, he was again taken back on 7.12.1983 as daily wager and thus, since he was already punished on the charge of misconduct, he could not have been punished all over again on the same charge by terminating his service. The Tribunal found that the respondent workman was entitled for reinstatement. On the back wages, however, the order was confined to 75% on the ground of delay in raising the industrial dispute. On the question of making him permanent, the Tribunal observed that such a question cannot be considered when the industrial dispute was raised on the validity of termination and consequential relief. 7. We do not find any error of law in the Award of the Tribunal and the order of learned Single Judge upholding the Award. 8. The D.B.Civil Special Appeal (W) No. 1108/2014 is, accordingly, dismissed. D.B. Civil Special Appeal (W) No. 1110/2014; 9. On the question of direction for consideration for regularization, we are of the view that learned Single Judge has erred in law in allowing consideration of regularization of petitioner's services as daily wager. 8. The D.B.Civil Special Appeal (W) No. 1108/2014 is, accordingly, dismissed. D.B. Civil Special Appeal (W) No. 1110/2014; 9. On the question of direction for consideration for regularization, we are of the view that learned Single Judge has erred in law in allowing consideration of regularization of petitioner's services as daily wager. The observations made by the Constitution Bench of the Supreme Court in para 53 of the judgment in Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. (supra) for one time regularization of the employees, whose appointments were irregular, are not applicable to the daily wagers, or employees on contract and in respect of those employees for whom no substantive post is available. Learned Single Judge has relied on Rajasthan Various Service (Second Amendment), Rules, 2009. The Rules of 2009, made under the proviso to Article 309 of the Constitution of India are applicable to Rajasthan Class IV servants, who are in the Government service. They are not applicable to the Public Sector Corporations. They have been wrongly mentioned in the judgment. 10. There are no pleadings to the effect, nor any material that any procedure was followed when the respondent was appointed on daily wages, or that there was any sanctioned post, or substantive vacancy for appointment of the respondent as Conductor on daily wages. The observations made in para 53 of the judgment in Uma Devi's case (supra), are not applicable to those employees, who have completed 10 years of service working as daily wager. The appointment on daily wages does not entail any rights on the incumbent. His services came to an end as soon as requirement of his work was over. In Uma Devi's case (supra), the employees working on daily wages or contract, have been explicitly excluded for being considered for regularization. The observations in para 53 have been rightly understood by the State of Rajasthan in making the Rules of 2009, providing for regularization of those employees, who are appointed irregularly, on substantive posts, and were working on the day, when the Rules came into force, continuously for 10 years or more. The observations in para 53 have been rightly understood by the State of Rajasthan in making the Rules of 2009, providing for regularization of those employees, who are appointed irregularly, on substantive posts, and were working on the day, when the Rules came into force, continuously for 10 years or more. The observations in para 53 of the judgment in Uma Devi's case, were made to avoid hardships, to be caused to the employees, who were irregularly appointed on substantive posts, and have continued in service for more than 10 years on 10.4.2006, when the judgment in Uma Devi's case was rendered. The observations are not available to those, who are working on daily wages or contract. 11. Reliance on the judgment in Nihal Singh and Ors. vs. State of Punjab and Ors., AIR 2013 SC 3547 , is misplaced, inasmuch as in that case, a two Judge Bench of the Supreme Court was considering regularization of those employees appointed on daily wages in bank, who were earlier appointed as Special Police Officers during the terrorism in the State. It was a special case, and that in any case, two Judge Bench judgment in Nihal Singh' case, will have no precedence over the Constitution Bench Judgment in Uma Devi's case. 12. The D.B. Civil Special Appeal (W) No. 1110/2014 is partly allowed. The direction given by learned Single Judge to consider the respondent for regularization, is set aside. 13. A copy of the judgment will be placed in the connected file.